America's Drunk Driving Defense Attorneys ™

THIRTY DUI CASES FROM OTHER JURISDICTIONS THAT
  WILL HELP YOU WIN GEORGIA DUI CASES

LAW  OFFICE OF
ALLEN M. TRAPP, JR., P.C.
Telephone: (770) 830-8560
Fax: (770) 830-8565

Street Address:
114B Corporate Drive
Carrollton, Ga. 30117

Website: www.topgun-lawyer.com
E-mail: amtjr@iscope.com

ii.  ISSUE: REASONABLE, ARTICULABLE SUSPICION FOR THE DUI STOP

1. Rowe v. State, 363 Md. 424, 769 A. 2d 879 (2001).

2. Frasier v. Driver and Motor Vehicle Services Branch (DMV), 271 Ore. App. 215           (2001).

3. United States v. Gregory, 79 F. 3d 973 (10th Cir. 1996).

4. Crooks v. State, 710 So. 2d 1041 (Fla. App. 1998).

5. State v. Caron, 534 A. 2d 978 (Maine 1987).

6. United States v. Chanthasouxat, 342 F. 3d 1271 (11th Cir. 2003).

7. State v. Puckett, No. E2002-01959-CCA-R3-CD (Tenn. Crim. App. decided July 9,
     2003).

 We all know that weaving within a lane, although not an offense, can justify a stop.  Smith v. State, 236 Ga. App. 548 (1999).  However, as in Smith the Court of Appeals has consistently characterized the kind of driving that warrants a brief investigative detention as "erratic."  E.g., Davis v. State, 236 Ga. App. 32 (1999); Arsenault v. State, 257 Ga. App. 456 (2002).  Somewhat more elusive is a definition of weaving in the Georgia case law, but "...a continuous failure on the part of the driver to maintain a direct line of travel within his lane", State v. Bailey, 51 Ore. App. 173, 624 P. 2d 663 (1981),  should suffice.

 The failure to maintain lane statute, O.C.G.A. 40-6-48, has counterparts in every state, and every statute employs identical or nearly identical language.  One of the most recent decisions that reviewed a plethora of case law is Rowe v. State, 363 Md. 424, 769 A. 2d 879 (2001).  In that case the arresting officer noticed the Appellant's van cross the "white edge line" by about eight inches, return to the slow lane of I-95, and later touch the white line again.  In reversing the Appellant's conviction for a drug offense, the Court held that more than the integrity of lane markings, the purpose of the statute is to promote safety on laned roadways.  Id.  In other words, the statute is not violated unless a vehicle fails to stay within its lane and such movement is not safe or not made safely.

 As the Rowe court noted, the cases in which courts have upheld traffic stops based on violations of this statute involve conduct much more egregious than that in the instant case.  Specifically, they distinguished Sledge v. State, 239 Ga. App. 301 (1999) (trying to change lanes without signaling, straddling middle and slow lanes, straddling middle and left lanes); Maddox v. State, 227 Ga. App. 602 (1997) (weaving across lanes

      1
      
of traffic onto the shoulder); State v. Holcomb, 219 Ga. App. 231 (1995) (weaving from shoulder of roadway to left lane).  Other courts have interpreted language identical to that in the Georgia statute as requiring more for a violation than a momentary crossing or touching of an edge or lane line.  Frasier v. Driver and Motor Vehicle Services Branch (DMV), 172 Ore. App. 215 (2001).

 Maryland and Oregon are not alone.  In interpreting Utah's counterpart to O.C.G.A. 40-6-48, the Tenth Circuit Court of Appeals held that an isolated incident of a vehicle crossing two feet into the emergency lane on an interstate highway was not a violation.  United States v. Gregory, 79 F. 3d 973 (10th Cir. 1996).  Similarly, it has been held that, "Where a vehicle is driven on a roadway with no other traffic present, there was no speeding, erratic driving or other conduct, except for the edge line incident, to indicate that appellee was impaired, the balance is in favor of the right of privacy and against the need for a stop."  State v. Gullett, 78 Ohio App. 3d 138, 604 N.E. 2d 176 (1992) (crossing the edge line twice).  Time and again, appellate courts have held that touching or going over a fog line or edge line does not justify a stop unless the driver is operating the vehicle erratically.  E.g., State v. Lafferty, 291 Mont. 157, 967 P. 2d 363 (1998).

 In many cases the arresting officer will concede that a defendant did not drive his car off the roadway, only drove on the fog line, and did not come close to striking another vehicle, an individual, or anything else.  These facts are strikingly similar to Crooks v. State, 710 So. 2d 1041 (Fla. App. 1998), wherein the court held that even if the driver was briefly outside the margin of error, there was no objective evidence suggesting that he failed to ascertain that his movements could be made safely.  Id. At 1043.  The Crooks court also observed that a violation does not occur in isolation, but requires evidence that the driver's conduct created a reasonable safety concern.  Id.  Once again, although weaving within a lane of traffic can justify a traffic stop, there must be something more than merely touching or even going over a fog line; there must be evidence of erratic or unsafe operation of the motor vehicle.  State v. Cerny, 28 S.W. 3d 796 (Tex. App. 2000); State v. Tarvin, 972 S.W. 2d 910 (Tex. App. 1998).

