Georgia DUI Law: 1999 Appellate Case Construction of Georgia's DUI Laws
By J. Michael Mullis, Attorney at Law, The DUI Guy
Georgia DUI Lawyer 1-877- 638-4489 (Toll Free)
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1999 Georgia DUI Law
Case Law Synopsis
By J. Michael Mullis
Georgia DUI Lawyer

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THIS IS NOW AN ARCHIVAL PAGE.  IT CONTAINS 1999 GEORGIA CASE LAW.  NO NEW CASES INTERPRETING GEORGIA DUI LAW WILL BE ADDED TO THIS PAGE.

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CASES OF SPECIAL IMPORTANCE
IMPLIED CONSENT
INTOXILYZER 5000
ARTICULABLE SUSPICION
ROADBLOCKS
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JURY CHARGES
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PROBABLE CAUSE TO SEARCH
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STATUTE OF LIMITATIONS
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RECENT DEVELOPMENTS IN GEORGIA CASE LAW

 

Cases of Special Importance

 

OCGA § 40-6-391 (a)(6) Ruled Unconstitutional

 

Love v. State 271 Ga. 398 (June 1, 1999)

In a June 1 opinion, the Georgia Supreme Court held that the portion of the DUI statute that distinguished between medically prescribed marijuana and recreational use marijuana is unconstitutional.  Prior to this case, if a blood or urine test revealed marijuana metabolites in your system, and you had NO prescription for the marijuana, you were per se in violation of the DUI statute.  On the other hand, if a blood or urine test revealed marijuana metabolites in your system, and you had a prescription for marijuana, the State did not have a per se case, but would have to prove that the ingestion of marijuana caused you to be a less safe driver.

This case does not necessarily mean that a DUI marijuana case goes away.  It only means that for the state to have a chance at success, it will have to proceed under the less safe portion of the statute rather than the per se portion.

 

Intoxilyzer 5000 - Foundation

 

Casey v. State A99A2092; 1999 WL799537 (October 8, 1999)

In Georgia DUI cases, where a breath test is requested on the Intoxilyzer 5000 (the only official breath testing device), the Intoxilyzer 5000 training manual requires a twenty-minute wait in a controlled environment to ensure that the breath sample is not contaminated with extraneous alcohol from such sources as a last drink, use of mouthwash, burping, belching or vomiting. If, for example, someone belches during the twenty-minute waiting period, this can introduce alcohol into the mouth, and the waiting period should be restarted.  Up until now, the Appellate Courts have held that noncompliance with the waiting period goes to the weight and credibility of the test result, not its admissibility.  However, in an October 8th case, defendant's initial breath test indicated the presence of mouth alcohol.  The officer did not wait the required twenty minutes before retesting. The Court of Appeals said that the failure to observe the twenty-minute waiting period prior to retesting "compromised the very foundation for admission of defendant's breath test . . ." [DUIGUY Note: This same logic can and should be applied anytime the above conditions are not met on the initial test].

 

Top of the Document

Implied Consent Notice

 

Implied Consent Discovery

            In Townsend v. State, 236 Ga.App. 530, 511 S.E.2d  587 (1999) the Court recognized that under the provisions of O.C.G.A. See. 40‑6‑392(a)(4) a defendant is granted "broader discovery rights than did earlier criminal discovery procedures which allowed discovery of only written test results."  (The statute provides that "upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.")  Under this subsection "a defendant now has the right to subpoena memos, notes, graphs, computer print‑outs, and other data relied upon by a state crime lab chemist in obtaining gas chromatography test results."  Unfortunately for Townsend, however, the Court found his subpoena overbroad and any error harmless.

 

Implied Consent Independent Test Unreasonably Denied

In Nawrocki v. State, 235 Ga. App. 416, 510 S.E.2d 301 (1998), the Court reversed the denial of the defendant's motion to suppress the results of his State-administered breath test.  After submitting to the State's test, and while en route to the jail, Nawrocki requested to be tested a second time on a State-operated breath testing machine.  His request was not accommodated.  This failure was deemed to be unreasonable by the Court.

            In Lambropoulous v. State, 234 Ga. App. 625, 507 S.E.2d 225 (1998), the defendant requested an independent blood test but expressed no preference as to a testing facility.  He was transported to the nearest hospital where his blood was drawn and tested.  He did not object to the facility at the time.  The Court rejected his contention that the procedure utilized by the police denied him his right to an independent test by personnel of his own choosing.  In the court's view, "the officer's action in taking [Lambropoulous] to the nearest hospital, and the department policy behind it, were reasonable."  Query: Some departments have a policy that the defendant will not be transported for independent testing unless he/she designates a specific facility to do the testing. Is this reasonable, if the defendant has no preference as to where he wants the blood testing done?

 

Implied Consent Scope of “Consent” to Implied Consent Testing

Several cases were decided during the past 18 months defining the scope of the consent for testing in D.U.I. cases.  Can the results of blood or urine testing of a driver informed of his implied consent rights under O.C.G.A. Sec. 40‑5‑67.1 be used to prove charges other than driving while under the influence?

In State v. Burton, 230 Ga. App. 753, 498 S.E.2d 121 ( 1998), State v. Long, 236 Ga. App. 445, 502 S.E.2d 298 (1998), and State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998), the answer was a resounding “no."   In these cases the driver was prosecuted for possession of a controlled substance based on positive implied consent blood or urine testing.  The implied consent rights warning read to these defendants stated that the testing was for "the purpose of determining if you are under the influence of alcohol or drugs" (O.C.G.A. Section 40‑5‑67.1(b)(3)).  It did not advise that the defendant could be prosecuted for felony possession of drugs by virtue of it being detected in the sample given.  This use of the evidence exceeded the scope of the consent given and the granting of the defendants' motions to suppress were affirmed in all three cases.

Burton and Long followed State v. Jewell, 228 Ga. App. 825, 492 S.E.2d 706 (1997). (See also State v. Frazier, 229 Ga. App. 344, 494 S.E.2d 36 (1997).  Jewell followed previous decisions which held that where a blood or urine sample is taken from a suspect the results of an analysis of the same may not be used for purposes of which the suspect was not advised and did not consent to.  In the court's view to do so would constitute a unreasonable search and seizure in violation of Fourth Amendment of the U.S. Constitution.  Beasley v. State, 204 Ga.App. 214, 419 S.E.2d 92 (1992) (Urine sample given as a condition of bond could not be used to prove possession of drugs found in sample); State v. Gerace, 210 Ga. App. 874, 437 S.E.2d 862 (1993) (Blood sample obtained in D.U.I. investigation could not be used as evidence that defendant's DNA was same as a previously unidentified rapist.)  Similarly, Turpin v. Helmeci, 271 Ga. 224, ___ S.E.2d ___ (S99A0453, 6-14-99), followed Gerace, Jewell, and Beasley, in holding that evidence obtained by implied consent cannot be used for purposes beyond the scope of that consent.

The approach taken in these cases would seem to be consistent with federal precedent. A consent to search must be the product of an essentially free and unrestrained choice by its maker. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973).  "When the consent of the person to be searched is the authority for the action, the scope of the consent must be measured by all of the circumstances and not only what a person says in response to a request.  The type, duration, and physical zone of intrusion is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken.  “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness ‑‑ what would the typical reasonable person have understood by the exchange between the officer and the suspect?’”  Florida v. Jimeno, 500 U.S. __, 111 S. Ct. 1801, 114 L. Ed. 2d 297, 302 (1991). “Consent may be as limited as the consenter wishes, and the search may not exceed the reasonably understood parameters. . . . The suspect is not required to call a halt when the search has gone beyond the scope of consent given; the burden remains on the State to show that the scope of the officer's search did not exceed the permission given." Springsteen v. State, 206 Ga. App. 150, 152, 424 S.E.2d 832 (1992). Accord: United States v. Strickland, 902 F.2d 937, (11th Cir. 1990); United States v. Blake, 888 F.2d 795 (11th Cir. 1989); United States v. Rackley , 742 F.2d 1266 (11th Cir. 1984); United States v. McBean, 861 F.2d 1570 (11th Cir. 1988); United States v. Milian‑Rodriquez, 759 F.2d 1558 (11th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985); Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977); United States v. Roark, 36 F.3d 14 (6th Cir. 1994).

            Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998), may have defined the limits of these principles.  Radcliffe was involved in an automobile accident in which he was not at fault. After the collision, the elderly driver of the other vehicle went into cardiac arrest and later died. Although Radcliffe did not show signs of being under the influence of alcohol or drugs, the investigating officer read Radcliffe his implied consent rights pursuant to O.C.G.A. § 40‑5‑67.1 (b), and Radcliffe agreed to submit to chemical tests of his blood and urine. (See O.C.G.A. § 40‑5‑55 requiring tests to be performed whenever anyone is involved in a traffic accident resulting in serious injuries or fatalities).  These tests showed the presence of marijuana in Radcliffe's blood. Radcliffe was convicted of driving with a controlled substance in his blood in violation of O.C.G.A. § 40‑6‑391 (a) (6).

Radcliffe contended that the implied consent warning failed to properly advise him of the purpose for which he was to be tested. [A person may be convicted of violating Section 40‑6‑391 (a) (6) "without the necessity of showing that the presence of such substance or substances impaired the person's driving ability."  Ryals v. State, 215 Ga. App. 51, 52‑53, 449 S.E.2d 865 (1994)].

While acknowledging that "the scope of the consent granted by a defendant to a test to determine alcohol or drug content of blood may be derived from the wording of the implied consent warning read to a defendant", the court applied the provisions of Section 40‑5‑55(a) to sustain the denial of Radcliffe's motion to suppress.  It provides that licensed drivers are deemed to have consented to testing "for the purpose of determining the presence of alcohol or any other drug."  Because the suspect is aware he is being tested "for a driving related offense" he is deemed to have been "properly advised" of the uses authorized by that statute in the court's view. The Radcliffe decision did not discuss Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995), which held the phrase "'driving under the influence . . . has a universally recognized and understood meaning so that reasonable persons could not differ as to its interpretation. . . . That meaning is that a person is under the influence of alcohol when it appears that it is less safe for such person to operate a motor vehicle." [Emphasis added].

Since Radcliffe was decided, the Georgia Supreme Court has ruled that an O.C.G.A. § 40-6-391(a)(6) “presence of marijuana” conviction is unconstitutional. Love v. State, 271 Ga.App. 398, ___ S.E.2d ___ (S99A0509, 6-1-99).  In a similar vein, the Court of Appeals has opined that without proof of a “causal connection” to impairment, felony vehicular homicide charges are not legally supportable. Miller v. State, 238 Ga.App. 61, ___ S.E.2d ___, (A99A0544, 4-28-99).

Radcliffe sought certiorari from the Georgia Supreme Court, but Certiorari was denied without opinion on February 5, 1999.  Radcliffe has filed a federal habeas corpus action, which is pending at this time.

            Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999), involved a conviction for 1st degree (felony) vehicular homicide, driving under the influence of marijuana and possession of marijuana and other less serious traffic offenses.  All other offenses were merged into the 1st degree vehicular homicide charge for sentencing purposes.  Importantly, the police testified that the defendant had sua sponte volunteered that he had smoked marijuana earlier in the evening.  Under these facts the Court of Appeals found no harmful error in the admission of the drug test results and affirmed the drug conviction.

 

Implied Consent Verbatim Reading of Rights Advisement – Is it “good enough for government work?”

 

In State v. Moncrief, 234 Ga. App. 871, 508 S.E.2d 216 (1998), held a verbatim reading of the implied consent rights advisement contained in O.C.G.A. See. 40-5-67.1 is no longer required.  Despite Moncrief’s arresting officer's attempt to read those rights to him "slowly, clearly, and painstakingly," he was apparently unable to read the card word for word.  The court applied a subsequent (March, 1998) amendment to O.C.G.A. § 40-5-67.1(b) to reverse the suppression of the State's breath test.  Moncrief was arrested in March 1997.  The March 1998 amendment provides that the notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged."  Apparently, reading skills are no longer required for traffic enforcement officers.  See also State v. McCabe, 239Ga.App. 297, 519 S.E.2d 760 (A99A1070, 6-24-99) and Sheridan v. State, 236 Ga.App. 350, 511 S.E.2d (1999) wherein the Court of Appeals held that the March 27, 1998 amendment to O.C.G.A. § 40-5-67.1(b), as described above, applied retroactively to arrests prior to March 27, 1998.

 

Implied Consent – Misleading Information

            State v. Terry, 236 Ga.App. 248, 511 S.E.2d 608 (1999).  The Court of Appeals affirmed trial court’s granting of motion in limine where officer read the implied consent notice correctly (twice) but then explained that the defendant could get an independent blood test “after bonding out.”  The Court said these additional comments were misleading and made it impossible for the defendant to make an informed decision.  Thus, the test was inadmissible.

 

Implied Consent – State’s Burden

            Miller v. State, 238 Ga.App. 61, ___ S.E.2d ___, (A99A0544, 4-28-99).  Held:  Unless the State meets its burden of showing that an officer fully informed the arrested person of his right to a chemical test independent of the State-administered test, the results of the State’s test are inadmissible.  Here the Court reversed conviction where the State’s only evidence concerning the implied consent warning was the deputy’s conclusory statement that he read a warning contained on a card.  The deputy did not testify as to exactly what rights he informed defendant of or the actual contents of the card.  The card itself was never introduced into evidence.

