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Successful Defenses

.23 Blood Test – Weaving stop – State v. J.S.
Fulton County

Defendant was stopped in Fulton County after he was observed crossing the centerline, nearly causing a head-on collision with a truck. Field sobriety evaluations, including the horizontal gaze nystagmus (eye test), 9-step Walk & Turn, and One-Leg Stand tests were administered. The defendant was arrested and asked to submit to a blood test, which resulted in a .23 blood alcohol level. At a pretrial hearing, the State could not lay the foundation for the blood test to be admitted, and the results were excluded from evidence. At a bench trial, the prosecution failed to explain the meaning of the horizontal gaze nystagmus test and the judge was not persuaded that the remaining evidence proved that the defendant was guilty beyond a reasonable doubt. The defendant was found Not Guilty of DUI and Guilty of Failure to Maintain Lane.

 


 

.12 Blood Test – Two-Car Accident - State v. S.J.
DeKalb County

Defendant stuck a DeKalb County police car which had parked on the shoulder of the ramp from I-285 East to I-85 South. The officer was investigating a previous one-car wreck that occurred on the wet roadway. According to the officer, when asked why he hit the car, Defendant responded, “because I’ve had too much to drink.” Several officers became involved with the arrest of Defendant and he was asked to submit to a blood test, which resulted in a .12 blood alcohol level. At a pretrial motions hearing, the State failed to produce any officer to testify that Defendant was read his implied consent rights prior to taking the blood test. The judge excluded the blood test result from evidence. The jury acquitted Defendant of all charges.

 


 

Breath Refusal – Speeding stop – State v. S.A.
Gwinnett County

Defendant was stopped for speeding 72 in a 55 MPH zone. The officer testified that he smelled alcohol when he spoke to Defendant. Field sobriety evaluations, including the horizontal gaze nystagmus (eye test), 9-step Walk & Turn, and One-Leg Stand tests were administered. The defendant was arrested and asked to submit to a breath test. Defendant asked to speak with a lawyer before deciding whether to submit to the test. The arresting officer advised Defendant that he did not have the right to a lawyer at that time and Defendant “refused” to take the test. Defendant testified at trial that he would have taken the test if he had been able to speak with a lawyer to find out what his rights were. On questioning by the prosecutor, Defendant admitted he had four beers at a sports bar earlier that night. The jury found the Defendant Not Guilty of DUI and Guilty of Speeding.

 


 

Breath Refusal/Forced Blood Draw – Lane Violation – State v. C.A.
City of Atlanta

Defendant, a registered nurse, was stopped for a lane violation after watching a football game at a local sports bar.  She was asked to perform field sobriety tests and was arrested for DUI.  She refused to take the State’s breath test, and the police officer obtained a search warrant to draw her blood at the Fulton County jail.  The results were a .12.  The officer wrote his arrest report prior to the blood test being completed by the Georgia Bureau of Investigations Crime Lab.  In court, the prosecutor was unaware until the morning of trial that the blood test had been done.  During a pretrial conference, the police officer agreed not to oppose Defendant’s request to dismiss the DUI charge and let her plead guilty to Reckless Driving.  The prosecutor instead chose to reduce the charge to Failure to Maintain Lane so she would not have to re-file the accusation on a very busy court day.

 


 

Breath Refusal – 2-car Accident – State v. F.A.
City of Decatur

Defendant completed her lunch shift as a server at a popular local restaurant and stayed afterward to have a drink.  On her way home, it began to rain and she was unable to stop in time for a car in front of her waiting to turn left.  She explained to the officer that the odor of alcohol was from her job, and she expressed her concern about the occupants of the other vehicle rather than the officer’s requests to perform roadside sobriety tests.  The officer became frustrated with her and summarily arrested her when she began to ask questions about the breath test the officer demanded.  The charges were reduced to Reckless Driving prior to trial when the prosecutor observed the angry demeanor of the police officer at a pre-trial evidence hearing.

 


 

Breath Refusal – Hit & Run – State v. J.D.
Sandy Springs

The Sandy Springs police stopped defendant after a “Be On the Look Out” was dispatched for his SUV.  It was reported that he had struck several cars when leaving a shopping center parking lot in Dunwoody.  After he refused to submit to field sobriety tests, he was arrested and placed in the back of the patrol car.  On the video/audio tape of the arrest, the police officer could be heard calling his sergeant and expressing his concern about whether there was probable cause to arrest him.  We played that portion of the tape for the prosecutor and she agreed to dismiss the DUI.  Despite the Defendant having a prior DUI conviction, the State had too many problems with the probable cause issue.