 Perhaps no court has gone further than holding, "A vehicle's brief, one time straddling of the center line of an undivided highway is a common occurrence and, in the absence of oncoming or passing traffic, without erratic operation or other unusual circumstances, does not justify an intrusive stop by a police officer."  State v. Caron, 534 A. 2d 978 (Maine 1987) (straddled the center line for 25 to 50 yards).  Perhaps you can suggest to your judge that you are not asking him/her to "push the envelope like your judicial brethren in Maine" but to afford the statute a common sense interpretation and limit police intrusion to those cases involving erratic driving, which means more than merely touching a fog line under circumstances that offer no hint of  danger to the safety of others or their property.

      2.

 What about the officer's good faith belief that a statute has been violated? Although an officer's reasonable mistake of fact may provide the objective grounds for reasonable suspicion or probable cause required to justify a traffic stop, an officer's mistake of law may not.  United States v. Chanthasouxat, 342 F. 3d 1271 (11th Cir. 2003).  The officer's mistake of law cannot provide the objective grounds for reasonable suspicion or probable cause required to justify a traffic stop.  United States v. Lopez-Soto, 205 F. 3d 1101 (9th Cir. 2000); United States v. Lopez-Valdez, 178 F. 3d 282 (5th Cir. 1999).

 These Federal decisions are not inconsistent with the pronouncements of the Georgia Court of Appeals.  State v. Armstrong, 223 Ga. App. 350 (1996), shed light on the mistaken interpretation of the "Laying Drags" statute.  In that case the driver was spinning his tires and creating smoke in a crowded parking lot during the Christmas shopping season, thereby causing the officer to be concerned for the safety of pedestrians.  Id. at 350.  The key element of danger to the public overcame the Defendant's argument that the stop was unlawful since no statute had been violated.  In the typical "failure to maintain lane" case there will be no similar legitimate concern for the safety of others.

 In the Interest of B.C.G., 235 Ga. App. 1 (1998) makes it clear that when "...a statute upon which an officer bases his stop is later determined to have not been violated, the stop still must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct."  Id. at 5.  Missing in most cases of touching the fog line, according to this analysis, is the element of danger to the public or anything that would indicate your client was about to violate the law in any manner.

 Sooner or later our appellate courts will grapple with the issue of just how bad a person's driving must be in order to justify a traffic stop.  To date the reported cases involve "erratic" driving, but in my practice I am constantly confronted with cases where the client's driving is as good as the cop's on the way to the station the night of the arrest, the judge on the way to court in the morning, or your mother on her way to church on Sunday.  The only difference is that my clients are followed (many times for mile after mile) from a bar and, therefore, touching a fog line is an excuse for stopping them.  Use these non-Georgia cases, and good judges will from time to time find the police lacked the requisite articulable suspicion to detain your client.

 Before we leave this subject, I want to bring to your attention one of my favorite cases from the past year, State v. Puckett, No. E2002-01959-CCA-R3-CD (Tenn. Crim. App. decided July 9, 2003).  In this case the appellate court reviewed a videotape and disagreed with the arresting officer's characterization of the appellant's driving.  The court observed that the defendant's vehicle touched the right white line and eventually either crossed or touched the left white line.  Not only was her less than perfect driving insufficient to justify a stop, but the court explicitly rejected the State's argument that Fourth Amendment requirements should be relaxed in DUI cases.  As the majority wrote, "This court simply cannot apply a different standard in reviewing the requirements for a
      3.
 traffic stop for a DUI investigation than we would apply in reviewing any other traffic stop.  The constitutional standards are not lessened, nor does the governmental officer have broader authority, because the stop is for a DUI investigation."

  ISSUE: PROBABLE CAUSE FOR THE DUI ARREST

8. State v. Taylor, 3 Ohio App. 3d 197 (1981).

9. Saucier v. State, 869 P. 2d 483 (Ak. App. 1994).

10. People v. Royball, 655 P. 2d 410 (Colo. 1982).

11. State v. Swanson, 164 Wis. 2d 437 (1991).

 With the exception of State v. Batty, 259 Ga. App. 431 (2003), we do not have much in the way of good case law in Georgia.  Bad facts make bad law, so perhaps we should not be surprised the Court of Appeals has held that driving over 100 miles per hour coupled with bloodshot and glassy eyes, the odor of an alcoholic beverage, and a positive result on the Alco-Sensor constituted probable cause for an arrest.  See State v. Sledge, 264 Ga. App. 612 (2003).  But, it gets worse.  "Even in the absence of the field sobriety tests, the officer's observation that a suspect had bloodshot, watery eyes and exuded an odor of alcohol was sufficient to show probable cause to arrest him for driving under the influence."  Cann-Hanson v. State, 223 Ga. App. 690 (1996).
Observation: So why do we even need field sobriety tests?

 Is there any way around this obstacle erected by the Court of Appeals?  First, note that in both of the decisions cited in the preceding paragraph the defendants had "bloodshot" and "glassy" eyes.  If that testimony was true, the defendants may well have been less safe drivers, but the bloodshot eyes allegedly observed by many police officers are not caused by ethanol ingestion but allergies, fatigue, smoky bars, or the pollen season.  There is a difference between eyes that appear to be a bit bloodshot and the glassy eyes of a drunk.  So, how do you minimize the importance of bloodshot eyes?  Let's see if NHTSA's own studies can offer any assistance.