 

Implied Consent and Miranda

            State v. Moses,  237 Ga.App. 764, 516 S.E.2d 807, (A99A0273, 4-27-99);  Now that Legislature has amended O.C.G.A. § 40-5-67.1(a) to allow officers to “subsequently require a test or tests of any substances not initially tested,” no Miranda warnings are required before officer requests additional tests.  Thus, the “underpinnings of Warmack’s conclusion have fundamentally changed.”   

Miles v. State, 236 Ga.App. 632, 513 S.E.2d 39 (1999);  Defendant’s post-arrest silence in response to request to submit to a blood test is admissible, despite fact that the defendant had already been advised of his Miranda “right to remain silent.”

 

Implied Consent - State's Burden

 

Miller v. State 238 Ga.App 61 (April 28, 1999)

The arresting officer testified that he read the implied consent notice to defendant from a card issued by the police department.  The actual language of the card was not introduced into evidence.  The court held that failure to tender the substance of the notice into evidence rendered the .112 breath test inadmissible at trial.

 

Implied Consent - Weird Law on Custodial Detention

 

Bass v. State 238 Ga.App. 503 (June 10, 1999)

The Georgia Court of Appeals handed down an interesting decision.  Although the decision seems simple on the surface, I must supply the lay reader with a significant amount of background information in order to understand the issues.  I apologize beforehand if my analysis is unclear.

The arresting officer noticed that defendant appeared to be speeding.  This act occurred outside the jurisdiction of the officer, so he followed defendant's vehicle until it entered the proper jurisdiction.  He followed defendant for a while until he noticed defendant make a wide turn staying in the wrong lane for 150 to 200 yards.  The officer stopped defendant and made the following determinations: 1) he was more nervous than normal, 2) he had an odor of alcohol on his breath, 3) he talked fast, and 4) his eyes were red.  The officer wanted to administer a roadside breath test, but before he did so, he advised defendant of his implied consent rights.  Defendant tested positive on the hand held device and was transported to take the official test on the Intoxilyzer 5000 where he registered .127.  Fifteen to twenty minutes after taking the official test, Defendant requested his own independent test.  He did not have $80.00 cash to take the independent test and was allowed the use of a phone.  He made some phone calls, but made no further mention of the independent test.

At a pretrial hearing, defendant's attorney contended that the Intoxilyzer test results should be suppressed from evidence because the implied consent notice was read prior to the time defendant was arrested.  According to the law, the notice shall be read at the time of the arrest.  Prior to trial, the judge ruled that since defendant was not free to leave, he was therefore under arrest and the reading of the implied consent was timely.  For some reason known only to the Good Lord, the Court of Appeals upheld the trial judge's decision to allow the test results into evidence.

The question at this point is whether defendant was under arrest at the time he was advised of the implied consent notice and asked to take the roadside breath test.  Under both Federal and Georgia law, someone is under arrest when a hypothetical reasonable person in the same circumstance would think he was under arrest.  Obviously, if the officer were to say, "I am placing you under arrest," that is an arrest.  If the officer were to put handcuffs on an accused, place him in the patrol car, and transport him to the station, that is an arrest.  However, under the law, simply not being free to leave does necessarily mean you are under arrest.  Consider the following scenario.  You are stopped for speeding.  Clearly, until the officer writes the ticket, you are not free to leave, but you are not under arrest.  At this point you are in investigative detention.  If the officer then smells alcohol on your breath, he can ask you if you've had anything to drink (whether or not you answer is up to you).  He can ask you this question without advising you of your right to remain silent (Miranda warnings) because you are in investigative detention and not custodial detention (under arrest).  Your Miranda warnings attach only when custodial detention (arrest) occurs.  On the other hand, if you are under arrest and the officer asks you how much you've had to drink without first advising you of your Miranda rights, your response would be inadmissible at trial.

Now this case starts to get interesting because in most circumstances, the prosecutor wants the investigative detention to last as long as possible so the officer can gather as much incriminating evidence as possible without having to advise the accused of his Miranda warnings.  In this case, defendant was not told he was under arrest, was not handcuffed, and had not even taken any roadside field sobriety tests.  Why should he or any other reasonable person in that circumstance believe he is under arrest?  I see no sane, rational reason why.  However, even assuming he should have believed he were under arrest, Georgia appellate courts have held that before any roadside field test is administered, the officer has to advise him of his Miranda warnings, otherwise the test is inadmissible at trial.  Defendant's attorney should have brought this up to the trial judge and asked that, because defendant was arrested without being Mirandized, the roadside breath test be ruled inadmissible at trial.  Of course this is small potatoes compared to exclusion of the Intoxilyzer results.  After all, with no test results, a conviction is harder to obtain.  It appears that the Court of Appeals worked overtime to find that the arrest occurred so early in the stop.

Another issue that the Court of Appeals mentioned, but which did not appear to be raised on appeal, had to do with defendant's request for an independent test.  Under the law, if you are arrested for DUI, you must take the test the officer asks you to take. You can then request your own independent test and the officer must take reasonable steps to ensure you get your own test.  Otherwise, the test results will be excluded from the trial.  In this case it does not appear that the issue was raised on appeal and was not decided by the appellate court.  This issue should have been raised and fiercely argued.

 

Implied Consent - The ICN Is Not Consent to Search for Drug Possession

 

Turpin v. Helmeci 271 Ga. 224 (June 14, 1999)

In a Supreme Court case, the defendant was arrested for DUI.  The arresting officer advised defendant of his implied consent notice (see other parts of this website for a discussion of the implied consent notice).  The implied consent notice informs an accused that he is required to give a sample of the requested bodily substance for the purpose of determining if he is under the influence of alcohol or drugs.  Defendant in this case gave a sample of his urine.  The test of his urine showed amphetamine and methamphetamine in his system.  In addition to conviction of DUI and other misdemeanors, defendant was convicted of possession of the two aforementioned drugs.  Defendant's attorney never brought up at the hearing to suppress that the consent to take the urine test for the purpose of determining whether or not defendant was under the influence was not consent for purposes of determining whether or not he was in possession of the drugs.  The Supreme Court noted that defendant's consent to take the test pursuant to the DUI implied consent warnings was not consent to search his urine for evidence of possession.  Defendant's 12-year sentence for possession of the drugs was reversed.

 

Implied Consent - Strict Compliance Not Required

 

State v. McCabe 239 Ga.App. 297 (June 24, 1999)

In a DUI case, the trial court refused to apply retroactively an amendment to the implied consent statute.  This amendment allows the arresting officer to vary from an exact reading of the implied consent notice as long as the substance of the notice remains unchanged.  In holding that the grammatical variations in the officer's implied consent notice did not change the substance of the notice, the Court of Appeals reversed the trial court's suppression of defendant's blood test.  The Court of Appeals also held that the officer's advisement that defendant could have an additional "test" rather than "tests" performed was immaterial since defendant did not request any additional testing at all.  Anyone charged with DUI should be aware that after taking the test or tests required by the arresting officer, you could have additional tests performed at your own expense.  Therefore, if you believe the State test is in error, make sure you have ready access to funds (most hospitals do not take credit cards for this test) to pay for your own test of your blood, breath or urine.

 

Implied Consent - Impeachment/Jury Charge

 

Hernandez v. State 238 Ga.App. 796 (June 30, 1999)

Defendant was stopped for driving with no headlights and weaving.  The officer and defendant communicated through a mixture of rudimentary English and Spanish.  However, the text of the implied consent notice was read entirely in English.  At trial, defendant testified through an interpreter and said he did not understand the implied consent notice.  The trial court allowed the State, over objection, to impeach defendant using two prior DUI arrests that involved chemical tests.  The Court of Appeals held that this was not error as defendant opened the door to being questioned about taking chemical tests after having been read the implied consent notice twice before.

A second issue involved a charge given by the trial court to the jury instructing them that the implied consent warning does not have to be read in Spanish to a Spanish-speaking individual.  Defendant argued that the jury should have been told that his inability to understand English put him in the same class as an unconscious person thus rendering him incapable of withdrawing his consent by refusing to submit to the state test.  The Court of Appeals did not buy this argument since defendant declined to take the test.

 

Implied Consent - Refusal

State v. Marks A99A0983; 1999 WL 548634; 99FCDR3039 (July 29, 1999)

Three cars were involved in an accident in Cobb County.  Officer Perez arrived and noticed that two drivers were heavily intoxicated.  Perez contacted Ms. Marks and noticed a heavy odor of alcoholic beverage on her. She admitted to having four or five drinks and failed at least two of the four field sobriety tests.  She also registered positive on the hand-held Alcosensor breath test.  During the field testing and questioning of Ms. Marks, Mr. Billings continuously made comments.  Ms. Marks was arrested and placed in the back of the patrol car.  Officer Perez then addressed Mr. Billings who admitted to having in excess of five drinks.  Perez administered the field sobriety tests to Mr. Billings who failed them.  He was arrested and advised of his implied consent rights.  He refused to take the official state test.  Billings was then placed in the back of the patrol car with Ms. Marks.  Perez then read the implied consent notice to Ms. Marks (16 minutes after she was arrested).  When Perez asked Ms. Marks if she would submit to the state test, Mr. Billings told her to say no.  Instead, Ms. Marks remained silent.  The trial court suppressed Ms. Mark's refusal to take the test from evidence at trial.  The trial court found that placing Mr. Billings in the back of the patrol car with Ms. Marks interfered with her decision to take the state test.  The Court of Appeals reversed and said that the law does not require an officer to ensure that a DUI suspect be provided an environment free from a non-state actor's bad advice.  Besides, she ignored Mr. Billings's advice anyway.

 

Implied Consent - Timeliness

 

Joiner v. State A99A1437; 1999 WL 600370 (August 11, 1999)

In a DUI/Vehicular Homicide case, defendant somehow (the facts contained in the opinion did not say how) ran over her husband's head with her truck.  When the police arrived, defendant was extremely distraught.  The police thought death was accidental and defendant was not charged with any crime at the scene.  However, according to police, she was taken into custody because she was extremely distraught.  (Why she was given her Miranda warnings at this point is unclear since Miranda rights only attach after an arrest.)  Defendant was taken to the sheriff's department to be interviewed.  She was read her implied consent rights (Mirandized again) and was asked to take a blood test.  After submitting to the blood test, defendant was released without being booked and without posting bond.  A few months later, defendant was arrested for DUI and first-degree vehicular homicide based upon the blood test results.  Defendant contended that her implied consent notice was not given in a timely manner under OCGA § 40-6-392(a)(4).  This particular code section requires that in a DUI case, for the test results to be admissible in court, the implied consent must be read "at the time of the arrest."  The Court of Appeals said that the implied consent notice must be read at the time of the arrest only if a person is arrested for DUI.  The Court said in this case, defendant clearly was not under arrest for DUI at the time the blood test was requested.  The Court cited to two other sections in the Georgia Code (40-5-55 and 40-5-67.1) that say that someone involved in a traffic accident resulting in serious injuries or fatalities must submit to a chemical test.  The Court further said that, although the implied consent notice must still be read, it only has to be read prior to the administration of the state test; "it is not required that the person be arrested prior to such testing."

 

Implied Consent - Misreading Did Not Change the Substance of the Notice

 

Maurer v. State A99A1460; 1999 WL 743502 (September 24, 1999)

Defendant sought to suppress the Intoxilyzer 5000 breath test results due to a misreading of the Implied Consent Notice.  At trial, the officer testified that if defendant tested .01 grams or more rather than the correct .10 grams or more, defendant's license would be suspended (defendant was over 21 years of age).  The Court of Appeals essentially held that an understatement of the legal limit would be an inducement for an accused to refuse testing.  Conversely, an overstatement of the legal limit might lead a person to submit to the state test.  In this case, since defendant did not refuse to take the test, the understatement did not change the substance of the Implied Consent Notice.  [DUIGUY Note: If you are thoroughly confused, and if you think your notice was misread, contact me to analyze your situation.]

 

Implied Consent - Good Case Explaining Timeliness

 

State v. Becker A99A0980; 1999 WL 792270 (October 6, 1999)

Four persons were killed when a tractor-trailer forced their van off the road into oncoming traffic.  A witness got the tag number of the tractor-trailer, which continued on leaving the scene.  A trooper stopped the truck, but the circumstances of the stop are unknown. Another trooper was on the way to Turner County to escort the truck driven by defendant back to Tift County. The trooper met defendant and followed defendant the ten miles back to the Tifton patrol post. During this time, defendant did not drive erratically and did not seem impaired. Upon arrival, defendant did not smell of alcohol, did not have bloodshot eyes or slurred speech, and did not act unusually nervous.  The trooper read the implied consent notice and asked for a urine sample at the post, which defendant provided.  The trooper subsequently drove defendant to the hospital, reread the implied consent notice for commercial drivers and asked for a blood test, which defendant submitted to. Based on the results of the blood and urine tests, defendant was charged with DUI and Vehicular Homicide.  He moved to suppress the test results on several grounds, and the trial court granted his motion.  The State appealed. The first issue was whether or not the implied consent notice was read in a timely manner.  Under the law, if a DUI arrest occurs, the notice must be read at the time of the arrest.  If no DUI arrest occurs, but there is an accident with serious injury or fatality, the law requires that the test be administered as soon as possible. Furthermore, the notice must be given within a reasonable amount of time after the accident as determined by the circumstances.  The Court of Appeals ruled that the evidence was insufficient for the trial court to determine whether or not the implied consent notice was read in a timely manner.  The case was remanded back to the trial court to for further evidence to determine this issue.