 


 

.18 Breath Test – Single Car Accident – State v. R.K.
City of Atlanta

The Georgia State Patrol arrested R.K., who had been recently accepted to law school, after she struck a utility pole in the Virginia-Highlands neighborhood in Atlanta.  She did fairly well, but not perfect, on the roadside sobriety tests.  He physical appearance did not match the high breath test level, which created a “disconnect” defense to the DUI charge.  The courtroom prosecutor would not dismiss the DUI, so we scheduled a meeting with the head prosecutor.  He agreed to dismiss the DUI if the Defendant would spend a period of time under house arrest to demonstrate that this was not typical behavior on her part. Defendant completed the terms of her sentence and is now enrolled in law school.

 


 

.12 Breath Test – Fight Call – State v. R.L.
Cobb County

Defendant’s son was in a car with other high school classmates when he learned they were going to challenge another group of teenagers to a fight.  He called his father and his father agreed to meet him when they stopped and get him out of harm’s way, which would have threatened his college baseball scholarship.  Unfortunately, the police arrived before R.L. did and they began to question him about whether he had been drinking.  He was arrested after performing imperfectly on field sobriety tests.  At the police station he blew a .12 on the Intoxilyzer 5000 breath machine.  We scheduled a pre-trial meeting with the prosecutor to provide all relevant information and to ask them to consider a dismissal of the DUI given the circumstances.  We knew that this strategy might work because we had a good working relationship with the experienced prosecutor.  He agreed to reduce the charge after Defendant voluntarily agreed to undergo a professional alcohol evaluation, which showed he did not have a drinking problem.


J.B. was involved in a single car accident in Fulton County. She wrapped her car around a telephone poll after losing control while making a legal turn. When officers responded to the scene, they smelled the odor of an alcoholic beverage on her person and after taking her to the hospital, placed her under arrest for DUI. They surveyed the car and found four beers in the back seat, one of which was opened and empty. At the hospital, a sample of client’s blood revealed a .24, three times the legal limit in the State of Georgia. The case went to motions and the results of the blood test were suppressed by the Judge. The Judge then dismissed the case in its entirety for lack of probable cause for the arrest based on numerous procedural issues. Client avoided a conviction for DUI and kept a clean record.

 


State v. A.R.-Dekalb County-Refusal

A.R.  was pulled over for an expired tag in Dekalb County. When the officer approached the car, he smelled an odor of an alcoholic beverage and client admitted to drinking earlier in the night. The officer performed numerous field sobriety tests, all of which client failed according to the arresting officer. Client was placed under arrest and refused the state administered breath test. The case went to motions and the Judge suppressed the results of some of the Field Sobriety Tests as testimony on cross examination revealed the officer did not do them in accordance with his training. At a bench trial, the Judge found client not guilty of DUI.

 


 

State v. S.T. – City of Atlanta/Fulton County – .083 Breath Test

S.T. was pulled over for multiple driving offenses in City of Atlanta by a DUI Task Force Officer.  He was speeding, failed to maintain his lane, drove recklessly, and improperly changed his lane of travel.  He admitted to a few drinks and performed poorly on field sobriety tests.  He provided a breath sample of .083 which was admitted into evidence.  After numerous pre-trial motions, the State’s test was suppressed as the arresting officer did not accurately read implied consent.  The case went to trial on a DUI Less Safe charge and the jury acquitted client on all charges.

 


State v. R.W.- Cobb County – .10 Breath Test

R.W. was pulled over for failing to maintain her lane in Cobb County. She was asked to exit her vehicle and performed field sobriety tests.   After those tests, she was arrest and charged with DUI.  At the station, she had a long conversation with the officer and eventually decided to take the State Administered Breath Test, with a result of .10.  After a pretrial motion, the breath test allowed into evidence.   R.W. retained an expert on breath testing and the case was tried in front of a jury.  Based on her pre-existing Asthma and other medical issues, the jury felt the test was compromised.  They found her not guilty of the DUI.

 


State v. M.P. – Rockdale County – .15 Breath Test

M.P. was pulled over in Rockdale County for driving with no seat belt on.  The officer testified at a pre-trial motion that he noticed M.P. was operating his motor vehicle without the over the shoulder belt on.  Upon approaching the vehicle, M.P. unstrapped his lap belt, which he was in fact wearing.  The officer indicated he saw no such belt on at the time of the stop.  M.P. submitted to field sobriety tests and a breath test resulting in a sample of .15.  This was M.P.’s second DUI in a five year period.   During a pre-trial motion, M.P. testified his vehicle was not equipped with an over the shoulder belt, only a lap belt.  The officer testified that he did not have a clear sight of the vehicle and he was almost 50 yards behind M.P. when he saw the infraction.  The presiding Judge found in favor of M.P. and suppressed the entire stop, dismissing the DUI and the entire case.