 Appendix E of the NHTSA study (Sept. 1997, DOT HS 808 654) "The Detection of DWI at BACs Below 0.10" concludes with the following observation:  "Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and
      4.
 people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors."
 Some officers who pride themselves on their expertise will admit that they are familiar with this study.  If your client's "bad driving" was de minimus and he or she declines field sobriety testing (which is becoming more common in my practice) as well as the Alco-Sensor (also becoming more common), what is the officer left with in many cases but the odor of alcohol?  While there may be a paucity of Georgia case law on the subject, our sister states have an abundance.  Before turning to that out-of-state case law, let us review the standard for determining probable cause for a DUI arrest in Georgia.
 
 The probable cause necessary for an arrest for driving under the influence was set forth in the case of Griggs v. State, 167 Ga. App. 582 (1983) which states as follows:

"As to the question of whether the arrest of defendant, for the offense of driving under the influence, was made with probable cause, we turn to the standards set forth in Beck v. Ohio, 379 U.S. 89,91 (85 SC 223, 13 LE2d 142).  See also Vaughn v. State, 247 Ga. 136, 137 (274 SE2d 479).  Whether the arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.  Beck v. Ohio, 379 U.S. 89, 91, supra.  The question is whether the investigating deputy at the time of defendant's arrest had knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely."  (Emphasis added).
 
The standard for probable cause remains whether the officer had knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle while under the influence of alcohol to a degree which renders him incapable of driving safely.  Malone v. State, 261 Ga. App. 420 (2003).  Therefore, it can surely be argued that the odor of alcohol standing alone does not provide probable cause to believe that an individual is incapable of driving safely.

Drinking and driving is not illegal in Georgia.  This is specifically recognized in the pattern jury instruction which takes into account a defendant's manner of driving, and which states, "merely showing that the defendant has been drinking, without proof of the defendant's driving or manner of driving is not sufficient."  Suggested Pattern Jury Instructions, Volume II, Court of Superior Court Judges, Part 4, (S)(2)(f). Since Georgia does not prohibit driving an automobile after consuming                                                                    5.
intoxicants, the odor of alcohol cannot reasonably and objectively provide probable cause  to believe that the driver is under the influence of alcohol.  This is especially true in the  case where the officer does not testify to any manifestations (other than odor) commonly associated with intoxication.  To conclude otherwise is to hold that conduct which is totally lawful is, without more, evidence of an offense sufficient to warrant arrest.  Were this true, then "zero tolerance" would be the standard necessary to arrest rather than the standard of "under the influence to the extent that the defendant was a less safe driver."      There is no correlation whatsoever between the odor of alcohol on a person's breath and their blood alcohol level. 

 The Georgia courts have never directly answered the question of whether the odor of alcohol provides sufficient probable cause for an arrest for DUI.  In Clay v. State 193 Ga. App. 379 (1989), however, the Georgia Court of Appeals (in reversing the defendant's conviction) stated in dicta that:    
"... the mere fact that he (the defendant) had an odor of alcohol on his breath clearly was not sufficient, in and of itself, to give rise to an inference that he was intoxicated.  Indeed the state's attorney conceded as much at trial, stating,  "Certainly the smell of alcohol by itself is not an indication, but it can be an indication that somebody had been drinking..."  Under the circumstances, we must conclude that the officer's opinion that the appellant was under the influence of alcohol to the extent that it was less safe for him to drive was without evidentiary foundation."

While Georgia has not directly decided this issue, it has been addressed by a number of other appellate courts.  Beginning with State v. Taylor, 3 Ohio App. 3d. 197,198 (1981), Ohio has a long line of cases specifically stating that the odor of alcohol (even when combined with other factors) does not provide probable cause to make an arrest.  In one of the more recent cases, State v. Segi, No.18267 (Ohio App. District 2), dated August 18, 2000, the arresting officer testified that the defendant Segi was arrested because he crossed the white line edge marker three times, he admitted to consuming alcohol, and had a "strong odor" of alcohol about him.  Reversing the trial court's denial of Segi's motion to suppress, the Ohio Court of Appeals stated,
"Odor of an alcoholic beverage is insufficient, by itself, to trigger a reasonable suspicion of DUI, and nominal traffic violations, being common to virtually every driver, add nothing of significance...    The law prohibits drunken driving, not driving after a drink...  Smelling too drunk to drive, without other reliable indicia of intoxication is not enough to constitute probable cause to arrest."

The Court of Appeals of Alaska has summarized its position succinctly:
"The mere odor of alcohol about a driver's person.... maybe indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony."  Saucier v. State, 869 P. 2d 483 (Ak. App. 1994).