A second issue in this same case is interesting in that the Court of Appeals has never ruled on it. Defendant's attorney argued that the implied consent notice for commercial drivers notified defendant that he would be disqualified from operating a commercial vehicle for one year if he refused the testing, but did not notify him that he would also be disqualified from operating a personal vehicle pursuant to OCGA § 40-5-153(c). The Court of Appeals said that defendant agreed to take the test after hearing that a refusal to take the test could result in a suspension of his commercial driver's license for a year.  The Court reasoned that being told that he would also lose his personal driving privileges could only have tipped the balance further in favor of consenting. Therefore, the omission was immaterial.

 

Implied Consent - Citation to the Code Section is Enough

 

Cullingham v. State A99A2334; 2000 WL 122171 (February 2, 2000)

            Defendant was convicted of having an unlawful blood alcohol level.  At the non-jury trial, the officer testified, without reading the entire text of the implied consent notice, that he read the implied consent notice from 1997, that he read the notice for those 21 or over, and that he read it twice.  During testimony, the officer recited a portion of the notice.  On appeal, Defendant contended that, pursuant to Miller v. State, 238 Ga.App. 61 (1999), the implied consent notice was insufficient.  In Miller, the officer merely said he read the notice contained on a card.  Distinguishing Miller, the Court of Appeals said the facts in Cullingham were in compliance with the implied consent notice requirements.

 

Implied Consent - Refusal

 

Gallimore v. State A00A0195; 2000 WL 156302 (February 15, 2000)

            Defendant was placed under arrest and advised of his implied consent rights.  Defendant told the arresting officer that he would submit to the state test.  Another officer transported defendant to the testing location.  At the testing location, defendant apparently declined to take the test.  The arresting officer was then called to the testing location where he signed a form verifying that defendant refused to submit to the blood test.  The arresting officer did not hear defendant refuse to take the test.  On appeal, defendant contended that there was insufficient evidence to determine whether or not he refused to submit to the state test.  The Court of Appeals held that the arresting officer's testimony regarding his own conduct (presumably his signing the form verifying defendant's refusal) along with the officer's observations (I have no idea what those observations were) authorized the jury to find that defendant refused to take the state test. [DUIGUY COMMENT: I have no idea what the Court of Appeals is trying to say.  I can only assume that defendant wanted any mention of the refusal suppressed from evidence since evidence of a refusal allows the prosecutor to argue that the reason defendant refused was because he knew the test would show the presence of alcohol or prohibited substance.  This would not be a jury issue, but a legal issue to be decided by the trial judge.  If the judge decided that there was no probative evidence regarding refusal, then the prosecutor would not be allowed to argue the refusal as substantive evidence.  Furthermore, the trial court would not be able to give a jury charge regarding the refusal.  The Court of Appeals did not address this aspect of the case.  Perhaps the lawyer did not raise this issue on appeal.  The Court of Appeals only address the issue of whether or not the jury was authorized to find that defendant refused to take the test.]

 

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Intoxilyzer 5000

 

Inotxilyzer 5000 -  Foundation

In Mullinax v. State, 231 Ga. App. 534, 499 S.E.2d 903 (1998), the court followed Brown v. State, 268 Ga. 76, 485 S.E.2d 486 (1997), in holding that the testing certificates for the Intoxilyzer 5000 may not be admitted without laying a proper foundation pursuant to the business records exception to the hearsay rule. In Mullinax the foundation consisted of the following testimony from the arresting officer: "[H]e was familiar with the actual book in which the records were maintained, where the book was maintained, and that it contained documents prepared by Trooper Bobby Beall whose job it was to maintain and calibrate the Intoxilyzer 5000 machines.  Trooper Mitchell also testified that he did not know if the documents were made contemporaneously with the testing.  He further agreed that the extent of his knowledge regarding the certificates is that he knows where they are kept and that he had seen them at different points in time."

In Jackson v. State, 233 Ga. App. 568, 504 S.E.2d 505 (1998), decided some 4 months after Mullinax, the court explicitly rejected the need for laying a business records foundation in admitting Intoxilyzer 5000 certificates. Judge Eldridge wrote the opinion that concluded such documents are "self authenticating" under O.C.G.A. Section 40-6-392.

In Andries v. State, 236 Ga. App. 842, 512 S.E.2d 685 (1999), the State had only photocopies of the Intoxilyzer certificates that were not certified.  While holding the photocopies are admissible under the self authenticating provisions discussed in Jackson, the State also presented testimony to account for the absence of the original certificates.

 

Intoxilyzer 5000 - Only Two Tests Allowed

 

Davis v. State 237 Ga.App 817 (April 29, 1999)

In another case, the officer administered three breath tests to defendant.  Each test consisted of two breath samples.  The first two tests yielded invalid tests (the two samples varied by more than 0.02 grams of each other).  The third test yielded two valid samples (within 0.02 grams of each other).  The Court of Appeals held that since the first two tests produced adequate breath samples (albeit invalid), and since the Statute only allows for two tests, the results from the third test should have been suppressed from evidence at trial.

 

Intoxilyzer 5000 - Both Test Results Admissible

 

Horne v. State 237 Ga.App. 844 (April 29, 1999)

Officer Martin began following defendant's car. Defendant pulled over to let the officer pass. The officer pulled into a parking lot and saw the car, which was being driven by a white male wearing a baseball cap, pass by.  Officer Martin again began following defendant again an observed defendant cross the centerline several times. Defendant pulled into a closed gas station and changed places with the passenger.  Officer Martin pulled the car over and charged both occupants with DUI.  Defendant contended on appeal that allowing both sequential test results from the Intoxilyzer 5000 into evidence was error.  The Court of Appeals held that OCGA § 40-6-392 (a)(1)(B) contemplates the admission of both test results.

 

Intoxilyzer 5000 - Cha-Ching! Twenty Minute Rule is Foundational

 

Casey v. State A99A2092; 1999 WL799537 (October 8, 1999)

In Georgia DUI cases, where a breath test is requested on the Intoxilyzer 5000 (the only official breath testing device), the Intoxilyzer 5000 training manual requires a twenty-minute wait in a controlled environment to ensure that the breath sample is not contaminated with extraneous alcohol from such sources as a last drink, use of mouthwash, burping, belching or vomiting. If, for example, someone belches during the twenty-minute waiting period, this can introduce alcohol into the mouth, and the waiting period should be restarted.  Up until now, the Appellate Courts have held that noncompliance with the waiting period goes to the weight and credibility of the test result, not its admissibility.  However, in an October 8th case, defendant's initial breath test indicated the presence of mouth alcohol.  The officer did not wait the required twenty minutes before retesting. The Court of Appeals said that the failure to observe the twenty-minute waiting period prior to retesting "compromised the very foundation for admission of defendant's breath test . . ." [DUIGUY Note: This same logic can and should be applied anytime the above conditions are not met on the initial test].

 

Intoxilyzer 5000 - Impeachment

 

Jones v. State A99A 2304; 1999 WL 1146805 (December 15, 1999)

            At trial, Defense and Prosecution stipulated that the Alcosensor 5000 (I'm sure they meant the Intoxilyzer 5000 since there is no such animal as an Alcosensor 5000) results were procedurally barred from admission into evidence at trial.  If admissible, the test would have showed that defendant's BAC was .09 two hours after the stop.  On direct examination, defendant testified that he weighed 200 pounds and only had three beers. (Three beers would not result in such a high reading two hours after the stop).  The State then sought to introduce the official test results on rebuttal to impeach defendant's testimony.  The trial court allowed in the results over defendant's objection.  The Court of Appeals held that the test results were admissible to rebut defendant's testimony.

 

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Articulable Suspicion to Stop

 

Articulable Suspicion - BOLO

            Attaway v. State, 236 Ga.App. 307, 511 S.E.2d (1999).  Court held that officer lacked articulable suspicion to stop defendant where stop was based merely on a BOLO (be on the lookout) for a “small red vehicle, possibly with a white driver.”  Court said the tip did not provide the officer with a “particularized and objective basis for suspecting [defendant] of criminal activity sufficient to justify an investigatory stop.”

 

Articulable Suspicion/ Consent to Search

 

James v. State 238 Ga.App. 552 (June 14, 1999)

Defendant was driving a car on I-95.  He had two passengers.  A deputy sheriff stopped him for not wearing a seatbelt and one of his brake lights was out.  The three geniuses gave the officer consent to search the vehicle.  The search produced copious amounts of cocaine.  After trial and conviction, one of the defendants contended that the prosecutor did not establish a chain of custody for the cocaine.  The Court of Appeals held that a minor discrepancy in the testimony of the officers did not affect the chain of custody.  And you wonder why your mama told you to wear your seatbelt.

 

Articulable Suspicion - A BOLO Several Days Old is Not Articulable Suspicion

 

State v. Burns 238 Ga.App 683 (June 25, 1999)

In the traffic stop case, the officer had a BOLO (be on lookout) for an older yellow in color Monte Carlo driven by two suspects, one unknown and one believed to be a white male.  The suspects were involved in a purse snatching three days earlier at a store about two miles away from the stop.  Both of the males stopped in this case were black.  After the stop, a second officer with a drug-sniffing dog arrived.  While the first officer ran criminal background checks, the second officer had his drug dog perform a free air sniff around the outside of the car.  The dog hit on the front passenger door and then alerted on an air conditioning vent where a bag of cocaine was found.  Prior to trial, the judge suppressed the cocaine from evidence and the State appealed.  In affirming the trial court's suppression of the evidence, the Court of Appeals said that if a BOLO is issued immediately after the incident, a general description of a rather uncommon vehicle (e.g. a 13 or 14 year old Cutlass with distinguishing colors) in the vicinity near the time of the incident might be grounds to stop the vehicle.  But in this case, the BOLO was several days old and the description of an older yellow Monte Carlo two miles from the scene just was not sufficient evidence to stop the vehicle.  Therefore, since the police did not have reasonable suspicion to stop the vehicle in the first place, the free air search by the drug dog did not provide probable cause to search.

 

Articulable Suspicion - Consent Search

 

Morris v. State 239 Ga.App. 100 (July 1, 1999)

Defendant was found guilty of possession of cocaine.  At the pretrial motion to suppress, the following facts were determined.  Deputies responded to a complaint from a cashier at a convenience store.  The call was received between 2:30 and 3:00 a.m.  The store usually closes between 2:00 and 4:00 a.m.  She told dispatch that the store was closed and a man driving a black pickup truck was outside beating on the door to get in.  The cashier said she was scared.  Upon arrival, the officers noted that all the outside lights were out and the store was clearly closed.  They noticed a black truck backing away from the door.  They stopped the truck before it left the parking lot.  No traffic offenses were committed.  Defendant explained he was trying to get bread.  One of the deputies noticed an odor of alcohol on defendant's breath and he wanted to administer a roadside Alcosensor breath test.  The other deputy asked defendant what the bulge was in his shirt pocket.  When defendant said it was matches, the officer asked for defendant's consent to look in the matchbox.  After defendant handed the box to the deputy, three packets of cocaine were found.  Clearly this was a consensual search and legal if the stop were legal.  The issue before the court was whether the stop was legal. In holding that the stop was legal, the court noted that a forcible, investigatory detention can be made when there is a reasonable suspicion that the person has been, is or is about to be engaged in criminal activity.  The court then stretched about as far as it could to find that the conduct reported by the cashier arguably amounted to disorderly conduct.  NOTE ONE: Why this case did not involve a DUI is unknown.  Often times, when the police find a controlled substance on a driver, a blood or urine test is requested to determine if traces of the substance can be found.  If so, the police usually charge the driver with being in violation of the DUI statute.  NOTE TWO:  If you want a loaf of bread from a locked up convenience store, make sure you are not DUI and have no illegal substances on you before you knock on the door trying to convince the clerk why he/she should let you in.

 

Articulable Suspicion - None Here

 

Strawser v. State 239 Ga.App 125 (July 14, 1999)

In a July 14th case, the facts were as follows.  Police were dispatched to pick up a mother and daughter walking just before midnight.  The mother was crying and told officers that she and the child left because of a verbal argument with her husband.  No physical violence was involved.  The police took her back home.  As they were standing outside the home, defendant's truck drove past, around the cul-de-sac, and past the house again.  The police stopped him to get his version of events regarding the argument.  When asked why he did not stop at his house, defendant replied that he did not want to be arrested for DUI.  The trial court denied defendant's motion to dismiss for lack of articulable suspicion to stop him.  However, the Court of Appeals reversed.  It held that the officers articulated no facts supporting a suspicion that defendant was committing or about to commit any crime.

