Our Case Results

First Impression Legal Challenge in GA to Source Code of Intoxilyzer 5000

Hills v. State. Hills filed a motion for discovery of the “source code” used to program the Intoxilyzer 5000. The trial court denied the motion. Because admission of the source code has not previously been addressed by this Court, the GA Ct of APP granted Hills' request for interlocutory review. 291 Ga.App. 873, 663 S.E.2d 265

Trial Court sustained. The State of Georgia does not possess the source code for the Intoxilyzer 5000.

Brooks v. State, 285 Ga.App. 624, 647 S.E.2d 328

On December 18, 2005 at approximately 4:00 a.m., a police officer observed Brooks impeding the flow of traffic on I-285 by driving below the 40 mile per hour minimum speed limit. After stopping Brooks, the officer approached the vehicle, spoke with Brooks, and noticed a strong odor of alcoholic beverage. Brooks denied drinking. The officer had Brooks step out of the vehicle. He conducted field sobriety evaluations. He determined that Brooks' performance was “pitiful.” The officer placed Brooks under arrest and told Brooks he was being charged with DUI. Brooks immediately exclaimed, “No, please, can I get a blood test?” The officer then made his first attempt to read Brooks the implied consent notice. He was unable to successfully read the entire notice because Brooks constantly interrupted, attempting to convince the officer that he was not driving under the influence. The officer then read the implied consent notice another time. Again he was constantly interrupted by Brooks, who said he did not understand what was being read. Brooks finally took the breath test. The officer claimed that he asked Brooks if he wanted his independent test, and Brooks could not recall if that happened or not.

Because Brooks abandoned his right to an independent test, his breath test results were properly admitted by the trial court.

Fraser v. State 263 Ga.App. 764 (2003)

Established that defendant could not be sentenced for both reckless driving and speeding offense arising out of same conduct.

Sentence Reversed.

Keller v. State - Court of Appeals Overturned - Timeliness of Appeal

The Georgia Supreme Court concluded that when a multi-count indictment is the subject of one trial and the fact-finder returns a verdict of guilty on each count of the indictment, the case is not final and subject to appeal until a sentence has been entered on each count of the indictment. Because the Court of Appeals's dismissal of Keller's appeal is inconsistent with this rule, we reverse its judgment and remand the case to it for proceedings consistent with this opinion.

Won appeal that overturned Ct of App decision that Keller's appeal was untimely

Colon v. State, 256 Ga.App. 505 (2002)

Established involuntary intoxication as a defense in Georgia.

Conviction Reversed

White v. State, 233 Ga.App. 276 (1998)

Established right to jury instruction that a refusal of a state administered sobriety test does not infer intoxication.

Held harmless error.

Our Case Files

REAL ESTATE PROFESSIONAL ARRESTED FOR DUI WITH A BAC OF 0.23 AFTER AN ACCIDENT

Description: After an accident caused by our client was called into the police, a DUI officer was called to the scene to investigate. Our client, a real estate professional, took a breathalyzer test and the reading showed that his blood alcohol content was 0.23. Because having a clean record was important for his career, we took the case to court. On the day of the trial, the arresting officer failed to appear, resulting in a dismissal of the case.

Outcome: Case dismissed

ATTORNEY FACES DUI WITH BAC TWICE THE LEGAL LIMIT

Description: After being stopped for a lane violation in Roswell, GA, our client—an attorney—tested with a blood alcohol content of 0.16 on two different tests. We filed several motions, including a Motion to Suppress the breath evidence. During the pre-trial hearing, the judge discovered that the arresting officer opted to attend training rather than appear in the scheduled hearing, and decided to grant our Motion to Suppress. The prosecution failed to prove that the subpoena had been properly served to the officer, thereby weakening their case against our client.

