Year 2000 Georgia DUI
Case Law Synopsis
HERE TO READ THE COMPLETE AND
UP-TO-DATE VERSION OF GEORGIA DUI LAW IN PLAIN ENGLISH
DUI CASE LAW SYNOPSES WILL BE POSTED TO THIS PAGE. ANY CASES
INVOLVING GEORGIA DUI LAW DECIDED AFTER NOVEMBER
29, 2000 WILL BE POSTED TO THE NEW APPELLATE DECISIONS PAGE. THE NEW
PAGE SHOULD BE UP NO LATER THAN 01/25/2001.
HERE TO GO TO THE 2001 APPELLATE DECISIONS PAGE.
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2001 DUI APPELLATE DECISIONS
THE FOLLOWING CASES ARE ARRANGED
TOPICALLY. ALL SYNOPSES ARE THE DUI GUY'S OWN AS ARE THE COMMENTS
AND NOTES. IF YOU ARE DOING RESEARCH, I STRONGLY ADVISE YOU TO READ
THE CASES IN FULL. I MAKE NO REPRESENTATION AS TO THE ACCURACY OF
THE SYNOPSES. FEEL FREE TO
ME WITH ANY HELPFUL SUGGESTIONS OR CRITICISMS.
J. Michael Mullis
The DUI GUY
Georgia DUI Lawyer
Last Updated: November
ONE OF THE FOLLOWING HYPERLINKS TO JUMP TO YOUR TOPIC
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SUFFICIENCY OF THE EVIDENCE
Headlines of Important Cases Are Green
Suspicion - Improper Parking
Roberts v. State A99A2216; 2000 WL 14480 (January 11, 2000)
Defendant testified that he stopped for less than a minute to discharge a
passenger, and then drove off before he realized a police car had pulled
behind him. The officer
testified that he observed defendant stopped in the roadway of a two-lane
street for about four minutes. The
officer further testified that he saw no one enter or exit defendant's
vehicle during that time. The
officer also testified that as he pulled behind defendant's stopped car,
defendant started to drive off. The
officer activated his emergency lights at that time.
The Court of Appeals upheld the trial court's ruling that
defendant's action was not a momentary stop to discharge a passenger and
that he committed the offense of improper parking thus authorizing a
Suspicion - Backing into a Police Car
State v. Gehris A99A1746; 2000 WL 37738 (January 19, 2000)
Defendant backed into a Doraville police car in the parking lot of a
restaurant located outside the city limits of Doraville, but in Dekalb
County. Defendant left the
scene. Two Doraville
policemen were in the parking lot, witnessed the incident, followed and
pulled defendant over in the parking lot of a Waffle House located inside
the city limits of Doraville. They
smelled alcohol on Defendant's person and called DeKalb County police to
investigate the accident. DeKalb
County investigated and released defendant without issuing a citation.
The Doraville officers decided to investigate further, administered
field sobriety tests to Defendant and arrested him for DUI.
The Trial Court ruled that the Doraville officers relinquished
their authority over Defendant when DeKalb County took over.
The Court of Appeals reversed noting that an officer can arrest
someone for a traffic violation committed in his/her presence regardless
of the territorial limitations. Furthermore,
the Appellate Court held that just because DeKalb County decided not to
investigate the case as a DUI did not mean that Doraville officers were
deprived of their independent authority to investigate.
Suspicion to Stop-The Cops Knew His License was Suspended
Polke v. State A99A1966; 2000 WL 38831 (January 20, 2000)
The cops were itching to bust defendant for drugs.
They placed him under surveillance.
They discovered his license was suspended.
Defendant got into a car and drove off.
The surveillance officer radioed to another officer to stop
complained the police had no articulable suspicion to stop him based on an
anonymous tip. The Court of
Appeals said he was stopped for driving on a suspended license.
The Court further said that the officers were authorized to search
defendant's automobile incident to the lawful arrest.
Suspicion to Stop-Consent to Search
State v. Milsap A99A2064; 2000 WL 86839 (January 28, 2000)
The driver was stopped for not wearing a seat belt.
After issuing a warning, the officer asked the driver for
permission to search his vehicle. Driver
consented, the search was conducted, and no contraband was found.
Undaunted, the officer asked the passenger (defendant) for
permission to search her purse. She
consented. The officer found
contraband. The Court of
Appeals, citing to Stokes v. State, 238 Ga.App. 230 and State v.
Westmoreland, 204 Ga.App. 312, upheld the consent search of defendant's
purse. [DUIGUY COMMENT:
both Stokes and Westmoreland involved first tier encounters of
individuals (any police officer can approach any individual, strike up a
conversation and request a voluntary search).