 

Traffic Stop Detention Illegal Without Reasonable Suspicion

State v. Blair, 239 Ga.App. 340; A99A0799; 1999 WL 544517; 99FCDR3053 (July 28, 1999)

A Trooper stopped a vehicle for speeding.  The vehicle had a drive out tag and contained four occupants.  The Trooper questioned the driver and the front seat passenger as to ownership of the vehicle.  The Trooper testified that he became suspicious when neither produced proof of ownership, they provided conflicting explanations concerning the purpose of their journey, all four appeared very nervous, and defendant, who was seated in the rear, clutched a black bag.  The Trooper asked if any weapons, drugs or large quantities of case were in the car.  The driver said no.  The Trooper then asked the purported owner (front seat passenger) for permission to search the car.  He respectfully declined.  The four were detained while a K-9 unit was summoned.  Defendant fled with his bag, was apprehended and found to be in possession of marijuana, baggies, and scales.  The trial court granted the motion to suppress holding that the stop was lawful, but the detention of the occupants in order to search for drugs was unlawful.  In upholding the trial court ruling, the Court of Appeals cited to Smith v. State, 216 Ga.App. 453, and Simmons V. State, 223 Ga.App. 781.  In Smith, defendant was stopped for possible DUI.  Without taking steps to ascertain Smith's state of intoxication, the officer asked to search his car for contraband.  Smith declined and the officer called a K-9 unit.  In analogizing to Smith, the Court of Appeals held that the detention in this case was impermissible because the facts known to the officer did not provide reasonable suspicion of illegal drug activity.

 

Articulable Suspicion - Cracked Windshield

 

Darby v. State, 239 Ga.App. 492; A99A1626; 1999 WL 562758; 99FCDR3133 (July 30, 1999)

Defendant was stopped because the officer testified that he noticed a crack at least a foot long in the windshield.  Defendant did not commit any traffic offense.  Defendant argued that the officer had no articulable suspicion to stop him.  In support of his motion, defendant cited to the code section that says "no motor vehicle shall be operated with a windshield or rear window having a starburst or spider webbing effect greater than three inches by three inches."  Defendant provided a picture which the officer admitted showed a starburst between an inch and a half and two inches and a crack about six inches in length.  The Court of Appeals said the stop was proper.  The Court held that a "rational inference could be drawn by [the officer] that such crack emanated from a starburst."  The Court thus held that an investigative stop could be made to determine if a law was broken.

 

Articulable Suspicion/Illegal Detention/Standing

 

Green v. State, 239 Ga.App. 612 A99A1611; 1999 WL 562143 (August 3, 1999)

Defendant was stopped when an officer observed him speeding and confirmed his speed with radar.  Upon approaching defendant's car, the officer noticed a box of assorted fireworks in the back seat.  The officer then placed defendant in the back seat of his patrol car and cited him for speeding and illegal possession of fireworks.  While in the patrol car, the officer asked for defendant's permission to search his vehicle.  Defendant signed the consent to search form.  The officer asked the female passenger to get out of car with her infant.  She reached for a cloth bag.  The officer allowed her to take a bottle out of the bag, but told her to leave the bag in the car.  A search of the car netted $6,000 found in the cloth bag as well as marijuana and methamphetamine found in a box behind the front seat.  Defendant raised two grounds in his motion to suppress. He first contended that the stop was improper because the state failed to prove that the radar gun was used pursuant to Georgia law.  The Court of Appeals held that the stop was proper because "opinion testimony of an eyewitness may be used to establish speed and . . . such evidence is sufficient to authorize a fact finder to conclude that the speeding laws have been violated."  In his second ground, defendant maintained that the consent to search form that he signed was invalid because he was illegally detained.  The evidence at the motion to suppress showed that the back of the patrol vehicle had no handles on the inside.  The officer testified that defendant was not free to go and was being detained for investigation.  However, the Court of Appeals held that defendant was placed in the patrol car for safety reasons since they were on a road shoulder on an interstate highway.  The court said that in this case, a 10 to 15 minute detention was valid.  Defendant also tried to suppress the $6,000 found in the cloth bag from evidence.  However, since he never asserted a possessory interest in the bag, he had no standing to challenge the admissibility of the money.

 

Articulable Suspicion and Plain Feel

Harris v. State, 239 Ga.App 537; A99A1583; 1999 WL 587924 (August 6, 1999)

The police received information from a confidential informant (CI) that the CI had ridden in defendant's car while defendant made deliveries of cocaine, that defendant traveled with eight to nine ounces of cocaine on his person, and that defendant carried a gun.  Police began surveillance of defendant.  On morning, defendant got in his car and drove away from his house.  Defendant went to a gas station in a neighboring county, left the gas station, made a U-turn, returned to the gas station, parked has car, and got into a black Honda and left the station.  He returned 30 minutes later, got in his car and drove away.  The detective told a uniformed officer to stop defendant.  The uniformed officer pulled defendant over for not wearing a seatbelt and gave him a warning citation.  He then asked defendant for permission to search which defendant gave.  The officer patted down defendant and felt a softball sized bulge that felt like "a bunch of little rocks" in defendant's left sock.  Defendant contended that 1) the police lacked reasonable articulable suspicion to stop him, and 2) the scope of the search exceeded the scope of a protective weapons search.  As to the stop, the Court of Appeals held that the officer was authorized to stop defendant for committing a seat belt violation since "this rises to the level of probable cause to arrest."  [I wonder why the Court of Appeals used this language since the statute says that this type of seat belt violation is not even a crime.]  The Court held that the officer was entitled to seize the cocaine under the "plain feel" doctrine.

 

Articulable Suspicion - Speeding

 

State v. Owens A99A1742; 1999 WL 652291 (August 27, 1999)

Defendant was stopped for doing 61 mph in a 55 mph zone.  The trial court ruled that this did not give the officer articulable suspicion to stop defendant.  In ruling that the trial court's ruling was clearly erroneous, the Court of Appeals ruled that even if the officer had ulterior motives, a stop is valid when a traffic offense occurs.

 

Articulable Suspicion - None Here Either

 

Howden v. State A99A2157; 1999 WL 695251 (September 9, 1999)

In a September 9th case, defendant was convicted at trial for DUI after the trial court denied his motion to suppress.  The Court of Appeals ruled that the trial court erred in denying the motion to suppress and reversed the conviction.  Based upon the evidence, defendant stayed late at work and consumed alcohol.  About 10:15 p.m., he got in his van and headed home, but was stopped shortly by the police and arrested for DUI.  The officer testified that he stopped defendant because it was late and defendant's warehouse (place of business) was located in an area known for criminal activity.  The officer further testified that his suspicions were first aroused because defendant's van was backed into one of the closed warehouse's doors.  The officer did not state any particular fact indicating that the occupant of the fan was or was about to be engaged in criminal activity.  Neither did he explain that crimes had been committed in the area under similar circumstances.  Furthermore, the officer did not testify that he saw any unusual loading activity into the van.  The Court of Appeals held that a warehouse in an area known for criminal activity and a van leaving that warehouse late at night did not justify a traffic stop.

 

 

Articulable Suspicion - Still None

 

McSwain v. State A99A1366; 1999 WL 714670 (September 15, 1999)

In a September 15th case, the Court of Appeals reversed the trial court's denial of defendant's motion to suppress the search of his vehicle.  The officer stopped the vehicle because he received information over the police radio to be on the lookout for a certain vehicle headed in a certain direction possibly containing contraband in the trunk.  The Court of Appeals found that "Aside from a vague reference to possible contraband in the trunk, the lookout itself contained no specific, articulable facts suggesting criminal activity on the part of the occupants of the Honda."

 

Articulable Suspicion - Untainted Observation

 

Patel v. State A99A1992; 1999 WL 760260 (September 28, 1999)

In a September 28 DUI case, the police officer, using radar, clocked defendant speeding.  He pursued defendant and paced him at 60-70 mph in a 45 mph zone.  In addition, defendant was weaving in and out of traffic and did not pull over immediately.  After noticing that defendant had an odor of alcohol, and had red glassy eyes, the officer administered field tests which defendant apparently failed.  Prior to trial, the trial court suppressed the radar results because the officer was not visible for 500 feet as required by law.  Defendant contended that this meant that the officer did not have probable cause to stop him and all evidence resulting from the stop should be excluded from evidence.  However, the Court of Appeals said that notwithstanding the illegality of the radar results, other evidence existed that was not tainted by the illegal radar results; to wit: The officer paced defendant to determine that he was speeding, defendant was weaving in and out of traffic, and defendant did not pull over immediately.

 

Articulable Suspicion - It's a Miracle

 

Chinnis v. State A99A1952; 1999 WL 962407 (October 22, 1999)

The Court of Appeals held that "a police officer does not have an objective basis for suspecting that a person is engaged in a crime merely because the person is a white man driving in an African-American neighborhood late at night, and he picks up an African-American man at a high-crime location, and he then drives slowly in the neighborhood." Defendant's jury trial conviction was overturned.

 

Articulable Suspicion - The State Dropped the Ball

 

Kazeem v. State A99A1698; 1999 WL 104126 (November 18, 1999)

            A bank employee reported two highly suspicious characters.  Two officers stopped defendant's automobile.  At a pretrial motion hearing, the State did not call these two officers to explain why they stopped defendant.  The Court of Appeals held that, because it was unclear what facts the two officers relied on to make the stop, the stop and detention were illegal, and the evidence should have been suppressed.

 

Articulable Suspicion - Hearsay Apparently has Probative Value in Drug Cases

 

Holden v. State A99A2412; 1999 WL 1146852 (December 15, 1999)

            The Court of Appeals affirmed the trial court's denial of defendant's motion to suppress based on lack of reasonable articulable suspicion. In this instance, a known drug dealer (Price) got into defendant's SUV.  The officer pulled her over and obtained permission to search her vehicle, which turned up marijuana. A subsequent search incident to arrest of defendant's person produced cocaine.  The appellate court said that "the specific data and patterns known to Officer Mendenhall and the reasonable inferences he was entitled to draw from them established a reasonable articulable suspicion for an investigative stop of [defendant's] SUV". This included 1) the officer's knowledge that Price was a drug dealer*, knowledge that Price sells drugs at a specific location and time (also the time defendant was stopped), knowledge that Price did not live in the area, knowledge that defendant did not live in the area, knowledge of how street drug sales transpire, and observation of defendant's nervous reaction when she saw the officer.

            *The officer testified that he knew Price was a drug dealer because Price admitted that he was a drug dealer.  This is clearly hearsay and hearsay has no probative value.  If that statement has no probative value, the office would have a tougher time explaining how he knew Price was a drug dealer and how he knew Price sold drugs at a certain location at a certain time.  I am not sure why the defense lawyer did not argue this to the Court of Appeals.  I also do not know why the Court of Appeals did not explain why it assigned probative value to this hearsay statement. In certain circumstances, hearsay is allowed into evidence to explain why an officer took certain actions. 

 

Articulable Suspicion - Improper Parking

 

Roberts v. State A99A2216; 2000 WL 14480 (January 11, 2000)

            Defendant testified that he stopped for less than a minute to discharge a passenger, and then drove off before he realized a police car had pulled behind him.  The officer testified that he observed defendant stopped in the roadway of a two-lane street for about four minutes.  The officer further testified that he saw no one enter or exit defendant's vehicle during that time.  The officer also testified that as he pulled behind defendant's stopped car, defendant started to drive off.  The officer activated his emergency lights at that time.  The Court of Appeals upheld the trial court's ruling that defendant's action was not a momentary stop to discharge a passenger and that he committed the offense of improper parking thus authorizing a traffic stop.

 

Articulable Suspicion - Backing into a Police Car

 

State v. Gehris A99A1746; 2000 WL 37738 (January 19, 2000)

            Defendant backed into a Doraville police car in the parking lot of a restaurant located outside the city limits of Doraville, but in Dekalb County.  Defendant left the scene.  Two Doraville policemen were in the parking lot, witnessed the incident, followed and pulled defendant over in the parking lot of a Waffle House located inside the city limits of Doraville.  They smelled alcohol on Defendant's person and called DeKalb County police to investigate the accident.  DeKalb County investigated and released defendant without issuing a citation.  The Doraville officers decided to investigate further, administered field sobriety tests to Defendant and arrested him for DUI.  The Trial Court ruled that the Doraville officers relinquished their authority over Defendant when DeKalb County took over.  The Court of Appeals reversed noting that an officer can arrest someone for a traffic violation committed in his/her presence regardless of the territorial limitations.  Furthermore, the Appellate Court held that just because DeKalb County decided not to investigate the case as a DUI did not mean that Doraville officers were deprived of their independent authority to investigate.

 

Articulable Suspicion to Stop-The Cops Knew His License was Suspended

 

Polke v. State A99A1966; 2000 WL 38831 (January 20, 2000)

            The cops were itching to bust defendant for drugs.  They placed him under surveillance.  They discovered his license was suspended.  Defendant got into a car and drove off.  The surveillance officer radioed to another officer to stop defendant.  Defendant complained the police had no articulable suspicion to stop him based on an anonymous tip.  The Court of Appeals said he was stopped for driving on a suspended license.  The Court further said that the officers were authorized to search defendant's automobile incident to the lawful arrest.

