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A Criminal Defense Law Firm

2011 DUI Case Law Update

DOUBLE JEOPARDY
Williams v. State, Ga. Ct. of Appeals, A11A1446 (09/08/11)
Facts: Williams Appeals from the denial of his Motion to Bar subsequent prosecution following mistrial, arguing that the prosecutor “goaded” him into joining the prosecutor’s motion for mistrial. The State made statements unsupported by the record in its closing arguments regarding Williams’ alcohol consumption. Williams initially opposed mistrial, instead requesting a limiting instruction that was denied by the trial court. After the Court’s ruling, Williams joined in the motion for mistrial.

Holding: Retrial is barred only when a mistrial is based upon intentional misconduct and upon prosecutorial conduct intended to terminate the trial . Here the misconduct was neither blatent, deliberate nor made in bad faith. Moreover, Williams own request for the mistrial bars his claim of double jeopardy.

DRIVING WITHOUT A LICENSE
Colotl v. State , A11A0997 (11/09/11)
Facts: Ms. Colotl (the now famous Kennesaw State University Student who has become a poster child for immigration reform) was stopped for impeding traffic in that she was apparently too persistent in searching out a parking space. After stopping her it was discovered that she did not have a Georgia Driver’s License. At trial, Ms. Colotl produced an “Instructional Learner’s Permit.” Colotl argued that the instructional permit satisfied the provisions of O.C.G.A. 40-5-121 which provide that “…if a person produces in court a valid driver’s license issued by this state to such person, he or she shall not be guilty of such offenses…”

Holding: Ignoring the fact that the statute doesn’t require it, the Court found that the license ultimately produced in Court must be valid for the type of driving which was occurring at the time of the citation. Thus a person driving a commercial vehicle would be required to produce a commercial driver’s license. As for Ms. Colotl, her learner’s permit was insufficient because she was driving unsupervised at the time of her initial stop.

DRIVING WITH SUSPENDED LICENSE
Sledge v. State, Ga. Ct. of Appeals (10/18/11)
Facts: Sledge was arrested for Driving with Suspended License and DUI. His license was suspended for refusing a State request for a blood alcohol test after having been arrested for DUI. He argued at trial that he was not notified of the suspension. The Officer’s trial testimony was that she served Sledge with Notice of License Suspension, but could not recall when or how she served him with notice. The 1205 Form was dated 5 days after Sledge was arrested.

Holding: Notice of suspension under OCGA 40-5-67.1(f)(1) and (2) requires personal notice and service of a 1205 form. If the officer doesn’t serve, then the Department of Driver Services may send notice via US mail. Despite the impossibility of the dates on the 1205 form and the Officer’s testimony that she forgot to serve Sledge on the date of his arrest, the Officer’s testimony that she served Sledge was sufficient under the “some” evidence. This apparently is a different standard from a “evidence sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt” I don’t understand this case.

EVIDENCE
Subpoenas / Material Witness / Source Code
Davenport v. State , Ga. Supreme Court (6/20/11); Yearly v. State, Ga. Supreme Court (6/20/11)

Facts: Davenport sought an Out of State Witness Subpoena for the Intox 5000 Source Code alleging that her asthma created an inaccurate Intox 5000 result. Only information from the software (source code) could answer the questions she presented regarding lung capacity and volume. Yearly’s identical request was denied on the ground that his subpoena was issued to a corporation, not an individual.

Holding: Citing the 6th Amendment Rt. to Confrontation, Justice Benham writing for the majority found that a request to a Corporation is perfectly fine (the Corporation can name its own witness) and that the Court of Appeals applied the wrong standard in determining whether Defendant met the burden under the Uniform Act to Secure Out of State Witness to show the sought after witness was a “material witness.” A “material witness” does not mean “necessary and material” as the Ga. Court of Appeals had previously held– that determination is for the corresponding State to determine. A “material witness” is one who can testify about matters having some logical connection with the consequential facts, especially if few others if any, know about these matters.” Reversed and Remanded to the Court of Appeals.

HARMLESS ERROR
Black v. State; A11A0242 (06/14/11)
Facts: Defendant, Eric Black appealed his convictions for DUI Less Safe and Per Se. The per se count was merged into the less safe count at sentencing. In addition to points of error for Discovery and Jury Instructions, Black alleged that an improper foundation had been laid for the intoxilyzer 5000 (.124/.127) and also that the Trial Court misread the allegation on the per se count during its charge to the jury.

Holding: Relying entirely on the merger of the per se count into the less safe count, the Court applied a harmless error analysis to the improper admission of the intox and the improper instruction on the charge to the jury: “In light of the merger, the DUI per se count is void and any error as to that count was harmless.” Note that the Court assumes the Intox results have no bearing on the less safe Count. Perhaps we should request an instruction based upon this decision that the Jury may not consider Intox results in their deliberations on the less safe count. This is an expansion of prior court cases and is a bad and dangerous precedent. Let’s make sure that our objections at trial are count specific. Wow, what next!!!