Wyoming likewise has differentiated between drinking and driving and drunken driving.  In Keehn v. Town of Torrington, 834 P. 2nd 112 (Wyo. 1992), the Wyoming Supreme Court stated:
"A third legal reality worth noting is that it is lawful in Wyoming as in other states,  to drink and drive safely.  Wyo. Stat. §31-5-233 (June, 1989).  A peace officer may not arrest an individual for DWUI merely because it is late at night and, during an unrelated traffic stop, the officer detects the odor of alcohol.  Rather the peace officer must have probable cause to believe the individual has actual physical control of a motorized vehicle while legally intoxicated."

Colorado has also applied this analysis even to cases which have involved motor vehicle collisions.  In affirming the trial court's suppression of the blood test based on lack of probable cause for arrest, the Colorado Supreme Court in People v. Royball, 655 P. 2d 410 (Colo. 1982), recites that:
"All we learned from the record is that an accident took place, the defendant was driving one of the cars involved, and he an odor of alcoholic beverage about him.  Although the officer's testimony and his decision to administer a blood alcohol test are suggestive of an opinion that the defendant was under the influence of alcohol, the single objective fact to which he testified in support of any such conclusion is the odor of alcoholic beverage.  An odor of alcoholic beverage is not inconsistent with the ability to operate a motor vehicle in compliance with the Colorado law."
(Note: The Court also specifically states that, "the prosecution has cited no case in which an odor of alcoholic beverage, without more, has been held to constitute probable cause to believe a person is under the influence of intoxicating liquor."  There also exists no such case in Georgia).

Wisconsin recently affirmed a long line of cases beginning with State v. Swanson, 164 Wis. 2d 437 (1991), that held that the odor of alcohol, even when combined with other indicia of intoxication, "may add up to a reasonable suspicion, but not probable cause."  State v. Hanson, 233 Wis 2d 89 (Wis. App. 2000).  Both Louisiana and Washington, in reversing their respective trial courts, have held that even in cases involving traffic fatalities, "the mere fact that a person consumed alcohol prior to a vehicular accident does not prove that the person was under the influence or that alcohol consumption caused the accident."  State v. Garrett, 525 So. 2d 1235 (La. App. 1st Cir. 1988) and State v. Gillenwater 96 Wn. App. 667, (1999).  As you can see, there is a plethora of case law from around the country holding that the odor of alcohol does not provide probable cause for a DUI arrest.

 7.  ISSUE: PROBABLE CAUSE FOR A DUI DRUNK DRIVING BLOOD TEST  
    ON AN UNCONSCIOUS PERSON

;
12. State v. Kliphouse, 771 So. 2d 16 (Fla. App. 2000). 13. Schmerber v. California, 384 U.S. 757 (1966).

On October 6, 2003, the Georgia Supreme Court held that O.C.G.A. 40-5-55 was unconstitutional to the extent that it required chemical testing of the driver of a vehicle involved in a traffic accident resulting in serious injuries or death regardless of any determination of probable cause.  Cooper v. State, 277 Ga. 282 (2003).  But what is the standard for determining if probable cause exists to obtain a blood test of a driver rendered unconscious in an accident. 

State v. Kliphouse, 771 So. 2d 16 (Fla. App. 2000) provides some guidance.  In that case the appellee was driving a motorcycle when he was struck by a car and rendered unconscious.  A police officer arrived at the scene and smelled alcohol on the appellee's breath.  While he was still unconscious the officer requested medical personnel to draw a blood sample at the hospital.  The issue, as framed by the court, was: Does the mere odor of alcohol on the breath of a driver, who was involved in an accident not in any way attributable to said driver, without other indicia of impairment, give an officer reasonable cause to believe that the driver was under the influence of alcohol...?"
The court noted that, "As the trial court observed, the presence of an odor of alcohol alone is generally not considered an accurate and reliable measure of impairment and, thus, is rarely deemed sufficient for a finding of probable cause."  Id. At 23.  In other words, if a driver was not responsible for an accident and is rendered unconscious by injuries sustained in the accident, the odor of alcohol alone not will justify a search of his blood by the state.

This situation is distinguishable from a case where a motorist drives his car off the roadway, strikes a tree, smells of liquor, and the condition of his eyes is "bloodshot, watery, sort of a glassy appearance."  In that case, probable cause for the search exists.        Schmerber v. California, 384 U.S. 757 (1966).  The same court that decided Kliphouse has held that the smell of alcohol on a defendant's breath, along with evidence that the driver had caused an accident resulting in serious bodily injury, gave the officer sufficient probable cause to request a blood test.  State v. Cesareti, 632 So. 2d 1105 (1994). 

 8.  ISSUE: ADMISSIBILITY OF FIELD SOBRIETY  TESTS IN DRUNK DRIVING LAWS

14. State v. Homan, 89 Ohio St. 3d 421 (2000).

15. State v. Schmitt, 101 Ohio St. 3d 79 (2004). 16. State v. Lasworth, 131 N.M. 739, 42 P. 3d 844 (N.M. App. 2001).

17. United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002). 18. State v. Chastain, 960 P. 2d 756 (Kan. 1998).

Although an examination of Georgia case law pertaining to field sobriety testing is beyond the scope of this paper, and was covered during the morning session, even a cursory review of the decisions from our Court of Appeals reveals that they have taken a very relaxed approach to the admissibility of field sobriety tests.  Their approach has won less than universal approval.  In State v. Homan, 89 Ohio St. 3d 421 (2000), the Ohio Supreme Court ruled that in order for the results of field sobriety tests to serve as evidence of probable cause to arrest, the police must have administered the tests in strict compliance with standardized testing procedures.  Obviously, if the test "results" were inadmissible to determine probable cause to arrest, they were inadmissible at trial. 