 

Articulable Suspicion to Stop-Consent to Search

 

State v. Milsap A99A2064; 2000 WL 86839 (January 28, 2000)

            The driver was stopped for not wearing a seat belt.  After issuing a warning, the officer asked the driver for permission to search his vehicle.  Driver consented, the search was conducted, and no contraband was found.  Undaunted, the officer asked the passenger (defendant) for permission to search her purse.  She consented.  The officer found contraband.  The Court of Appeals, citing to Stokes v. State, 238 Ga.App. 230 and State v. Westmoreland, 204 Ga.App. 312, upheld the consent search of defendant's purse.  [DUIGUY COMMENT:  both Stokes and Westmoreland involved first tier encounters of individuals (any police officer can approach any individual, strike up a conversation and request a voluntary search).  However, the encounter in Milsap was a traffic stop that involved articulable suspicion to stop for not wearing a seatbelt.  Why the Court of Appeals did not consider this an illegal detention without reasonable suspicion of drug activity as it did in Smith v. State, 216 Ga.App. 453 and State v. Blair 239 Ga.App. 340 is beyond me.]

 

Articulable Suspicion to Stop - None Here

 

State v. Winnie A99A2354; 2000 WL 124412 (February 3, 2000)

            The officer saw defendant pull into a closed Salvation Army facility at 4:00 a.m.  The officer turned around to investigate.  As the officer pulled into the back of the facility, defendant began to drive off.  Without observing any traffic violations or having any report of criminal activity, and without any claim that it appeared defendant was attempting to flee, the officer pulled defendant over, searched him and found drugs.  Analogizing this case to Attaway v. State, 236 Ga.App. 307, the Court of Appeals said that although the officer could have closely observed defendant, when defendant pulled away, the officer had no particularized and objective reason to suspect defendant of involvement in any criminal activity.

 

Articulable Suspicion to Stop -Smell of Marijuana

 

Tomlin v. State, A00A0228; 2000 WL 174626 (February 16, 2000)

            Defendant had the good fortune to be followed by a narcotics agent while his passenger was smoking a joint and blowing the smoke out the passenger window.  Each time the passenger exhaled, the agent smelled the distinct odor of marijuana.  Defendant's truck was pulled over, marijuana discovered in the floorboard, and defendant admitted to possessing the marijuana.  At his motion to suppress, defendant contended that the police had no reasonable basis for stopping his vehicle.  The Court of Appeals held that the odor of marijuana emanating from a vehicle provides reasonable suspicion that marijuana is in the car, thus justifying a brief investigative stop.

 

 

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Roadblocks

 

Roadblocks – Lack of Proper Supervision

            State v. Manos,  237 Ga.App. 699, 516 S.E.2d 548, (A99A0091, 4-20-99)  Court affirmed trial court’s granting of defendant’s motion to suppress, where the record was silent as to the procedures whereby officers, either supervisory or in the field, determine whether public safety requires that an existing roadblock be terminated, temporarily or otherwise, due to a backup in traffic.

 

Roadblocks - Further Erosion of LaFontaine

 

Boyce v. State A99A0857; 1999 WL 825572 (October 18, 1999)

The Supreme Court giveth and the Court of Appeals taketh away.  The Supreme Court said a valid roadblock must be initiated by supervisory personnel, all vehicles must be stopped, delay to motorists must be minimal, it must be well identified as a police checkpoint, and the screening officer's training and experience must be sufficient to qualify him to determine which motorists will be field tested for intoxication.  In this case, the Court of Appeals made several interesting holdings.   First, the State Trooper testified that although no supervisory personnel were involved in the establishment of this particular roadblock, established Georgia State Patrol policy gives the troopers authority to implement a daytime roadblock at any location so long as it is set up in a safe place. [DUIGUY Comment: Why would a highly trained officer need to be told to set up a roadblock in a safe place? That would seem to be a foregone conclusion. Without the obvious "safe place" requirement, the officers in the field have unfettered discretion to establish a roadblock anywhere they please.]

Second, the Court of Appeals thinks that in the daytime, uniformed troopers with visible patrol cars is sufficient to satisfy the "well identified as a police checkpoint" requirement.  Apparently signs, cones, markers and/or flashing blue lights are not required to identify the roadblock.

Finally, the Court of Appeals shifted the burden to defendant to prove that a state trooper is not qualified by experience and training to determine which motorists should be given further tests. [DUIGUY Comment: Why does the Court of Appeals assume such a high level of training in this instance while it doesn’t question the reason why these same officers have to be told to set up a checkpoint in a safe place?]

 

Roadblocks - More Erosion

 

State v. Stearns A99A1750; 1999 WL 997509 (November 4, 1999)

All cars were stopped in the northbound lane.  None was stopped in the southbound lane. The trial court said this gives police authority to target groups.  Reversing the trial court, the Court of Appeals said that as long as the officers have no discretion in deciding which vehicles to stop, a one-way roadblock does not create a greater potential for improper targeting than does a two-way roadblock. DUIGUY comment: Okee-dokey.

 

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Speedy Trial

 

Speedy Trial - - Statutory Demand

Clark v. State,  236 Ga. App. 130, 510 S.E.2d 616 (1998), held a demand for speedy trial filed the term after a formal D.U.I. accusation was not timely enough to invoke the protections of the speedy trial statute, O.C.G.A. Sec. 17‑7‑170. The D.U.I. charges had been initially filed two terms earlier by Uniform Traffic Citation. The court applied State v. Gerbert, 267 Ga. 169, 475 S.E.2d 621 (1996), which held that a statutory demand for trial may be filed when a Uniform Traffic Citation is filed with the clerk notwithstanding the filing of a subsequent formal accusation. The court rejected Clark's argument that Gerbert must be read to expand rather than limit an accused's speedy trial options. Clark does not discuss Tyler v. State, 224 Ga. App. 550, 551 (1997). There, Judge Beasley, a member of both the Clark and Tyler panels, wrote:

O.C.G.A. 17‑7‑170 requires that an accusation be filed with the clerk before an accused may file a demand for trial"). Our Supreme Court has recently held however that the right to a speedy trial under O.C.G.A. 17‑ 7‑170 also attaches when the State files a UTC which functions as an accusation. State v. Gerbert, 267 Ga. 169 (475 S.E.2d 621) (1996). (emphasis supplied)

On September 13th, the Georgia Supreme Court ruled in Clark that the filing of a uniform traffic citation triggers the time for the filing of a speedy trial demand.  The Court further ruled that "the clock does not start again simply because the state subsequently files a formal accusation setting forth the same charges.

In contrast to Clark, Merservey v. State, 230 Ga. App. 382, 496 S.E.2d 382 (1998), involved the filing of a demand for speedy trial after the citation but before the formal accusation. No trial was afforded within two terms of the filing of the demand. Notwithstanding the fact that the citation had been "received and stamped" by the clerk of court prior to the filing of the demand, the court found the UTCs had not been "filed with the clerk" pursuant to O.C.G.A. Sec. 17‑7‑170(a). The court based its decision on a finding that the solicitor had not authorized the filing of the citations as required by O.C.G.A. Sec. 15‑18‑66(b)(10).

In Hayek v. State, 269 Ga. 728, 506 S.E.2d 372 (1998), the court simplified the determination of when a UTC is "filed with the clerk". Hayek also filed a demand after the citation but before the formal accusation with no resultant trial afforded. There, as in Merservey, the State successfully contended at trial that the citation was not filed with the consent of the solicitor and, therefore, the defendant's demand was premature. In reversing, the Supreme Court endorsed an objective test for determining when the citation is "filed with the clerk". The test does not consider a prosecuting attorney's asserted lack of consent to the filing of the citation:

[T]he State has the right to bring an individual to trial for traffic offenses any time after a UTC is filed with the clerk of court. Concomitantly, basic principles of fundamental fairness and reciprocity require that an accused be allowed to assert a speedy trial demand once a UTC is filed with the court clerk. Otherwise, an accused traffic offender is left to guess whether his prosecution will proceed on the basis of the filed UTC, in which case his speedy trial demand must be asserted, or if the State intends to file a formal accusation at a later date, in which case a speedy trial should be forestalled.

After Hayek and Clark, it would seem that whether or not the citation is received by the clerk from the arresting officer or the prosecuting attorney is irrelevant.

 

Speedy Trial - - Constitutional Right

            Jernigan v. State, 239 Ga.App. 65, 517 S.E.2d 370 (A99A0060, 5-11-99).  Delay of seventeen months raised a threshold presumption of prejudice.  So, Court of Appeals applied four factors of Barker v. Wingo, 407 U.S. 514 (1972):  (1)  length of delay;  (2)  reason for delay;  (3) defendant’s assertion of right; and (4) prejudice to defendant.  Court applied factors and found no violation of constitutional right to speedy trial.

 

Speedy Trial - Untimely Demand

 

Parks v. State, 239 Ga.App. 333; A99A1134; 1999 WL 544562; 99FCDR3065 (July 27, 1999)

In a DUI case, defendant was arrested on October 17, 1997 in Cobb County, Georgia.  The traffic citations were filed with the State Court Clerk three days later.  The prosecutor never filed a formal accusatory document.  (It is permissible for the prosecutor in a court other than Superior Court to proceed on a traffic citation).  Defendant waived formal arraignment and demanded a speedy trial on February 10, 1998.  On May 20, 1998, defendant filed a motion for discharge and acquittal since his speedy trial was not had during the term of court in which the speedy demand was filed or at the next term.  In Cobb County, each term of court is two months long.  If a speedy trial demand is timely filed, the prosecutor must try the case no later than the end of the next term after the speedy trial demand is filed.  Unfortunately for defendant, the traffic citations were filed during the September term of court.  He should have filed his speed demand during the term that the citations were filed with the Clerk of Court.   By the time he filed his motion for speedy trial, two terms of court had passed.  In order for a valid speed trial demand to exist, he would have had to petition the court for permission to file an out of time speedy demand.  This was not done and his motion for discharge and acquittal was properly denied.

 

Speedy Trial - Untimely

 

Redstrom v. State, 239 Ga.App. 769; A99A1758; 1999 WL 681722 (August 31, 1999)

Defendant made a demand for a speedy trial on December 18, 1998.  On March 3, 1999, he made a motion for discharge and acquittal based on the speedy trial demand.  The Court of Appeals noted that the right to discharge pursuant to a speedy trial demand involved impaneling of two traverse juries; one when the motion is made and the other at the next successive term of court.  The evidence showed that the speedy trial demand was made one day after all jurors were dismissed and not subject to recall.  The Court of Appeals thus held that the trial court's denial of defendant's motion for discharge and acquittal was proper.

 

 

Speedy Trial - A Formal Accusation Does Not Re-start the Clock

 

Clark v. State S99G0684; 1999 WL 705092 (September 13, 1999)

On September 13th, the Georgia Supreme Court ruled in Clark that the filing of a uniform traffic citation triggers the time for the filing of a speedy trial demand.  The Court further ruled that "the clock does not start again simply because the state subsequently files a formal accusation setting forth the same charges.

 


Speedy Trial - Presumption of Prejudice Overcome

 

Hall v. State A99A2284 (October 14, 1999)

Defendant contends that because nearly 14 months elapsed between his arrest and his trial, he was denied his constitutional right to a fair and speedy trial.  The Court of Appeals applied the test prescribed in Barker v. Wingo, 92 SC 2182 which requires consideration of (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The Court of Appeals found (1) that a 14 month delay raises a presumption of prejudice, (2) defendant's nine month incarceration prior to the time the DA began prosecuting did not weigh in defendant's favor since no proof existed that the DA intentionally delayed prosecution, (3) defendant did not assert his speedy trial demand until the ninth month after his arrest, and, when his case was called for trial, his lawyer asked for a continuance, and (4) defendant demonstrated no prejudice, did not show that his 14 months in jail exposed him to substandard conditions and did not cause undue anxiety such that the delay impaired his ability to defend himself.  Therefore, the Court held, the 14-month delay did not violate his right to a speedy trial.

 

Speedy Trial - Not in Municipal Court

 

Vedder v. State A99A2438; 1999 WL 1191490 (December 16, 1999)

            Defendant filed a speedy trial demand by jury in a municipal court.  Municipal courts do not empanel juries and the case was transferred to state court.  Defendant did not file a speedy demand in the state court.  Defendant made a motion for a plea in bar (noncompliance with the original speedy trial demand) in the state court.  The Court of Appeals upheld the trial court's denial of the plea in bar.  It held that a speedy trial demand in a municipal court is ineffective and that defendant did not re-file an effective demand in the state court.

 

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Double Jeopardy

 

Double Jeopardy - A Plea is a Plea

In Vann v. State, 234 Ga. App. 130, 506 S.E.2d 173 (1998), the court reversed the denial of Vann's plea in bar on a D.U.I. accusation.  According to the record, in an earlier unreported hearing she had entered pleas of guilty to reckless driving and speeding arising from the same conduct.  The plea and sentence document showed these facts but also contained a notation that the plea was "refused" which was signed by the trial judge.  A separate Order of Probation was also in the record.  It was signed by the defendant, the judge, and the probation officer.  The court rejected the State's contention that these documents did not fully reflect all that had occurred in the prior proceedings because there was no transcript.  The court noted that "a sentence which has been reduced to writing and signed by the judge may not be increased after the defendant has begun to serve that sentence."

