NOTE: THIS SECTION IS NO LONGER UPDATED. CASE LAW CHANGES. PLEASE CHECK WITH YOU LAWYER FOR THE MOST RECENT DECISIONS.

THE GEORGIA COURT OF APPEALS
INTERPRETS GEORGIA DUI LAW

CLICK HERE TO READ THE COMPLETE AND UP-TO-DATE VERSION OF GEORGIA DUI LAW IN PLAIN ENGLISH

CLICK HERE FOR 1999 GEORGIA COURT OF APPEALS DUI DECISIONS
CLICK HERE FOR 2000 GEORGIA COURT OF APPEALS DUI DECISIONS

The following synopses of Georgia DUI appellate cases start in December 2000 and come forward. My buddy and North Georgia DUI Guy partner, Gus McDonald (DUI lawyer extraordinaire) is a contributor.  All of his Georgia Appellate DUI synopses are followed by his initials (GMCD).

The format is essentially the same as before. However, to save space, the only Sufficiency of The Evidence cases we will post will be DUI Sufficiency cases of special significance. Also, instead of having their own category, Sufficiency cases are posted under the Evidence category.

We hope our interpretation of Georgia DUI case law and editorializing is helpful. Comments and criticism are encouraged.

J. Michael Mullis
The DUI GUY

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Last Updated: February 7, 2001

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ARTICULABLE SUSPICION/PROBABLE CAUSE
DOUBLE JEOPARDY
EVIDENCE 
IMPLIED CONSENT
INTOXILYZER 5000
JURY ISSUES
MIRANDA RIGHTS
ROADBLOCKS 
SEARCH
SENTENCING
SPEEDY TRIAL
DUE PROCESS
OTHER CASES  
PROBATION

The Headlines of Important Cases Are Green

ARTICULABLE SUSPICION/PROBABLE CAUSE

Probable Cause to Stop - None Here
McNeece v State 246 Ga App 720 (November 2000)
This Ohio resident was driving his Ohio registered car with Ohio plates and tinted windows.  The officer stopped the vehicle to investigate a suspected violation. Georgia window tint statute specifically excludes all out of state vehicles from detention solely for this purpose.  The officer stated under oath that he was not aware of this statue. The Court of Appeals ruled no probable cause for the stop existed.

MORAL- ignorance of the law is no excuse (even for those who enforce it).
GMCD

Probable Cause to Stop
Duke v State 2001 WL 15917 (Jan 29, 2001)
Duke was observed leaving a home that was under surveillance for drug activity.  He left the home in a van that the officers immediately followed and detained 2 blocks later. The stop was illegal since the officers failed to observe any activity that would lead a person to believe that a crime had been or was being committed.
GMCD

DOUBLE JEOPARDY

None Posted Yet

EVIDENCE

Evidence - Scientific Report 
Sillman v State 2000 WL 33125123 (Jan 24, 2000)
Defendant was convicted of DUI. On appeal he urged reversal because the state failed to provide the scientific report as required by his discovery request pursuant to OCGA17-16-23.  The trial court found that Sillman was given the test at the time he submitted.

MORAL-counsel did not argue that the purpose of the discovery statute was to let Sillman know about the evidence the State was going to use. QUERY-does an arrested person get to take personal belongings back into the cell?
GMCD

Evidence - Sufficiency
Keller v State 2001 WL 33118979 (Jan 19, 2001)
Keller was charged with driving on suspended license. The government failed to show that Keller ever received actual or constructive notice that his driver's license was suspended. Conviction reversed.
GMCD

Evidence - Intoxilyzer 5000
Brunson v State 200 WL 33115862 (Jan 18, 2001)
Phillip Brunson was convicted of both per se (.10) and less safe DUI offenses. Brunson sought reversal on the grounds that the State failed to comply with its own approved procedures when operating an Intoxilyzer 5000.  The appellate court sidestepped the issue by questioning whether the 20 min waiting rule was a part of the approved procedures by the Division of Forensic Sciences and the GBI.  In any event the court ruled that substantial compliance with the procedures could be found.

MORAL- Doesn't the State have the burden to prove and show that it follows its own rules pursuant to OCGA 40-6-392 (a)(1)(a). STILL BEGGING THE QUESTION HAS THERE EVER BEEN ANY APPROVAL OF TECHNIQUES FOR OPERATION? see Casey v State 249 Ga App 329 (Oct 08, 1999).
GMCD

Evidence - Intoxilyzer 5000 
Campbell v State 2000 WL 1946846 (Jan 16,2001)
A jury convicted Robert Campbell of a per se (.10) dui violation. Mr. Campbell presented an expert to shed light on the machines inherent unreliability. The expert testified that he had requisite credentials because he followed the techniques used by the state of Georgia.  The judge told the jury to disregard this testimony by stating, "the expert's procedure for operating the Intoxilyzer 5000 has not been approved by the state of Georgia or the Appellate courts." The Georgia Court of Appeals said that the judge was just being fair.