Outcome: Case dismissed

CLIENT CHALLENGES ADMINISTRATIVE LICENSE SUSPENSION

Description: During an administrative license hearing, the officer who arrested our client for DUI claimed he stopped her vehicle because she was driving between 28-32 miles per hour. Our attorney pointed out that there was no minimum speed sign posted on the road, and the officer was unable to prove the posted speed limit on the road.

To further help our client’s case, we presented a video from the officer’s patrol car camera of the arrest. The officer got our client to admit to having wine that evening, and asked her to step out of the vehicle to perform field sobriety tests; despite the fact that our client advised the officer that she has epilepsy. We called a field sobriety test expert to testify on our client’s behalf. As a retired police officer and a field sobriety test trainer, our expert witness explained that the National Highway Traffic Safety Administration’s manuals on field sobriety tests clearly state individuals on medicine for epilepsy should not be asked to take tests, such as the horizontal gaze nystagmus—despite the arresting officer’s claim that our client was a proper candidate for it.

Outcome: Client’s full driving privileges were restored

LICENSED PROFESSIONAL FACES DUI WITH BAC MORE THAN THREE TIMES OVER LEGAL LIMIT

Description: Our client—a state-licensed professional—was arrested for drunk driving with a blood alcohol content of 0.275/0.285. Because she needed a clean record to keep her professional license, it was important that she fought her charges. After 16 months of fighting her case and more than 20 hours in pre-trial hearings, we stated we were ready for trial so we could begin appealing the pre-trial motion rulings. A trial date was set; however, the prosecutor called our office on the Friday before our Monday trial and offered to reduce our client’s charge to reckless driving. The prosecution had discovered that their expert witness was scheduled to be out of town during the trial, and knew they would have no case without him. Our client decided to accept the plea deal, as reckless driving doesn’t result in the license suspension, jail time, and other penalties associated with a DUI.

Outcome: DUI case reduced to reckless driving.

SALES MANAGER ARRESTED FOR DUI AFTER AWARD BANQUET

Description: After being honored as the top sales manager at his company, our client was pulled over in Dunwoody because the officer states he changed lanes into her lane. While on the side of I-85, our client scored high marks on the field sobriety tests, despite the traffic and hazardous conditions. Our client was still arrested for drunk driving and asked to take a breathalyzer test, resulting in readings of 0.202 and 0.212.

Because his job was at stake, our client called our firm to fight his DUI. The prosecution refused to negotiate a plea deal, so we took our case before a jury. To combat our client’s test results, we called an expert witness to testify on his defense. The witness explained the problems with the Intoxilyzer 5000, arguing that our client’s dental work, diabetes and high-protein diet may have skewed the results. In addition, our client’s coworker testified that alcohol at the banquet was strictly controlled, and that our client gave a flawless acceptance speech not long before his arrest.

Outcome: “Not Guilty” verdict for both impaired driving and per-se DUI charges

STOP FOR SPEEDING RESULTS IN DRUNK-DRIVING ARREST

Description: Our client—a New York resident—was pulled over for speeding by an officer in the DeKalb County STAR team (a DUI task force). After our client politely declined to take the field sobriety tests, the officer stated that he would be placed under arrest for drunk driving—causing our client to eventually agree to the tests. Our client performed poorly on the tests, and was taken to the police station where he blew 0.105 on the breathalyzer.

During a pre-trial motion hearing, we cross examined the officer in an attempt to have the field sobriety tests excluded from the evidence at trial. Because field sobriety tests are supposed to be voluntary, we argued that the tests were compelled. We then initiated negotiations with the prosecution to have the drunk-driving charge dropped and reduced.

Outcome: DUI reduced to Reckless Driving

CLIENT FIGHTS DUI AFTER BLOWING .122 ON INTOXILYZER 5000

Description: While in Atlanta for business, our client made an illegal U-turn and was stopped by a State Patrol officer on the DUI task force. The officer stated that our client failed the field sobriety tests and brought him back to the station, where our client tested with a blood alcohol content of 0.16 on the Intoxilyzer 5000.