 

Double Jeopardy - The Statute Does Not Preclude Successive State and Municipal Prosecutions

 

Puckett v. State, 239 Ga.App. 582;  A99A 1039; 1999 WL 600367 (August 11, 1999)

In a DUI case, defendant was arrested for violation of two State law offenses (DUI and failure to maintain lane) and one municipal ordinance violation.  Defendant requested a jury trial for the three offenses.  For reasons unlisted in the Court of Appeals decision, the ordinance violation was retained in the Municipal Court while the other charges went to the State Court.  It sounds like Defendant's attorney kept one charge in the Municipal Court so he could raise his appeal, namely: Since the ordinance violation was disposed of in the Municipal Court, the other two charges could not be prosecuted because of double jeopardy considerations.  The Court of Appeals denied the double jeopardy claim in holding that OCGA  § 16-1-7(b) does not preclude successive state and municipal prosecutions, only successive prosecutions for state crimes.

 

Double Jeopardy - GCIC Administrative Change is Not an Adjudication

 

McKinney v. State A99A1193; 1999 WL 1037991 (November 16, 1999)

Defendant was sentenced under the First Offender Act to five years probation.  While at the detention center, he violated probation, had his probation revoked, but his first offender status was left intact.  After release from jail, he was charged and convicted of DUI.  The Court again revoked a portion of his original sentence, but left his first offender status intact.  After the DUI conviction, the Georgia Crime Information Center administratively changed his first offender status to a conviction.  D

 

Defendant was subsequently charged with another DUI and the Court revoked his first offender status and sentenced him to a jail term.  Defendant contended that the GCIC's administrative action was an adjudication and punishment that placed him in jeopardy and the Court thus had no authority to adjudicate him guilty and sentence him to jail.  The Court of Appeals held that the GCIC action was neither an adjudication nor punishment.

 

Double Jeopardy-Mistrial

 

Spradley v. State, A99A1618; 2000 WL 146339 (February 11, 2000)

            Double jeopardy generally does not apply in case of a mistrial unless the prosecutor goads defense counsel into asking for it.  The Court of Appeals said that, although the trial court could have found otherwise, its ruling that the prosecutor did not intend to cause the mistrial was authorized by the evidence and the denial of the plea in bar was thus proper.

 

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MIRANDA RIGHTS

 

Miranda Rights - You Must Reasonably Believe You Are Under Arrest

 

Lancaster v. State A99A0830; 1999 WL 618117 (August 17, 1999)

Defendant was pulled over after he swerved into the lane next to him almost striking a police car that slammed on brakes to avoid the collision.  Defendant smelled of alcohol, his speech was slurred, his eyes were bloodshot and watery, and his face was red and flushed.  After administering several field sobriety tests, the officer decided to arrest defendant for DUI.  He then questioned defendant about how much he had to drink and defendant admitted to 8-10 beers.  On appeal, defendant contended 1) that his motion for a mistrial should have been granted when the prosecutor commented on defendant's right to remain silent, and 2) that his motion to suppress his statement regarding how much he had to drink should have been suppressed since the officer did not advise him of his Miranda rights.  As to the mistrial, the Court of Appeals ruled that since defendant's lawyer did not renew his motion for a mistrial after the trial court gave a curative instruction, he failed to preserve any error for appeal.  As to the trial court's refusal to suppress his statement regarding the 8-10 beers, the Court of Appeals determined that although the officer decided to arrest defendant before defendant admitted to drinking the beers, the officer had not communicated that decision to defendant prior to defendant's statement.  The Court found that defendant had no reason to believe that he was under arrest at the time he made the statement. (Remember, Miranda rights attach only after you are under arrest).

 

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Jury Charges

 

Jury Challenges for Cause

Another one of those pesky “fair trial” issues was involved in Davis v. State, 236 Ga. App. 32, 510 S.E.2d 889 (1999). Davis held active duty police officers in the jury panel must be excused for cause upon motion of the defendant. The trial court's failure to do so here resulted in a reversal of all convictions.

 

Jury Charges Circumstantial Evidence

The court continued to repeat the now familiar instruction to trial courts that, upon proper request, they must give a charge on the circumstantial evidence principle embodied in O.C.G.A. § 24‑4‑6. Tomko v. State, 233 Ga. App. 20, 503 S.E.2d 300 (1998); Waits v. State, 232 Ga.App. 357, 501 S.E.2d 870 (1998). It is amazing that convictions are still being reversed for this error.

 

Jury Charges Mandatory Inference

Charging the jury that where the driver's alcohol concentration is .08 grams or more "it shall be inferred the person was under the influence of alcohol" requires a reversal of a "less safe" conviction under O.C.G.A. Sec. 40‑6‑391(a)(1).  However, the "per se" conviction of Davis under subsection (a)(5) is unaffected by this error. Davis v. State, 236 Ga. App. 32, 510 S.E.2d 32 (1999).

 

Jury Charges – Causation in Vehicular Homicide Cases

            Miller v. State,  236 Ga.App. 825, 513 S.E.2d 27 (1999);  During deliberations in a vehicular homicide case, the jury asked the court whether the defendant could be convicted of vehicular homicide based solely on a finding that he violated the DUI statute.  The court simply recharged the jury by again reading the vehicular homicide statute, and refused to give a charge on proximate cause requested by defendant.  Court of Appeals reversed conviction, holding that “[t]he significance of causation as the connecting link, causation in the legal sense of proximate cause, was not explained,” and, the defendant was, therefore, denied a potential defense.

 

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Merger of Offenses

 

Lesser Included Offenses

In Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999), the defendant was convicted of driving with marijuana present in his blood or urine and possession of marijuana based only on a positive blood test.  Chadwick argued the two offenses merged.  The court agreed.  Applying the "actual evidence" test of O.C.G.A. Sec. 16‑1‑6 the court concluded that since the State “used up” the blood test evidence in proving the D.U.I. charge, the drug offense was included in the D.U.I. “as a matter of fact,” and it was error for the court to sentence Chadwick for both charges.

 

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Administrative License Suspension

 

Administrative License Suspension - DPS Suspension Upheld

 

Miles v. Smith, 239 Ga.App. 641;  A99A1445; 1999 WL 618100 (August 17, 1999)

Prior to trial, at a Department of Public Safety (DPS) administrative license suspension (ALS) hearing, defendant's driver's license was suspended for one year due to his refusal to take the state administered chemical test.  On appeal, the Court of Appeals found that defendant initially agreed to take the official breath test.  As the deputy was ready to administer the test, defendant complained of chest pains.  After EMTs found nothing wrong with defendant, the deputy attempted to administer the breath test again.  Defendant then complained of excruciating pain and said he needed medical attention.  As they were leaving for the hospital, the deputy suggested a blood test at the hospital and defendant agreed.  At the hospital, defendant refused any treatment or drawing of his blood, and requested to be transferred to a hospital that could accommodate his rare blood type (he said he thought he had internal bleeding).  After being x-rayed, he went home without taking the blood test.  He never sought treatment at another hospital for internal bleeding.  The Court of Appeals upheld the DPS suspension for refusing to take the state administered test.

 

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Prescription Drug DUI

 

Rx Drug DUI - Strange Holding

 

Walker v. State A99A0877; 1999 WL 652280 (August 27, 1999)

The judge sitting as a trier of fact in a bench trial found defendant guilty of driving under the influence of a prescription drug (an antidepressant) to the extent that it was less safe for her to drive.  Defendant challenged the sufficiency of the evidence on appeal.  The Court of Appeals agreed that no proof existed that the use of the prescription drug caused the erratic driving.  Nevertheless, the appellate court ruled that because defendant refused to take the state administered test of her blood, the trier of fact was thus authorized to presume that defendant was under the influence of a "substance" which impaired her driving. [The following is a DUIGUY comment].  This is an interesting holding of the Court of Appeals since the trial judge did not find that defendant was under the influence of a "substance."  The judge specifically found that she was under the influence of a prescription drug.  The appellate court's agreement with defendant that no proof existed that the prescription drug caused her erratic driving coupled with the 1991 case of Steele v. State, 260 Ga. 835 (February 25, 1991), (greater burden of proof on the State when prescription medication is involved) should have resulted in an acquittal of defendant.

 

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Field Sobriety Tests

 

Field Sobriety Tests - Miranda Only Applies if Under Arrest

 

Forsman v. State; 239 Ga.App 612;  A99A1119; 1999 WL 548637; 99FCDR3062

(July 29, 1999)

Defendant was driving 75 in a 55 mph zone.  His weaving forced other drivers to change lanes to avoid an accident.  Once defendant was stopped, he exited his car and had to hold onto his vehicle for support.  The officer noted a strong odor of alcohol, his skin was blushed, and he appeared unbalanced.  Defendant submitted to the Horizontal Gaze Nystagmus Test and then decided to decline any other field sobriety test.  Defendant contended on appeal that his rights against self-incrimination were violated when the trial court allowed evidence regarding defendant's refusal to perform any other field tests after the horizontal gaze Nystagmus test.  The Court of Appeals said that no violation of defendant's rights occurred since defendant was not in custody at the time of his refusal to take the tests (if defendant were in custody at the time, before any field test could be administered, the police would first have to advise defendant of his Miranda rights).

 

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Expert Testimony

 

Expert Testimony - An Expert Cannot Opine Based Entirely Upon Another's Report

 

Cornell v. State 239 Ga.App 127 (July 14, 1999)

Defendant's breath test results were .157.  At trial, defendant's attorney presented the owner of a body shop who testified that defendant spent the day of his arrest in the paint shop while a car was being painted.  The owner testified that the paint contained toluene and that defendant must have inhaled that substance.  Although the attorney labeled certain documents regarding the paint as defense exhibits, they were never admitted into evidence because the attorney did not lay a proper foundation for their admission.  Defendant's attorney called an expert witness to testify about the effect of inhaling paint fumes on breath tests.  The trial court ruled that the expert could only testify about the effect of toluene because that was the only substance proved to be in the paint.  In holding that defendant's argument was without merit, the Court of appeals held that not even an expert can give an opinion based entirely upon reports which have been prepared by others and which are not in evidence.

 

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Venue

 

Sufficiency of the Evidence Venue

In Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (1998), the Georgia Supreme Court overruled the Court of Appeals' decision in Graves v. State, 227 Ga. App. 628, 490 S.E.2d 111 (1997). The Court of Appeals had ruled that despite a lack of evidence venue could be inferred from the fact that the county of the offense had been written on the UTC by the officer. However, the Supreme Court held: "[T]he UTCs cannot be treated as evidence, and thus cannot provide the factual basis necessary to establish venue."

In Waller v. State, 231 Ga. App. 323, 498 S.E.2d 362 (1998), the court held the State failed to prove the D.U.I. offense was committed within the jurisdiction of the trial court, the Atlanta City Court. The court noted that under the hodgepodge of special legislation defining the jurisdiction of that court the same did not extend to those portions of the City of Atlanta which he in Dekalb County. There was no evidence as to whether the offense was committed in Fulton or Dekalb County. That the charging citation alleged the offense had been committed in Dekalb county was not sufficient to establish that fact.

In a full court decision in Joiner v. State, 231 Ga. App. 61, 497 S.E.2d 642 (1998), the court rejected the argument that the State failed to prove venue was proper in Troup County. Although there was no direct evidence of venue, the court made "an inference" of venue from the fact that the defendant was arrested by Troup County deputies and was taken to the LaGrange Police Department for breath testing.  Justice Ruffin's forceful dissent argues the majority has abrogated the "beyond a reasonable doubt" standard of Jackson v. Virginia. 

Garrett v. State, 236 Ga.App. 385, 512 S.E.2d 315 (1999).  UTC does not provide the factual predicate necessary to establish venue.

Bass v. State, 238Ga.App. 503, 519 S.E.2d 294 (A99A0210, 6-10-99).  Court held that circumstantial evidence of venue was sufficient.  Judge Ruffin dissented, as he did in Joiner.     

Bradley v. State, 238Ga.App. 490, 519 S.E.2d 261 (A99A0013, 6-9-99).  Court reversed conviction because not even slight evidence of venue was shown.  Arresting officer was state trooper, so no inference could be drawn that officer was acting within territorial jurisdiction of a particular county.  Court of Appeals rejected State’s argument that trial judge was familiar with the area, because no judicial notice of venue was made part of the record.

            Dandy v. State, 238 Ga.App. 435, 518 S.E.2d 907 (A99A0849, 6/3/99).  Court of Appeals affirmed conviction where the trial court allowed the State to reopen its case and present evidence to establish that venue was proper.

 

Sufficiency of the Evidence - Venue

Bradley v. State 238 Ga.App. 490 (June 9, 1999)

The Court of Appeals reversed a DUI conviction because the State failed to prove venue (the county of the arrest).  The only evidence for the State came from a State Trooper and videotape.  Neither the Trooper nor the videotape mentioned the county of the stop.  Since the arresting officer was a state trooper and not a county officer, no inference could be made as to the county of the stop.  Since no proof was tendered to establish venue, the conviction was reversed.

 

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Similar Transaction

 

Similar Transactions Certified Copies

The proof of a prior similar conviction for D.U.I. using only certified copies of court records was held, to be error in Sheffield v. State,  237 Ga. App. 701 (Case No. A99A0014, 4/21/99). Because of the "circumstantial nature of the case" the court could not say the error was harmless and the conviction for "less safe" D.U.I. was reversed.