Following the Homan decision the Ohio legislature "fixed the problem" by               enacting a statute providing that an arresting officer need not administer the FST's in strict compliance with his training in order for the "results" to be admissible at trial.  Instead, an officer may now testify concerning the results if the FST's are administered in substantial compliance with the standards.  The Supreme Court of Ohio has since ruled that prior to the effective date of the statute testimony based on the officer's firsthand observation of the defendant's conduct and performance as a lay witness is admissible, but the Court still prohibited testimony regarding the test results, which may be tainted, if the tests are not conducted "by the book."  State v. Schmitt, 101 Ohio St. 3d 79 (2004).  The court also explicitly extended the Homan rule to the admissibility of test results at trial.
We all know that Drs. Marcelline Burns and Herbert Moskowitz, doing business as the Southern California Research Institute, conducted research on field sobriety tests back in the 1970's under a NHTSA contract.  Prior to her appearance in State v. Lasworth, 131 N.M. 739, 42 P. 3d 844 (N.M. App. 2001), Dr. Burns had been recognized as an expert on horizontal gaze nystagmus in at least twenty-six states.  A plucky trial judge ruled that, although Dr. Burns could testify as to the reliability of HGN, she was not qualified to establish its validity.  Under New Mexico law, before scientific evidence may be admitted, the proponent must convince the trial court that the technique
has scientific validity.  In other words, there must be proof of the technique's ability to show what it purports to show.  State v.Alberico, 116 N.M. 156, 167 (1993).

The appellate court agreed with the trial court that without a more detailed understanding of the causes of HGN, they could not be sure the results obtained by Dr. Burns, et. al., were not a "coincidence."  The court then reviewed the 1995 Colorado FST validation study and made some interesting observations.  The mean BAC of the 234 motorists who were detained was .152.  Of the 234 motorists, 184 had BAC's in excess of the statutory limit.  If the police had simply arrested every one of the 234 drivers, seventy-nine percent of their arrest decisions would have been correct.  In the actual study the arrest decision was correct eighty-six percent of the time, so FST's had only a marginal impact on correct decision making.  Furthermore, even Dr. Burns has conceded that lack of smooth pursuit and distinct nystagmus at maximum deviation occur at low BAC's with some people but not others or on some occasions but not others.  She has also admitted that there is evidence that smooth pursuit may break down at BAC's as low as .04 and that controlled experiments at low BAC's are needed.  Because these statements suggest that the HGN may be prone to false positives under New Mexico law, the appeals court opined that it was reasonable for the trial court to want to know more about the effects of low alcohol levels on the physiological mechanisms that produce HGN.;
It gets better.  The court noted that HGN was originally "validated" as a means of distinguishing BAC's below .10 and those at or above .10.  In the 1995 Colorado study the FST battery was used to distinguish BAC's above or below .05, and in the same study Dr. Burns suggested the FST's are also effective when the criterion for arrest is .08.  As the appeals court said, "The district court could reasonably have wanted to hear a more detailed scientific explanation of how the physiological cues that make up the HGN FST vary with a subject's BAC in such a remarkable manner that the HGN FST can provide statistically valid and reliable evidence at varying criterion BAC's.      

The magnum opus on FST's must be United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002).  The defendant called Spurgeon Cole, Ph.D., Professor of Psychology at Clemson University, Yale Caplan, Ph.D., former chief toxicologist for the Office of the Medical Examiner in Maryland, Joel Wiesen, Ph.D., an industrial psychologist, and Harold Brull, a licensed psychologist, who testified either in person or by affidavit, that the tests were unreliable to prove a person was impaired by alcohol.  Dr. Cole was particularly critical of the methods used by NHTSA to test and validate the FST's.  He noted the unacceptably high error rates of 47% in the 1977 study and 32% in the 1981 Final Report, which were both eclipsed by the inter-rater reliability rate of only 57%.          Dr. Cole's own study showed officers classified 46% of sober individuals as too impaired to drive.  Of course, the studies upon which NHTSA had relied were not subjected to peer review nor published in the sense contemplated by Daubert. 

     10.

The magistrate ruled that: 

1.Results of properly conducted FST's are admissible to show probable cause to arrest.      

2. FST's cannot be used to establish a blood alcohol content.

3. HGN has been shown to be caused by alcohol consumption among other reasons.

4. If the officer is properly trained and qualified to perform FST's he may testify about his observations only, without referring to terms like "failed the test" or "exhibited" a number of "standardized clues."

5. If the officer testifies he performed and observed HGN, the defendant may bring out the numerous other causes of HGN through cross-examination or judicial notice.