Our client’s career was on the line, so he hired our firm to fight his DUI. Because the prosecution refused to reduce the charge, we took the case to a jury. During the officer’s testimony, we pointed out several inconsistencies with his testimony at the administrative license suspension hearing. We also pointed out his lack of knowledge on the breathalyzer tests and introduced video evidence showing that our client did not perform poorly on the sobriety tests.

Outcome: Not guilty verdict returned by the jury in only eight minutes

DUI ACCIDENT INVOLVING A POLICE CAR

Description: Our client—a cardiologist—was driving his Porsche on Northside Drive, when he was T-boned by an officer’s patrol car. Smelling alcohol on his breath and noticing bloodshot eyes, the officers on the scene decided to administer all three field sobriety tests, which our client failed. Our client was then brought to Grady Hospital for treatment.

While the officer claimed that our client was highly intoxicated, there was no video or audio of the traffic stop. Our client also refused the breathalyzer test. To show that our client was not intoxicated at the time, we called the emergency room doctor and nurse who treated our client to testify. They both stated that he was sober when he presented to their care within an hour of the accident.

Outcome: Not guilty of DUI, Reckless Driving, and Running a Red Light

DUI ACCIDENT AND BREATHALYZER REFUSAL

Description: Our client rear ended the vehicle in front of him while turning, and a witness called 911 to report the event. When the officer arrived on the scene, our client explained that he was on his cell phone, which resulted in the accident. The office gave our client a portable alco-sensor and administered the walk-and-turn test, which the officer claimed our client failed. After being transported to the police station, our client refused to take the evidentiary breath test.

We took our client’s case to court, where the witness who made the 911 call—along with two other eyewitnesses—claimed to see our client throwing beer out of the car window. In the end, our client was acquitted of drunk driving, but found guilty of having an open container and reckless driving.

Outcome: Not Guilty of DUI

CLIENT FOUND PASSED OUT ON WRONG SIDE OF THE ROAD

Description: After celebrating her birthday, our client was found facing the wrong way on the wrong side of the road with the engine running by a passerby. When she was finally roused by the police, the officers found that she was extremely drunk and incoherent.

Our client was very adamant that she had not been driving, despite all appearances to the contrary. In addition, her husband testified that he was the driver and that he left our client there after an argument.

Outcome: Not Guilty on all counts

CLIENT CHARGED WITH DRUNK DRIVING AFTER BLOWING A 0.18

Description: Our client was stopped on suspicion of drunk driving and transported to the police station, where he blew a 0.18 into the Intoxilyzer 5000. Despite this, the charges were reduced due to evidentiary reasons, which allowed our client to avoid the more serious penalties associated with a DUI conviction.

Outcome: DUI reduced to Reckless Driving

LACK OF PROBABLE CAUSE IN A DUI CASE

Description: After failing to maintain his lane, our client was pulled over and subsequently charged with DUI after testing over the legal limit. We filed several motions, including a motion to suppress the breath test results and a motion to challenge the less safe case, based on lack of probable cause. Both motions were granted.

Outcome: DUI reduced to Failure to Maintain Lane

CLIENT CHARGED WITH SPEEDING AND A DUI WITH 0.125 BREATHALYZER TEST

Description: After being stopped for speeding, our client was transported to the police station, where he tested with a 0.125 blood alcohol content. During a motions hearing, our attorney was granted a motion to suppress the field sobriety tests administered by the officer on the grounds that the officer failed to properly qualify our client and did not adhere to the NHTSA training. In addition, our attorney was able to exclude the breathalyzer reading, arguing that the arresting officer improperly coerced our client into submitting to the breath test.

Outcome: DUI reduced to Speeding

CLIENT CHARGED WITH DRIVING UNDER THE INFLUENCE OF MARIJUANA

Description: Our client was traveling on I-575, when he was followed by an off-duty officer for miles after the officer claimed our client almost hit another vehicle. When our client stopped at a gas station, the officer also pulled over and hid from his view before following our client again. The officer then stopped our client for failing to maintain lane and claimed he found marijuana on his person.