IMPLIED CONSENT WARNINGS
Request for Independent Test
Avery v. State, Ga. Ct. App. , A11A1340 (09/07/11)
Facts: After submitting to SFSTs Avery was arrested for DUI and read the implied consent warning. Arguing with the Officer about his level of intoxication, Avery said “Give me some more, like, tests. Like, please!” Avery argued that this statement was a request for independent test. He also testified under oath that he made additional requests at the jail for an independent tests.

Holding: Reaffirming the principles that the right to an independent chemical test is invoked by any statement that reasonably could be construed in light of the circumstances to be an expression of a desire for an additional, independent test, and that the implied consent warning does not specify to the accused any requirement for requesting an independent chemical test—linguistically, temporally, or otherwise, the Court held that this statement, evaluated under the circumstances was not a request for an independent test., but rather a request for further field sobriety tests. The Court did not address the factual dispute between the defendant and the officer regarding the additional requests.

Buford v. State, A11A1518 (11/04/11)
Facts: After flipping his car, Buford was flown via helicopter to Grady Hospital where he was taped to a backboard, and sedated. Suspecting DUI, the Trooper told trooper told Buford that he was going to charge him with DUI read implied consent to Buford. Buford was unresponsive. The trooper proceeded to take blood for state chemical testing. Buford argues that he had not been placed under arrest at the time of the implied consent warning.

Holding: The correct determination of “arrest” is whether, under the circumstances, a reasonable person would have felt that the detention would not be temporary. Here, the Court reasoned, having been told by the trooper that he was “going to charge him with DUI” Buford was under arrest. (Author’s note: It appears that Buford was totally unresponsive as a result of medications received at the Hospital so why should we assume he even heard the officer’s statements?)

JURISDICTION
Criddle v. State, Ga. Ct. of Appeals ((06/16/11)
Facts: Mr. Criddle, his truck and his driveway were located entirely within Cherokee County. But the back half of his truck was left hanging over the Holly Springs Municipality right-of –way after he got drunk and backed the truck up and over the edge of his driveway. Holly Springs Police Department responded to the call and arrested the Defendant.

Holding: The Jurisdiction of Municipal Police is limited to the Municipality (OCGA 17-4-23(a). Venue lies with both County and City when a crime occurs on a boundary line. If the evidence does not show the exact location of a boundary line, then the line may be established by tradition and circumstances. Trial court was thus authorized to find that the vehicle was in the jurisdiction of the Municipality.

JURY CHARGES
Presumption from Refusal
Wagner v. State, Ga. Ct. App., A11A0895 (09/07/11)
Facts: Wagner was arrested for DUI , read implied consent and refused to participate in State Testing. At trial the Court read in part the following instruction on the refusal: “…I further charge you that the refusal itself may be considered as positive evidence, creating an inference that the test would show the presence of alcohol or other prohibited substances which impair his driving….” Wagners’s trial counsel did not object to the charge.

Holding: The charge including the language “which impair his driving” was disapproved in Baird v. State (2003) because it created a presumption of guilt on the issue of impairment and thus shifted the burden from the State to the Defendant. Failure to state an objection to a jury charge is not a bar to appellate review when “a substantial error in the jury charge affects the burden of proof.”

MIRANDA
Arrest/ Miranda/Statements
State v. Padidham, Ga. Ct. Appeals, A11A0678 (07/13/11)
Facts: Trial Court granted Motion to Suppress, holding Padidham was in custody and should have been read Miranda prior to administration of Alcosensor Test. Padidham was stopped for speeding, admitted to using alcohol, smelled like alcohol, performed field sobriety tests and was then told by the officer that he thought he was too intoxicated to drive and then forced to get back in his car to wait for another officer to come to the scene to perform an alcosensor test.
Holding: The test for determining whether a person is “in custody” at a traffic stop is if a reasonable person in the suspect’s position whould have thought the detention would not be temporary.” A reasonable person in Padidham’s position would have concluded that his custody was merely temporary. Trial Court Reversed.

Miranda/Voluntary Statement
Frazier v. State, Ga. Ct. Appeals (07/12/11)
Facts: Frasier make a drunken and incriminating statement to police after being read his Miranda Warning. Because his requests to speak with an attorney were repeatedly ignored, the trial court excluded the statement, but ruled that Frasier’s statement could nevertheless be used for impeachment purposes if he chose to testify, which he then declined to do.
Holding: A statement obtained in violation of Miranda may not be used in the prosecution’s cas-in-chief. However, if the statement was made voluntarily and is deemed trustworthy, then the statement may be used for impeachment purposes. The State has the burden of proving voluntariness by a preponderance standard. All agreed that Frazier was intoxicated, but the arresting officer testified that Frazier ”appeared to know what was going on.” That was all the Court needed to sustain the Trial Court’s factual findings as the actual videotape was apparently lost in the appellate process, which the lays at the fault of the Appellant—so much for the State having the burden.