6. The officer's lay opinion cannot include his technical or specialized knowledge concerning HGN.

Although many courts across the country have casually admitted HGN evidence by reference to NHTSA materials or other court decisions, a handful have actually excluded HGN evidence.  State v. Chastain, 960 P. 2d 756 (Kan. 1998), found that HGN does not satisfy the Frye standard and is, therefore, inadmissible before the trier of fact.  Mississippi, while allowing HGN evidence for probable cause determinations, has also held that HGN does not satisfy Frye.  Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997).

 11. ISSUE: ADMISSIBILITY OF STATE ADMINISTERED BREATH TESTS IN DUI CASES

19. Patton v. City of Decatur, 337 So. 2d 321(Ala., l976).

20. Fuenning v. Superior Court, 139 Ariz. 590, 680 P. 2d 121 (1984).

21. Mayo v. City of Madison, 652 So. 2d 201(Ala., l994).

The vast majority of states have statutory requirements very similar to O.C.G.A. 40-6-392 (a), which is based on the Uniform Motor Vehicle Code.  It has been uniformly held that blood and breath test results are not admissible under these shortcut statutes if it cannot be shown that the tests were conducted in accordance with the "methods approved" by the responsible state agency.  E.g., State v. Broyles, 94 Ore. Appp. 334, 765 P. 2d 239 (1988); Westerman v. State, 1974 Ok. Cr. 151, 525 P. 2d 1359 (1974).  It goes without saying that a test cannot be performed according to approved methods if there are no approved methods.

Last year the Court of Appeals deflected a frontal assault daring the State to reveal both the existence and content of their illusory approved methods.  Scara v. State, 259 Ga. App. 510 (2003).  This year they have gone even farther and held that the instructions in the Intoxilyzer 5000 operator's manual are not part of the methods approved by DFS, so a deviation therefrom goes to weight and not admissibility.  State v. Palmaka, 2004 WL 595320 (Ga. App. decided March 26, 2004). 

Currently, Ga. Comp. R. & Regs. R. 92-3-06 (12) provides that, "Administrative, procedural, and or/clerical steps performed in conducting a test shall not constitute a part of the approved method of analysis."  Basically, DFS is saying, "How we do it is not a part of how we do it."  While I must reluctantly concede that I do not expect our Court of Appeals to rectify the situation in my lifetime, perhaps some day the persuasive precedents from across the country will sway our Supreme Court.The Supreme Court of Alabama faced a situation not unlike the current state of affairs in Georgia when they decided Patton v. City of Decatur, 337 So. 2d 321(Ala., l976). The Alabama statute provided that, "Chemical analyses of the person's blood, urine, breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the State Board of Health..."  In Patton the police officer testified that he had a license issued by the appropriate State authority to operate the breath testing device.  In fact, that officer went farther than the officer in Scara and testified as to the procedure he followed, which was printed in the form of a check list on a card. The trial court had before it no certified methods promulgated by the
     

12.    

Board of Health for the administration of breath tests.  The Alabama Supreme Court ruled  that their inability to ascertain the validity of the results demonstrated the absolute necessity for written procedural methods governing its use.  Id. at 324. The Court also observed that unwritten standards were the equivalent of having no standards at all.  As in Patton, no Georgia court has before it any evidence concerning the content of the "methods approved by the Division of Forensic Sciences" other than "How we do it is not a part of how we do it."

The Division of Forensic Sciences and prosecutors all over the state apparently expect our courts to accept the proposition that "procedural steps" are not part of the approved methods, and in Palmaka the Court of Appeals implicitly did so.  My research has yielded only one reported appellate decision wherein the State explicitly put forward this proposition.  In rejecting this method-procedure dichotomy, the Supreme Court of Arizona noted that method and procedure are interchangeable words.  Fuenning v. Superior Court, 139 Ariz. 590, 680 P. 2d 121 (1984).

The appellate courts of other states have gone even further in requiring compliance with the requirement that breath tests be conducted according to methods approved by the applicable state agency.  For example, it has been held that the state's failure  to specify inspection procedures as part of their published administrative rules prohibited the prosecutor from proving that the chemical analysis was "performed according to methods approved by the Department of Forensic Sciences."  Mayo v. City of Madison, 652 So. 2d 201(Ala., l994).  The Court observed that, at a minimum, DFS should adopt particularized rules to ensure that the Intoxilyzer 5000 machines are effectively inspected for accuracy and reliability.  Id. At 209.  Interestingly, the rule in effect in Alabama at the time merely provided that each breath testing machine would be checked periodically and lacked any specific instructions regarding how the machine would be inspected, what standards would be employed to determine that a machine was sufficiently accurate, nor what parts of the machine would be checked.  In other words, the Alabama rule that was found lacking by the Mayo court is exactly what we have in Georgia today.  Ga. Comp. R. &  Regs. R. 92-3-.06 (8) provides, in part, that, "The Director, Division of Forensic Sciences: (a) will cause each instrument used in the administration of breath tests to be checked periodically for calibration and operation and a record of the results of all such checks to be maintained." 

The purpose of requiring published techniques and methods is to make the court's job easier.  If proper, published regulations existed regarding the operation of the machine, the maintenance of the machine, and the competence and qualifications of permit holders, the court could simply go down the list and admit the test result, confident that the testing process met scientific standards that have been promulgated in an open setting and determined to be fair. 

     13.

