OTHER DUI/DWI RESOURCES

Drunk Driving Cases
Attorney William C. Head

Case 1
State v. D.K.
Dekalb State Court
Decatur, Georgia

Defendant and his brother wrapped up a July 4th outing and night of fun by dropping off three other friends and then driving 88 mph through northern Dekalb County. A state trooper saw the car, gave chase at speeds topping 110 mph, and obtained a Vascar reading of 88.5 mph. After beginning to ticket Defendant, the officer testified that he noticed the smell of an alcoholic beverage, and "asked the Defendant if he would consent to some voluntary field tests". At pre-trial motions hearings, I had questioned the officer about the field sobriety tests and the "time" between the arrest and the testing on the Intoximeter 3000. The officer testified under oath at both the motion hearing and at trial that he had waited at the Doraville police station for 20 minutes before testing Defendant. He testified that if he had not done that, his breath test result would not be reliable. (Defendant later testified that he was walked straight in to the Doraville station and placed at the machine with no observation period.)

We subpoenaed the tow truck records to show that the arresting officer's version was impossible, since the trooper had also sworn that he waited for the tow truck to leave the scene before transporting Defendant. Indeed, the tow truck records showed the officer's signature authorizing the tow of the vehicle. Defendant's brother (who had been a passenger) also testified that the trooper stayed until the car was towed. The arresting officer also testified that it took 8 to 10 minutes to get to Doraville PD from the arrest site on Peachtree Industrial just outside I-285. A test result of 0.11% was obtained by the arresting officer, who was a certified Intox 3000 operator. The officer testified that he had given correct implied consent advisements, despite the Defendant's testimony that no card was read to him at the scene at all.

To create reasonable doubt about the reliability of the 0.11% result, we subpoenaed Georgia State Trooper TFC Jack Denny of the Calhoun, GA post. Denny was one of three area (North Georgia) supervisors for the Intoximeter 3000. He trained officers on breath testing protocol and procedure. He serviced and maintained breath machines for the GBI. He testified that due to the lack of 20 minutes of direct observation, that the test result was unreliable. He also stated that the "observation" procedure followed by the arresting officer violated training for breath testing operators. Rick Swope, of Davie, FL, who is certified on the Intox 3000 and the Intoxilyzer 5000 confirmed that the waiting period was absolutely essential to obtain reliable breath test results.

We also benefited from impeachment created by the officer testifying at the motion hearing 18 days earlier that he turned the Defendant away from oncoming lights and the blue strobes to do the HGN test. At trial he changed this, and under cross-examination, admitted that he had testified falsely under oath.

To add credibility to the defense version of the facts, we brought in three fact witnesses who testified (1) that Defendant had consumed very little alcohol, and none at all for more than three hours prior to the stop, (2) that Defendant had suffered from and been medically treated for gastric problems, and that he took prescribed medication for the stomach malady, and (3) that the Defendant had driven more than 70 miles around Atlanta, without incident and without speeding, prior to the 88 in a 55 that got him pulled over.

To bolster the Defendant's personal credibility, we brought in two respected businessmen who knew Defendant's reputation for truthfulness in the community. These character witnesses were pillars of the community. Although brief, their testimony established Defendant as a truthful person, compared to the trooper, who testified forcefully and without flinching, even when he was lying under oath.

The coup de grace came from the subpoenaed Doraville video surveillance cameras within the jail and outside the building, in the parking lot. This showed the trooper driving up to the building, taking the Defendant out immediately and walking straight to the Intoximeter 3000, where the test was administered less than 4 minutes after arriving.

Defendant was found "not guilty" of both the per se and the "less safe" DUI counts. We had not challenged the speeding citation.

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