Custody / Miranda and FST / Jury Charges
Hale v. State, Ga. Ct. Appeals (06/30/11)
Facts: Hale was stopped on his motorcycle for improper passing. The Officer smelled alcohol and claimed that Hale “exhibited clues of impairment” on HGN, W/T and OLS. Hale admitted to consuming 2 drinks two hours earlier. Upon learning that he was to be arrested, Hale became “belligerent” and demanded a breath or blood test after learning that he was to be arrested. The State then administered Alcosensor and Intoxilyzer tests but declined Hale’s request for an independent test. The trial court admitted the Alcosensor overa Miranda objection and suppressed the Intoxilyzer test but neverthess said as much to the jury as a preliminary jury instruction.
Holding: Hale was under “arrest” when the Officer told Hale he was going to jail so Miranda was necessary. However, because Hale “demanded” a breath test, this evidence was not compelled as was more akin to a spontaneous utterance than a response to a question. The Court of Appeals applied a hamreless error standard to the trial court’s instruction to the Jury explaining that nature and basis of the suppressed evidence. The Court found the evidence was “overwhelming” and sustained the conviction. A good “custody” case as Hale was not handcuffed and in the car, but a terrible “overwhelming” evidence case. Seems pretty obvious that the evidence was far from overwhelming as cases with more evidence of intoxication have been dismissed on lack of PC.

PROBABLE CAUSE
Mayberry v. State, Ga. Ct. of Appeals, (1019/11)
Facts: The trial court denied Mayberry’s motion to suppress, finding that the officer had probable cause for the arrest. Mayberry was stopped after an officer observed her fail to maintain her lane on two occasions. He observed the smell of alcohol upon Mayberry and she registered “positive” for alcohol on an Alcosensor test. No field sobriety tests were performed and the officer did not observe any manifestations of impairmaent such as slurred speech or unsteadiness.

Holding: The Court deferred to the trial court, holding that the presence of alcohol and a traffic violation is sufficient to support a determination of probable cause.

ROADBLOCKS
Officer Participation in Roadblock / “Programmatic Level”
Owens v. State, March 10, 2011, Ga. Ct. of Appeals;
Jacobs v. State, February 28, 2011, Ga. Ct. Appeals
Facts: Owens On August 15, 2008 State Patrol Officers conducted a roadblock. The roadblock was initiated, authorized and supervised by Sergeant Johnson who was also the Post Commander and a patrol officer. Sergeant Johnson apparently submitted an application form authorizing the roadblock, but he authorized his own form.
Jacobs A patrol Captain (who worked entirely in the field and not behind a desk) initiated, authorized, supervised and actually screened the Defendant when he approached the roadblock. The Captain testified that she had general authority from her supervisors to initiate roadblocks.

Holding: An “authorized” supervising officer can initiate, supervise and participate in the same roadblock without violating the requirement that a roadblock be initiated on a “programmatic” level. These cases continue a trend that seem to authorize ad hoc roadblocks, perhaps taking Georgia law below U.S. Constitutional standards: “A central concern … has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, the Fourth Amendment requires…the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers .” Brown v. Texas, 443 U.S. 47, 51 (1979)

Supervisor Implementation
Shelly v. State, Ga. App. A11A2172 (11/14/11)
Facts: Shelly was stopped at a roadblock and arrested for DUI. The roadblock was approved by the Chief Deputy for the purpose checking driver sobriety and implemented by supervisory personnel. Shelly argued that this was insufficient to satisfy the requirement that the “decision to implement the roadblock was made by supervisory personnel for a proper primary purpose.”

Holding: The purpose of this first requirement is designed to prevent “roving patrols in which field officers exercise unfettered discretion to stop drivers in contravention of constitutional protections against unreasonable seizures.” Here, the testimony that the approval came from supervisors was sufficient to satisfy this requirement

Turning to evade the roadblock
Bacallao v. State, Jan 6, 2011, Ga. Ct. Appeals
Facts: As she approached a roadblock, Bocallao was observed turning left into a gas station. Observing the turn, officers went to the gas station and approached her as she was outside her vehicle. Bocallao gave the officer her driver’s license and the officer smelled alcohol. After completing field sobriety tests she was arrested for DUI.

Holding: The Court reaffirmed Jorgensen v. State, 207 Ga. App. 545 (1993) which held that turning into a business or residential community while approaching a roadblock is not in and of itself articulable suspicion to stop a vehicle. Nevertheless, the Court here here found that this was a “first tier” encounter not requiring any particular suspicion because the officer merely approached Bocallao as she was walking away from her vehicle.