The existing GBI implied consent rules can be summarized as follows: "We will approve whatever machine we want to, we will calibrate it whenever we feel like it, we will calibrate it to whatever standard we feel like, and we will issue permits to whoever we want.  We will not publish any of our rules, and they are subject to change without notice.  Go read the Forensic Sciences Act of 1997."

ISSUE: FAILURE TO PRESERVE EXCULPATORY EVIDENCE IN DUI CASES

22. California v. Trombetta, 467 U.S. 479 (1984).

23. Arizona v. Youngblood, 488 U.S. 51 (1988).

24. State v. Meza, 203 Ariz. 50, 50 P. 3d 407 (Ariz. App. 2002). 25. Ex parte Gingo, 605 So. 2d 1237 (Ala. 1992).

California v. Trombetta, 467 U.S. 479 (1984), involved a due process challenge to a DUI conviction where the state failed to preserve the defendant's breath sample.  The Court rejected the defendant's argument, reasoning that samples were unlikely to be exculpatory since the procedures for running the Intoximeter rendered the results reliable.  However, the Court's conclusion was premised on the reliability of the breath testing instrument and the fact that California law gave the defendant the opportunity to inspect the machine as well as that machine's weekly calibration results and the breath samples used in the calibrations.  Trombetta did hold that the government violates due process when it fails to preserve evidence containing a known exculpatory value and comparable evidence is not obtainable by reasonable means.  In other words, a due process challenge will be sustained when the exculpatory value of the evidence is apparent before it is destroyed.

In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.       Justice Stevens' concurring opinion is notable for the remark that, "In my opinion there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nevertheless so critical to the defense as to make a criminal trial fundamentally unfair."  

14.

For a case where an appellate court found bad faith requiring suppression of a breath test result, please read State v. Meza, 203 Ariz. 50, 50 P. 3d 407 (Ariz. App. 2002).  The Arizona Court of Appeals held that the state's failure to disclose Alcohol Data Acquisition Management System (ADAMS) records violated discovery rules, the       State crime lab acted in bad faith when it concealed results of the breath analyzer's failed   calibration tests from ADAMS and the defendant, suppression of test results was the          appropriate sanction, and the defendant was entitled to a restitutionary monetary sanction to alleviate the costs undertaken due to discovery violations. 

In a case where bad faith was not shown, the Alabama Supreme Court excluded test results in a hazardous waste disposal prosecution.  Ex parte Gingo, 605 So. 2d 1237 (Ala. 1992).   Distinguishing Youngblood the court observed that in this case there was no evidence available to refute the test results because the samples had been destroyed, and the very evidence necessary to convict the defendants was the test results.  In other words, the defendants were indicted solely because of the test results done on the samples.  Citing Justice Stevens' concurring opinion in Youngblood the unanimous Court excluded the State's test results.  This case might be of use in that limited number of instances where the crime lab destroys blood or urine samples in a DUI-drugs case before you are retained.  This would be especially true in a case where the arresting officer does not have the relevant skills, experience, or training to render an opinion as an expert on the issue of whether your client was under the influence of a drug.  See People v. Workman, 312 Ill. App. 3d 305, 726 N.E. 2d 759 (2000).

        
15.   ISSUE: DUI COLLATERAL ESTOPPEL - DUI CRIMINAL vs. DUI CIVIL TRIALS

26.  Gumma v. White, 345 Ill. App. 3d 610, 803 N.E. 2d 130 (2003).  

It seems well established that the state is not collaterally estopped from presenting evidence that a defendant refused to submit to state test at defendant's trial for DUI because an administrative law judge found that the police officer who stopped the defendant failed to properly inform the defendant of his/her implied consent rights.  The ALJ's decision has no preclusive effect in a criminal trial because the state did not have a full opportunity to litigate the issue of whether the defendant refused testing during the administrative hearing.  Swain v. State, 251 Ga. App. 110 (2001).  Please note that in Swain, unlike earlier cases, an evidentiary hearing was held and the ALJ reached a decision on the merits. 

There are four requirements for application of the doctrine of collateral estoppel:     1. Both proceedings must involve the same parties or their privies. 2. The issue must have been actually litigated and determined in the first proceeding.          3. The determination must have been essential to the judgment in the first proceeding.       4. The party against whom the doctrine is asserted must have had a full opportunity to litigate the issue in question. 

The Swain court said that even if the first three criteria had been met, the last had not.  Affording great weight to the fact that only the driver, and not the State, may seek judicial review of an ALJ's decision, the court concluded that the State did not have a full opportunity to litigate the issue of whether Ms. Swain refused testing.  The court also emphasized that the purpose of the driver's license suspension hearing was to provide a quick, informal procedure to remove dangerous drivers from Georgia's roadways.  The court also cited the Supreme Court of Illinois for the proposition that to rule otherwise would make it necessary for the State to treat the suspension hearing as an integral part of the criminal trial, so the process would seldom, if ever, be swift.  People v. Moore, 138 Ill. 2d 162, 561 N.E. 2d 648 (1990). 