Using his background as an officer and his extensive training, our attorney was able to show inconsistencies with the arresting officer’s administration of the field sobriety tests.

Outcome: DUI Marijuana reduced to Reckless Driving; Possession of Marijuana charge conditionally discharged

CLIENT CHARGED WITH DUI AFTER THREE-CAR CRASH ON SUPER BOWL SUNDAY

Description: While coming home from an adult establishment on the night of Super Bowl Sunday 2011, our client rear-ended another vehicle, causing that vehicle to strike a third car. Our client was subsequently arrested for drunk driving and blew a 0.169 on the breathalyzer test.

We failed a motion to suppress the breath test, based on the fact that our client’s right to an independent test was not upheld by the arresting officer. At the jury trial, we argued that the signs of intoxication may have been caused by the impact of the air bag during the collision.

Outcome: Not Guilty verdict

BLOOD TEST SHOWS PRESENCE OF CANNABINOIDS AND THC METABOLITES

Description: After going through a DUI roadblock, our client was arrested for DUI and asked to take a blood test, despite the fact that he did not demonstrate impaired driving. His blood test was positive for cannabinoids as well as THC metabolites.

At the motions hearing, we locked the arresting officer into his testimony. When he testified at trial, we showed that the officer modified what he had said at the hearing. In addition, we brought in a DUI expert and analytical chemist to testify on our client’s behalf.

Outcome: Not guilty of DUI-Drugs

CLIENT CHARGED WITH DUI AFTER ACCIDENT WITH PARKED VEHICLE

Description: Officers were called to the scene after a collision between our client’s vehicle and a parked car to determine the cause of the accident. Two empty bottles of alcohol were found in our client’s vehicle, and—despite the fact that the officers asked very few questions and did not administer any field sobriety tests—our client was taken to the police station, where he tested 0.202 and 0.214 on the breathalyzer.

The trial date was rescheduled from October 2008 to December 2008, and the arresting officer was not present at the new date. Because the officer was not present, and the breath tests were being excluded at trial due to questions surrounding the timing of the implied consent warning, the charges were dropped.

Outcome: DUI case dismissed

DUI CASE INVOLVING AN AUTOMOBILE ACCIDENT

Description: After being involved in an accident in Cherokee County, our client was arrested and charged with driving under the influence. From the moment our client came into our office, she maintained her innocence. We discovered at trial that the arresting officer’s DUI investigation was lacking, and that almost an hour passed between when the officer arrived on the scene and the field sobriety tests were requested.

Outcome: Not Guilty on all charges

LACK OF PROBABLE CAUSE IN DUI-ALCOHOL-LESS SAFE CASE

Description: Our client was arrested for alcohol less safe in Fulton County. When we were unable to negotiate a plea deal, we decided to request a bench trial with our motions to be heard simultaneously. The prosecution was unable to establish probable cause for the drunk-driving arrest, and we filed a motion to suppress all evidence obtained, which was granted by the judge.

Outcome: All charges dismissed

DUI/HIT AND RUN INVOLVING POLICE PURSUIT

Description: After local police noticed our client failing to maintain lane and driving without headlights, they attempted to pull her over. Our client led them on a low-speed chase. Once she finally pulled over, the police noticed signs of a collision, including the deployment of the vehicle’s air bags, and saw that our client had broken her arm and sustained facial injuries. They also saw that her headlights were not on because they had been broken by the impact. She was charged with running two red lights, failure to maintain lane, leaving the scene of an accident, and DUI.

Our attorney challenged the client’s blood test, arguing that the implied consent warning had not been read in a timely manner and that the police investigation was improperly handled. Based on these facts, the prosecution decided to negotiate a plea deal.

Outcome: Charges reduced to Reckless Driving