 

Similar Transaction - Course of Conduct

 

Settle v. State, 239 Ga.App. 476; A99A1702; 1999 WL 548692: 99FCDR3146 (July 29, 1999)

Defendant was charged with suspended license, no insurance, and driving on an expired tag.  After a pretrial similar transaction hearing, the state tendered evidence regarding two prior incidents.  One involved no headlights and suspended license.  The other also involved suspended license as well as running a stop sign and no proof of insurance.  Defendant contended on appeal that the prior incidents should not be admitted.  The Court of Appeals disagreed and held that all three offenses demonstrate defendant's course of conduct in driving with a suspended license.

 

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Other DUI Cases

 

Directed Verdict of Guilty – Not in the U.S.A.

It is elementary that a trial judge cannot direct a verdict of guilty against a criminal defendant in a jury trial.  Nonetheless, the court found it necessary to reverse a trial judge for doing just that in Burke v. State, 233 Ga. App. 778, 505 S.E.2d 528 (1998).

 

Sufficiency of the Evidence Refusal to Take State's Test

In Brinson v. State, 232 Ga. App. 706, 503 S.E.2d 599 (1998), the evidence was deemed insufficient to support Brinson's conviction for driving under the influence of drugs. There the officer testified stopped the defendant for crossing the center line, smelled alcohol and marijuana emanating from defendant and his car. Defendant's speech was slurred, his appearance "sluggish" and he had a "roach" in his ash tray. A breath test for alcohol showed only ".03" so the officer requested defendant submit to a urine test. The defendant refused explaining that it would "come back positive". The trial court, acting as the finder of fact in a bench trial, expressly relied only on the refusal to submit to the second test in finding Brinson guilty. In reversing the conviction the court stated: "Although defendant's refusal to submit to a State‑administered urine test was admissible as positive evidence creating an inference that the test would show the presence of the prohibited substance under Brooks v. State, 87 Ga. App. 194, 369 S.E.2d 801, this evidence, alone, is insufficient to sustain defendant's conviction of driving under the influence of drugs under the standard prescribed by Jackson v. Virginia, 443 U.S. 307."

 

Sufficiency of the Evidence Impairment

In Bowen v. State, 325 Ga.App. 900, 510 S.E.2d 873 (1999) the Court of Appeals held that evidence that the defendant was towing a boat on a trailer with no tail lights after dark, his eyes were red and glassy, he admitted to smoking marijuana two hours earlier and his urine tested positive for marijuana, was not sufficient evidence to support a conviction for driving while under the influence of marijuana in violation of O.C.G.A. Sec. 40‑6‑391(a)(2).  The court noted that while the positive urine screen would have been adequate to support a conviction under O.C.G.A. Sec. 40‑6‑391(a)(6) (driving with any amount of a drug in the blood or urine), the State did not charge Bowen with that offense.

 

Appeal on Stipulated Facts

In Richards v. State, 269 Ga. 483, 500 S.E.2d 581 (1998), the defendant was tried at a bench trial upon stipulated facts.  On appeal he challenged the trial court's denial of his motion to suppress the results of the State's breath test.  The Court of Appeals, in Richards v. State, 225 Ga. App. 777, 484 S.E.2d 683 (1997), refused to review that holding, finding that Richards waived his right to appeal when he stipulated the facts at trial.  Any error was, therefore, harmless.  In reversing, the Supreme Court found that the stipulations "were conditioned upon Richards' right to challenge the admissibility of the results of the breath tests on appeal." Moreover, the court said, the Court of Appeals' ruling was wrong because it "defeats the clear intent of the parties and the trial court."

 

Administrative Procedure Act

The question of whether the crime lab's testing methods are subject to the Georgia Administrative Procedure Act seems to have been finally answered in Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998).  Helmeci was convicted of 2nd degree vehicular homicide, unsafe equipment, driving with a controlled substance (amphetamine) in his urine, and possession of the substance by having it in his urine.  A crime lab blood test of Helmeci following a fatal traffic accident was negative but a urine test was positive for a trace amount of amphetamine.  At trial, Helmeci had unsuccessfully sought to suppress the State's urine test results because the State had promulgated no rules or regulations approving those testing methods in accordance with the Georgia Administrative Procedure Act (O.C.G.A. § 50‑13‑1 et seq.).  See State v. Holton, 173 Ga. App. 241, 242 , 326 S.E.2d 235 (1985); Corner v. State, 223 Ga. App. 353, 354, 477 S.E.2d 593 (1996) [DFS required to substantially comply with the requirements of the APA, in "approving" those "methods" of testing referred to in § 40‑6‑392 (a) (1)].

The court originally agreed with Helmeci's argument and reversed his conviction and the denial of his motion to suppress.  However, an amicus curiae by the Georgia Attorney General prompted a reconsideration of its decision.  On March 2, 1998, the court reinstated the conviction relying on the provisions of the newly enacted O.C.G.A. §35‑3‑155. That statute provides: "Unless otherwise specifically provided by law, technical, scientific, and similar processes, guidelines, standards, and methods for the collection, preservation, or testing of evidence adopted by the [Division of Forensic Sciences] shall not be subject to the provisions of Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act."'  Relying on State v. Martin, 266 Ga. 244, 245, 466 S.E.2d 216 (1996), the court rejected Helmeci's objection that the statute, passed after his conviction, should not be retroactively applied.  "[R]etroactive application of a statute dealing with evidentiary matters such as those in this case does not violate constitutional principles."

            The Court of Appeals also rejected Helmeci's argument that the State presented insufficient evidence that the urinalysis machine was operated with all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order, as required by O.C.G.A. § 40‑6‑392 (a) (1) (A). The crime lab official who did the testing testified that he was familiar with the machines and their operation and that they were in proper working condition. This was sufficient despite the witness' lack of familiarity with the machine's internal workings because "[t]he statute does not demand that the examiner have an expert's knowledge of the underlying scientific principles governing the functioning of the machine." Dotson v. State, 179 Ga. App. 233, 234, 345 S.E.2d 871 (1986).

Helmeci sought certiorari from the Georgia Supreme Court which denied the same without opinion.  Following the conclusion of his direct appeal Helmeci brought a state habeas corpus action based on his trial lawyer's failure to argue that the testing exceeded the scope of the consent given under Jewell, infra.  Simply stated, Helmeci could not be charged with possession of the drug (a felony) where he only gave consent under implied consent.  Habeas relief was granted and the State appealed.  The Georgia Supreme Court ruled that defendant's consent to take the test pursuant to the DUI implied consent warnings was not consent to search his urine for evidence of possession.  Defendant's 12-year sentence for possession of the drugs was reversed.  Turpin v. Helmeci,  271 Ga. 224, ___ S.E.2d ___ (S99A0453, 6-14-99).

 

Sentencing

 

Phillips v. State, A99A2501; 1999 WL 1256413 (December 28, 1999)

            Defendant was charged with violation of the DUI statute by having both an unlawful blood alcohol level (.10 or higher) and with being a less safe driver due to alcohol consumption.  Defendant pled guilty to being a less safe driver and the prosecutor dismissed the per se count.  During sentencing, the judge made the statement that defendant's blood alcohol level was .11 and asked defendant if that alcohol was in her system while she was driving.  Defendant replied in the affirmative.  In addition to other requirements, the judge then sentenced defendant to serve one day in jail, which is required when operating a vehicle with a blood alcohol level of .08 or higher.  Defendant argued that since she pled only to the less safe portion of the statute, the one day in jail was not required.  Although I disagree with the Court of Appeals that the judge's statement regarding defendant's blood alcohol level was properly admitted evidence that required the judge to impose a mandatory one day jail term, I believe this is a tempest in a legal teapot.  After all, a judge can impose any legal sentence.  In a DUI that means a judge can impose up to one year in jail.  Clearly, if a judge wants you to do one day, there's not much you can do about it.

 

Sufficiency of the Evidence- Not Much Interesting Here

 

Vanorsdall v. State A99A2081; 2000 WL 37732 (January 19, 2000)

            Not much interesting in the sufficiency of the evidence.  The Appellate Court said that inability to pass field sobriety tests, along with odor of alcohol, bloodshot and dilated eyes, and refusal to take the state test were sufficient to convict of DUI less safe. 

 

Sufficiency of the Evidence, Jury Selection

 

Kelly v. State A99A2001; 2000 WL 45686 (January 21, 2000)

            The odor of alcohol, poor performance on field sobriety tests, and speeding through a stop sign authorized a conviction for DUI.  Furthermore, the trial court did not abuse its discretion in overruling a defense motion to strike a juror for cause notwithstanding that the juror initially expressed doubt regarding her ability to be impartial.  Apparently the judge rehabilitated the juror and declined to strike the juror for cause.

 

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Under 21 D.U.I. Equal Protection

In Barnett v. State, 270 Ga. 472 (1999), the appellant, age 17, challenged his conviction under O.C.G.A. Sec. 40‑6‑391(k). That subsection prohibits persons under 21 from driving with an alcohol concentration of .02 grams or more.  Barnett argued that because persons over 21 are presumed not to be under the influence with an alcohol concentration of .05 or less [O.C.G.A. Sec. 40‑6‑392(b)(1)] he was denied his right to equal protection of the law under the State and Federal Constitutions.  In rejecting this contention the court found subsection (k) bore a "reasonable relationship" to the legitimate goal of "[p]rotection of the public safety and safeguarding the physical well‑being of children."  See also Firsanov v. State, 270 Ga. 873, 513 S.E.2d 184 (1999).

 

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Illegal Sentence

 

Taylor v. State, 238 Ga.App 753 (June 29, 1999)

Defendant was convicted of violating the DUI statute (O.C.G.A. § 40-6-391) by driving 1) under the influence of alcohol, 2) under the influence of drugs, and 3) under the combined influence of alcohol and drugs.  The judge sentenced defendant to three consecutive twelve- month jail sentences on the DUI counts.  The Court of Appeals held that the three counts of DUI are merely three different modes of committing the single offense of DUI.  The trial court thus erred in subjecting him to multiple punishments for one offense.

In the same case, the jury could not reach a decision on two counts of vehicular homicide and the judge declared a mistrial.  Defendant argued on appeal that further prosecution on the vehicular homicide charges is barred because the State would have to prove the elements of the lesser- included offense of the underlying traffic violations of which he was convicted.  The Court of Appeals cited a 1996 Georgia Supreme Court case with similar facts.  In that case the Supreme Court held that a retrial of the greater offense is allowed notwithstanding a conviction of the lesser offense.

 

Appeal - You Need A Transcript

 

Lyons v. State, 239 Ga.App. 325;  A99A1613; 239 Ga.App. 324 (July 26, 1999)

        Defendant's case was heard in the Probate Court of Whitfield County.  No jury is available in a Probate Court and the Probate judge sits as the trier of fact in place of a jury.  The judge found defendant guilty in a DUI case.  In a misdemeanor case, if a defendant wants the events of a trial reported, he must pay for a court reporter.  Usually a court reporter is not provided in a Probate Court.  Most attorneys that anticipate an appeal from a Probate Court will supply their own court reporter.  In this instance, defendant did not bring his own court reporter to transcribe the testimony.  Defendant contended on appeal that the appeals process from a Probate Court is unconstitutional because it places the burden on defendant to establish that a record was requested.  Defendant said that is a due process violation since, although he says he orally requested that the trial be transcribed, no transcript exists to show that he made the oral request. (Confused?  Read on).  The Court of Appeals said that no due process violation existed since defendant could have 1) made a written request for a transcription, and 2) made a written objection to any refusal to transcribe the trial.  The Court of Appeals further noted that the law provides for a procedure to recreate the events of an unrecorded trial, but defendant did not follow this procedure either.  The upshot: if you want to appeal, either ensure that a court reporter will be there, or make other efforts to preserve your issues for appeal.

 

Defective Charging Instrument

 

Smith v. State, 239 Ga.App 515; A99A1133; 1999 WL 566394 (August 4, 1999)

In an August 4 case, defendant was charged with violating the DUI statute two different ways.  First he was charged with being under the influence of alcohol to the extent that he was a less safe driver.  Second, he was charged with having an unlawful blood alcohol level in violation of O.C.G.A. § 40-6-391(a)(4).  For the reader's information, it is impossible to have an unlawful blood alcohol level in violation of that particular code section.  Counsel for defendant contended on appeal that since both DUI counts involved the same transaction, if one count failed, the other count should also fail.  The Court of Appeals said that a defect in one count need not affect the alternative count relating to the same transaction.  Counsel for defendant next argued that the charges should have been dismissed because the formal accusatory document contained charges different than those listed on the Uniform Traffic Citations (UTC).  Apparently misunderstanding the case of State v. Rustin, counsel argued that the Uniform Traffic Citations could not be amended by a formal accusation.  Counsel was correct in stating that a UTC could not be amended, but was incorrect in believing that a formal accusation was an amendment to a UTC.  The Rustin court said that the subsequent accusation "superseded" the UTC rather than amended it.  (This is allowable as long as the formal accusation is filed with the Clerk of the Court within two years of the filing of the UTC).