MORAL-the courts have severely restrained a person's right to defend him/her self, especially when questioning the Intoxilyzer 5000. Shouldn't a jury hear all of the facts and decide what they will and will not believe?
GMCD

Evidence - Hearsay
Dodgen v State 200 WL 6714 (Jan 03,2001)
Defendant was convicted of DUI.  She argued that she did not receive an independent test allowed under the implied consent notice. Dodgen offered to testify that she told the booking officer within 30 minutes of the purported refusal that she wanted to have an independent test.  The trial court said it was hearsay.

MORAL- would this testimony be relevant if she offered it to explain her course of conduct; and what about the res gestae exception to the hearsay rule?  Again the court speaks with a forked tongue; see McCaffery 2000 WL 33125112 (Jan 24, 2001).
GMCD

Evidence - Ineffective Assistance of Counsel
Lewis v State 2000 WL 1877624 (Dec 28, 2000)
Lewis argued that his trial was flawed because his attorney was not competent to represent him in that he did not know DUI law. His trial lawyer did not know simple DUI objections, and as a result, evidence was admitted that should not have been disallowed, namely the test results of an Alco sensor breath testing device. Appellate court denied relief since other evidence was overwhelming.

MORAL-don't go to Dentist for foot ache...Bad facts make Bad law.
GMCD

Evidence - Expert Testimony Re Intoxilyzer 5000 
Stone v State 2000 WL 1839408 (Dec 15, 2000)
Defendant was tried before a jury for DUI. She was convicted because the evidence showed she refused to take the breath test. She contended on appeal that she would have taken the test if given the opportunity.  The officer's training requires him at least to give her an opportunity to take an independent test.  Stone wanted to use an expert witness to show that the officer did not follow his training by failing to put her in front of the Intoxilyzer 5000.  The appellate court found no relevance between what the officer should have done and actually did.

MORAL-see Campbell's synopsis.
GMCD

Evidence 
Evans v State 246 Ga App 895 (Nov 27, 2000)
Evans contended that the State failed to show that 1) she was driving, and 2) the act actually occurred on the date as alleged. The court gave an 18-sentence opinion denying her relief.

MORAL- had Evans alleged an alibi perhaps she would have prevailed.
GMCD

 Evidence - Intoxilyzer 5000
Hunt v State 2000 WL 1724953 (Nov 21,2000)
Hunt was involved in a motor vehicle accident then fled on foot. At trial he argued that he could not blow a sufficient amount of air in to the breath testing machine to provide a reading.  Hunt testified on his own behalf that he suffered from Bells Palsy (a condition that will not allow deep lung air to be produced with sufficient force). Hunt did not present an expert and the court ruled that he was not competent to testify on this condition even though he suffered from it. Hunt also wanted to let the jury try to blow into the machine. The court said no. (JUST TRYING TO KEEP IT FAIR.)

MORAL- NOW the courts want an expert (see Stone & Campbell synopsis).
GMCD

IMPLIED CONSENT

Implied Consent
McCaffery v State 200 WL 33125112 (Jan 24, 2001)
Defendant was convicted of DUI (less safe) and now argues that the jury should not be told that he refused the state's test because he told the arresting officer an hour later that he would submit. Citing the criteria of Dept. Public Safety v Seay 206 Ga App 71 (1992), the appellate court ruled that waiting an hour to request an independent test was not timely even though the test would still be meaningful. However, the court reversed the case because the jury should have been allowed to hear evidence that McCaffery attempted to comply.

MORAL-depending on your circumstance and whether you are in the metro area if you want to change your mind and take the test do it within 50 minutes of the refusal.
GMCD

INTOXILYZER 5000

None Posted Yet

JURY ISSUES

Jury Selection 
Clark v State 246 Ga App 842
Clark complains that the trial court should have gotten rid of a juror who was a paying client of the solicitor because the juror might be partial towards the solicitor. You guessed it; the court found that the juror would be fair.

MORAL-yea right.
GMCD

MIRANDA

None Posted Yet

ROADBLOCKS

Roadblock 
State v Sherrill 2000 WL 331 37379 (Dec 14, 2000)
The trial court granted the defendants motion to suppress. YEA! The appellate court reversed. BOO! This was a roadblock that took place in Dekalb County.  The officers did not follow their own rules but following their written guidelines. The appellate court said it was close enough for government work (sound familiar?)

MORAL- do you really want to hear it.
GMCD

SEARCH

None Posted Yet

SENTENCING

Sentence Modification
Patel v. State, A00A2390; 2001 WL 92712 (Feb. 5, 2001)
Defendant was convicted of DUI, Reckless Driving, Following too Close, and Leaving the Scene of an Accident.  Defendant filed a motion to modify after the term of court in which his conviction occurred. The trial court, applying the general rule, said it could not modify since the motion to modify was untimely. The Court of Appeals vacated and remanded holding that, except for the DUI charge, the sentencing on the other misdemeanors could be modified "at any time" pursuant to OCGA § 17-10-3(b).
GMCD

SPEEDY TRIAL

None Posted Yet

DUE PROCESS

None Posted Yet

OTHER CASES

None Posted Yet

PROBATION

None Posted Yet

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