Why would reliance on the Illinois decision be important?  In Gumma v. White, 345 Ill. App. 3d 610, 803 N.E. 2d 130 (2003), the Illinois Court of Appeals distinguished the situation where the criminal proceeding has preceded the administrative hearing.  Mr. Gumma's breath was held inadmissible because the police had failed to maintain records required by Illinois Administrative Code, and the DUI charge was dismissed.  Therefore, the rationale of the Moore decision, that the administrative process be swift, was inapplicable, and collateral estoppel precluded the suspension of Mr. Gumma's license.     This decision will be of limited applicability in Georgia because a non-DUI disposition of the underlying charge results in deletion of the administrative suspension, but at least in cases of alleged refusal it will be of some utility.

16.     ISSUE: DUI DWI Drunk Driving ROADBLOCKS

27. State v. McCleery, 251 Neb. 940, 560 N.W. 2d 789 (1997).
28. Commonwealth v. Buchanon, 122 S.W. 3d 565 (Ky. 2004).

In State v. McCleery, 251 Neb. 940, 560 N.W. 2d 789 (1997), the issue was whether stopping one's car one-fourth of a block from a sobriety checkpoint and then backing away from the checkpoint constitutes sufficient evidence to have a reasonable suspicion that the driver is, has been, or is about to be engaged in criminal behavior.  The checkpoint was conducted in total compliance with the Department of Transportation policy, and a DOT report on "The Use of Sobriety Checkpoints for Impaired Driving Performance" provides in part, "A motorist who wishes to avoid the checkpoint by legally turning before entering the checkpoint area should be allowed to do so unless a traffic violation is observed or probable cause exists to take other action.  The act of avoiding a sobriety checkpoint does not constitute grounds for a stop."  So, the Nebraska Supreme Court reversed the trial court's order denying defendant's motion to suppress all evidence obtained pursuant to her unlawful detention.

The case from Kentucky is interesting, and with Baker on the books should be persuasive in Georgia.  The Court held that the evidence indicated that the primary purpose of a roadblock conducted by the sheriff's department, which was conducted by the department placing a "spotter" several hundred yards before the roadblock who radioed ahead if a vehicle looked "suspicious," was the interdiction of illegal drugs, and thus the roadblock was in violation of the Fourth Amendment.  Commonwealth v. Buchanon, 122 S.W. 3d 565 (Ky. 2004).  The court was not persuaded by the clever sheriff's tactic of placing signs announcing a DUI roadblock by the side of the highway. 

 17. ISSUE: THE JUSTIFICATION AND NECESSITY DUI DEFENSE

29. Stodghill v. State, 2004 WL 193187 (Miss. App. decided February 3, 2004).

30. People v. Pena, 197 Cal. Rptr. 264 (Cal. Ct. App. 1983).

While I am unaware of any Georgia case law addressing the justification and necessity defense in a DUI case, I have successfully used the defense on one occasion.  We do have one case holding that the defense is available in a habitual violator prosecution.  The defendant was charged while driving his very pregnant wife to the doctor, and the trial court refused to charge the jury on the justification defense.  The Georgia Supreme Court reversed the conviction and ruled that a jury could have found that seeking medical help was proper justification, so the instruction should have been given.  Tarvestad v. State, 261 Ga. 605 (1991).

Stodghill v. State, 2004 WL 193187 (Miss. App. decided February 3, 2004), reminds me of the case I tried several years ago.  Mr. Stodghill and his girlfriend were spending the night at a cabin in a remote location when she became violently ill with seizure-like activity.  He was unsuccessful in summoning an ambulance on his cell phone, so he decided to drive her to the hospital.  He was, of course, stopped, charged with DUI, and convicted.  In reversing the conviction the Court of Appeals noted that three elements must be established by the defendant: 1) the act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; and 3) the harm caused must not have been disproportionate to the harm avoided.

And now for my favorite case of the thirty, People v. Pena, 197 Cal. Rptr. 264 (Cal. Ct. App. 1983).  A deputy sheriff observed the defendant and his girlfriend asleep in his car and decided to investigate because of the late hour.  Upon approaching the car, the officer stated that he smelled alcohol.  The girlfriend was semi-nude, wearing only a long fur coat over a "brief see-through teddy nightgown."  The deputy then conducted what he claimed was a search for weapons, examining the lady's body under her fur coat with a flashlight and continuing his examination of the lady's rear.  He then ordered her into his patrol car to take her home, ostensibly for her protection.

Proving that chivalry is not dead, the defendant followed them out of fear for his girlfriend's safety and was arrested at her house for DUI.  The California Court of Appeals held that the defense was available to the defendant and that he would be entitled to an acquittal, notwithstanding the fact that he was legally intoxicated, if he could establish the defense on the facts by convincing the jury that: 1) he held a genuine belief that the lady was in danger of assault by or through the deputy, 2) his good faith belief was objectively reasonable under the totality of the circumstances, 3) he operated his vehicle only because of his fear for the girlfriend's safety and for no other purpose, 4) he    had no opportunity to engage in alternative legal means of protecting his girlfriend from the danger he believed she faced; and 5) he was not substantially at fault in the creation of the emergency situation which he claims justified his action in driving while intoxicated.

While rare, these cases can and do arise.  And remember, when the use of a flashlight and the circumstances don't quite fit, you must acquit.