 

Sufficiency of the Evidence - Plenty Here

 

Sams v. State, 239 Ga.App. 715;  A99A1369; 1999 WL 652277 (August 27, 1999)

Defendant was convicted of driving while being a habitual violator.  The Court of Appeals ruled that defendant's admission that he was at a bar with his car, that he blacked out due to alcohol consumption, that he did not remember how he got home, that his car was wrecked within a block and a half of his home, and that defendant had his car keys on him when he went to get his car out of impound was sufficient evidence to convict.  In a second enumeration of error, defendant contended that the officer's testimony at trial regarding why he believed defendant wrecked his car should have been struck from evidence because it went to the ultimate issue of fact that the jury should decide.  The Court of Appeals agreed that the officer's testimony invaded the jury's province as to an ultimate issue of fact, but found no error because the error was induced by a defense counsel question.

 


Alcosensor - Improper Foundation

 

Hawkins V. State A99A2358; 1999 WL 740265 (September 23, 1999)

In a DUI case decided September 23, the Court of Appeals ruled that the Probate Court of Butts County erroneously allowed testimony of the roadside Alcosensor results without a proper foundation. Unfortunately, the Appellate Court ruled that this was harmless error and affirmed the DUI conviction.

 

Dearth of Error

 

Driver v. State A99A1344; 1999 WL 962417 (October 22, 1999)

In this DUI/Marijuana Possession case, the Court of Appeals made several findings. First, when a defendant admits under oath that the material found in her purse was marijuana, any alleged defect in the State's evidence becomes irrelevant.  Second, a proper demand for exculpatory materials in the possession of the State, (evidence that tends to show that defendant is not guilty), does require pretrial disclosure of the materials.  Third, a trained and experienced officer may render his opinion regarding the state of defendant's intoxication. Fourth, if defendant had a prior DUI, it is coming into evidence as a similar transaction. Fifth, any error in charging the jury that the police may search a driver arrested for DUI for drugs and alcohol was harmless since defendant voluntarily admitted at trial that her purse contained marijuana.

 

Police Still Need a Warrant

 

Threatt v. State A99A1456; 1999 WL 983890 (November 1, 1999)

Information gathered when a police officer stepped into defendant's house without a warrant is inadmissible at a retrial.

 

Case Remanded for Sentencing on No Proof of Insurance

 

Bailey v. State A99A2065; 1999 WL 1116879

            Defendant was charged with suspended license and no proof of insurance.  He demanded a jury trial.  Under OCGA § 40-6-10, the maximum fine for no proof of insurance is $1000 and the driver's license is suspended unless the accused shows the court that the required insurance coverage was in effect at the time of the citation.  In that instance, the maximum fine is $25 and no license suspension occurs. Prior to trial, defendant presented his insurance card to the judge.  The judge refused to consider the evidence.  The jury found defendant guilty on both counts and the judge sentenced him to fines of $1023 on each count.  The Court of Appeals held that a jury conviction for no proof of insurance has no impact on the sentencing portion of the statute. Once defendant provides a valid insurance card, the sentence for no proof of insurance must not exceed the statutory amount of $25.

 

Appeal Dismissed

 

Keller v. State A00A0447; 2000 WL 97970 (January 31, 2000)

            Defendant was convicted of DUI, given a two year sentence, but allowed to remain free on bond pending appeal.  Immediately after this trial, he appeared in another county for another DUI trial and disappeared in the middle of trial.  Within two weeks of his first trial in which the appeal was pending, the first trial court dismissed his appeal.  After being picked up two years later defendant still had done nothing to reopen his appeal. The Court of Appeals found that, under the circumstances, defendant by his own actions forfeited his right to appeal.

 

Sufficiency of the Evidence

 

Goodson v. State A99A1932; 2000 WL 113919 (February 1, 2000)

            An accident along with the odor of alcohol, bloodshot eyes, positive alcosensor, six clues on the HGN field test, and the officer's opinion that he was a less safe driver due to alcohol consumption is sufficient to convict for less safe DUI.

 

Sufficiency of the Evidence

 

Goddard v. State A99A1858; 2000 WL 114294 (February 1, 2000)

            Speeding, weaving, strong odor of alcohol, defendant's admission of having three beers, a positive alcosensor, performance on field tests, and a .067 test for someone under 21 authorized a guilty verdict. [DUIGUY COMMENT: a .02 is all that is required to convict a DUI if defendant is under 21.  However, standardized field sobriety tests, if properly administered and properly scored, only give a probability that someone is .10 or higher.  Since the test indicated only .067, I would strongly question the officer's ability to administer and score these evaluations.  This case also points out the fallacy of the correlation of the odor of alcohol to defendant's intoxication.  In this instance, a strong odor resulted in a .067.]

 

Rebuttal

 

Brice v. State A99A1909; 2000 WL 114513

            Defendant was convicted of DUI.  During opening statement, during cross-examination, and during direct examination of defendant, counsel for Defendant invoked the name of Craig Snell.  After defendant rested his case, the prosecutor called Craig Snell in rebuttal.  After Mr. Snell's testimony, the prosecutor called Sheriff Knight to impeach Snell with a prior inconsistent statement.  Counsel for defendant objected on the basis that neither witness was on the list of witnesses demanded by defendant.  The Court of Appeals held that since the first time the prosecutor had notice of Snell as a witness was when Defense Counsel invoked his name, Snell was a newly discovered witness and could be called in rebuttal.  The Court also said using Sheriff Knight to impeach Snell with a prior inconsistent statement was permissible.

 

Sufficiency of the Evidence

 

O'Brien v. State, A99A1876; 2000 WL 146336 (February 11, 2000)

            Weaving back and forth twice across two lanes before stopping abruptly, then signaling and making a left turn, along with a strong odor of alcohol, difficulty speaking, using the car door for support, failing the Horizontal Gaze Nystagmus Test, and the officer's opinion that defendant was less safe to drive due to alcohol consumption is sufficient evidence to convict for DUI.

 

Sufficiency of the Evidence

 

Gilmore v. State, A99A2367; 2000 WL 198949 (February 22, 2000)

            Defendant was convicted at bench trial of DUI and Failure to Yield in violation of OCGA § 40-6-72(c).  The evidence showed that defendant was involved in a two-car accident on a rainy, foggy afternoon.  He also had a strong odor of alcohol about his person. (See Goddard, supra. regarding the strong odor of alcohol).  Defendant testified that he consumed about a half a pint after the accident.  He tested .131 on the Intoxilyzer.  The Court of Appeals said that the odor of alcohol along with the accident was sufficient evidence to convict.  Also on appeal, defendant contended that the Intox results had no probative value since defendant testified that he drank half a pint of alcohol after the accident.  The Court of Appeals said it was within the province of the trial judge sitting as trier of fact to determine the credibility of the witness.

 

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Probable Cause to Search

 

Probable Cause to Search - Smell of Burnt Marijuana

 

State v. Folk 238 Ga.App. 206 (May 24, 1999)

Although not a DUI case, a Georgia Court of Appeals decision on a "stop and search" issue has potential ramifications for DUI cases.  In the decision, the court held for the first time that "a trained police officer's perception of the odor of burning marijuana, provided his ability to identify that odor is placed into evidence, constitutes sufficient probable cause to support the warrantless search of a vehicle."  Now that the odor of burnt marijuana alone allows an officer to search a vehicle, it is all the more important that the driver of the vehicle does not admit to smoking marijuana since admitting to smoking marijuana clearly would give the officer probable cause to arrest for DUI.  Unlike a DUI alcohol case, even a first time DUI drug conviction would result in a minimum 180-day license suspension with no limited driving permit.

 

Probable Cause - Did the Officer Really Smell Burnt Marijuana

 

State v. Long, 239 Ga.App. 463;  A99A1246; 1999 WL 548661; 99FCDR3054 (July 29, 1999)

Defendant was stopped for weaving.  Videotape was made of the stop.  The officer issued defendant a warning and a lecture.  He then asked for permission to search defendant's vehicle for contraband.  The reasons given to defendant for the search did not include the smell of burnt marijuana.  Defendant said he really didn't want him to but there's nothing in there.  The officer searched anyway and found a warm pipe containing marijuana residue as well a roach.  At the motion to suppress, the officer said that he smelled a strong odor of burnt marijuana coming from inside the vehicle.  The trial court granted defendant's motion to suppress saying that after issuing only a warning for failure to maintain lane, the probable cause for the stop ceased.  In vacating the trial court's decision, the Court of Appeals noted that probable cause to search could develop during the course of a legitimate stop.  Under the case law, the smell of burnt marijuana could provide the probable cause for the search.  The question then becomes did the officer really smell the odor of marijuana.  The case was sent back to the trial court to determine the credibility of the officer.

 

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CASES WITH DUI IMPLICATIONS

 

Intentional Inhalation of Paint Fumes

 

Hearsay - Label on a Can is Hearsay

 

Ledford v. State 239 Ga.App. 237 (June 28, 1999)

Although not a DUI case, an Appellate Court decision has DUI implications.  In that case, defendant was found guilty of intentionally inhaling paint fumes.  The statute makes it illegal intentionally to smell or inhale fumes from any model glue.  Model glue is defined as any chemical substance that contains, among other things, acetone and toluene.  Defendant admitted to intentionally inhaling fumes from a bag that contained a can of gold spray paint and paper towels saturated with gold paint.  Defendant had traces of gold paint around his nose and mouth.  The label on the can stated that the paint contained toluene.  In reversing the conviction, the Court of Appeals held that the contents of the label was hearsay, and hearsay that is admitted into evidence without objection lacks probative value to establish any fact. NOTE:  If you are under the influence of these inhaled fumes while driving, you are in violation of the DUI statute.  I will leave it to the vivid imaginations of the defense attorneys out there to come up with other applications of this case.

 

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OTHER CASES

 

Statute of Limitations

 

Statute of Limitations - Superseding Indictment

 

Wooten v. State A99A1363; 1999 WL 1006358 (November 8, 1999)

Defendant was charged with two misdemeanors.  An Accusation was filed within the two year statute of limitations for misdemeanors.  An indictment was then filed outside the two year statute for misdemeanors.  The indictment included the original two misdemeanor charges and a new felony charge.  The State then dismissed the accusation.  Defense counsel contended that since the indictment was filed outside the two year statute on misdemeanors, the misdemeanor charges should be dismissed.  This is a case of first impression.  The Court of Appeals succumbed to the Siren call of persuasive authority and held that a superseding indictment brought after the statute of limitations had run is valid if (1) the original indictment was timely, (2) the original indictment is pending, and (3) the superseding indictment does not broaden or substantially amend the original charge.

 

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Probation Revocations

 

Probation Revocations - Special Conditions

 

Glover v. State 239 Ga.App. 155 (July 16, 1999)

The Court of Appeals issued a complicated ruling on July 16.  The issue in this case related to probation revocations.  Although not specifically a DUI case, virtually every criminal case involves probation, and DUI cases are no exception.  Sometimes a DUI is the underlying offense for a major felony such as Homicide by Vehicle for which a sentence of 15 years can be imposed.  First, a brief explanation of probation:  When a defendant is found guilty at trial or pleads guilty prior to trial, the sentencing court must decide if it will sentence the defendant to incarceration, probation, or a combination of the two.  Generally while on probation, the defendant is not in jail, but must abide by certain terms and conditions of probation.  Common conditions are to report to the probation officer as required, payment of fines, payment of restitution, performance of community service, maintain employment, support dependents, etc.  Some conditions are mandated by statute, but a sentencing judge has broad discretion as to what conditions he/she may impose.  As long as defendant complies with all terms and conditions of probation, he should encounter no further problems with the legal system.  Many times, a defendant will violate one or more terms and conditions of probation.  In that case, his/her probation officer will petition the original sentencing court to revoke defendant's probation.  If a probationer violates probation by the commission of a felony or by violating a special condition of probation, the full amount of probation can be revoked.  However, if a probationer violates probation by the commission of a misdemeanor or a condition that is not a special condition of probation, the most that can be revoked is the lesser of the amount of probation remaining or two years, whichever is least.  The common wisdom among attorneys is that a mere technical violation of probation (e.g. non payment of a fine or failure to report to the probation officer) can result in no more than a two-year revocation.  However, according to this recent case, a judge can make payment of a fine a special condition of probation.  How weird can a probation revocation be now?  Well, let's assume two cases in which each defendant has ten years remaining on probation.  In one case, the probationer commits an assault and battery (misdemeanor offenses).  The most a judge can revoke is two years.  In the other case, the probationer fails to pay a fine that the judge made a special condition of probation.  The judge can revoke the full ten years.  Stay tuned for more cases from your judicial system that make no logical sense.

 

Probation Revocations - Admission Against Penal Interest

 

Kendrick v. State A99A2303 (October 14, 1999)

Defendant was on probation for felony VGSCA (amphetamine) and DUI.  The first twelve months of probation was to be served at a Diversion Center with the condition that any violation of the rules of the Center will be a violation of his probation.  The State filed a petition to revoke probation because he tested positive for alcohol and cocaine.  A probation officer with no personal knowledge of defendant's violations was allowed to submit documents related to the violations pursuant to her position as the records custodian.  The Court of Appeals held that an inadequate foundation had been laid to admit the documents as business records.  However, the appellate court ruled that since defendant signed the documents admitting guilt, they were admissible as evidence of an admission against the penal interest of defendant pursuant to OCGA § 24-3-31.

   

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