However, the encounter in Milsap was a traffic stop that involved
articulable suspicion to stop for not wearing a seatbelt.
Why the Court of Appeals did not consider this an illegal detention
without reasonable suspicion of drug activity as it did in Smith v. State,
216 Ga.App. 453 and State v. Blair 239 Ga.App. 340 is beyond me.]
Suspicion to Stop - None Here
State v. Winnie A99A2354; 2000 WL 124412 (February 3, 2000)
The officer saw defendant pull into a closed Salvation Army facility at
4:00 a.m. The officer turned
around to investigate. As the
officer pulled into the back of the facility, defendant began to drive
off. Without observing any
traffic violations or having any report of criminal activity, and without
any claim that it appeared defendant was attempting to flee, the officer
pulled defendant over, searched him and found drugs. Analogizing
this case to Attaway v. State, 236 Ga.App. 307, the Court of Appeals said
that although the officer could have closely observed defendant, when
defendant pulled away, the officer had no particularized and objective
reason to suspect defendant of involvement in any criminal activity.
Suspicion to Stop -Smell of Marijuana
Tomlin v. State, A00A0228; 2000 WL 174626 (February 16, 2000)
Defendant had the good fortune to be followed by a narcotics agent while
his passenger was smoking a joint and blowing the smoke out the passenger
window. Each time the
passenger exhaled, the agent smelled the distinct odor of marijuana.
Defendant's truck was pulled over, marijuana discovered in the
floorboard, and defendant admitted to possessing the marijuana.
At his motion to suppress, defendant contended that the police had
no reasonable basis for stopping his vehicle.
The Court of Appeals held that the odor of marijuana emanating from
a vehicle provides reasonable suspicion that marijuana is in the car, thus
justifying a brief investigative stop.
Suspicion - Trial Court Overruled
Peters v. State, A99A2046, 2000 WL 280013 (March 16, 2000)
Defendant, a black male, was seen coming out of a breezeway (known
for heavy drug sales) in a hurried fashion. When he saw the
officers, he became very nervous and continued to hurry toward his car.
He was stopped and searched. Because he was commanded to stop and
was prevented from entering his car, this was a second tier encounter,
which required a reasonable articulable suspicion of criminal activity.
The Court of Appeals held that defendant did not flee, he just continued
in his previous hurried manner. Moreover, appearing nervous in
the presence of police officers falls short of the reasonable articulable
suspicion required under Terry. The trial court's denial of
defendant's motion to suppress was error.
Suspicion - Stop and Search
Florida v. J. L., 98-1993 Supreme Court of the United States (March
An uncorroborated anonymous tip, i.e. one that
provides sufficient indicia of reliability to provide reasonable
suspicion to make an investigatory stop, not sufficient to justify a stop
Kinman v. State, A99A2353, 2000 WL 320687 (March 29, 2000)
Officer A stopped Defendant for going the wrong way on a one way
street. Officer A turned the investigation over to officer B who had
more DUI experience. Defendant contended on appeal that the State
failed to offer evidence at the suppression hearing that officer B
possessed an adequate basis for suspecting that Defendant was impaired.
In short, the Court of Appeals held that Officer B had a right to complete
a lawful investigation initiated by another officer.
Probable Cause to Arrest
Goddard v. State, A00A0649; 2000 WL 758655 (June 13, 2000)
An officer can knock on a door to a residence for the purpose of
investigating a reported crime. If the person that answers the door
exhibits numerous signs of intoxication, admits driving the car that had
recently struck a fixed object, and tests for a per se breath alcohol
level, probable cause to arrest for DUI exists and conviction for same
Articulable Suspicion -
Apparently Twelve Isn't Enough
Payne v. State, A00A0021;2000 WL 868484 (June 30, 2000)
Attorneys, you've got to read the portions of this opinion citing
conversation appearing on the video/audio tape made at the stop. Defendant
was stopped for following too close. After viewing the video, the Court of
Appeals determined that the arresting officer's "twelve articulable
suspicions" were a crock. Even Judge Eldridge agreed. Held: Defendant
was detained without legal basis and the detention was an unlawful arrest
thus rendering the coerced "consensual" search unlawful.
Articulable Suspicion - Secure
Your Rolling Papers
Barraco v. State, A00A0631, 2000 WL 898087 (July 7, 2000)
Defendant was stopped for no headlight. While producing his
drivers license, rolling papers fell from his wallet. He admitted to using
marijuana but denied having any. He denied permission to search. Simply
being nervous and in possession of rolling papers would not support a
search, probable cause to search would be necessary. However, the
Court of Appeals said rolling papers falling out and admission of use of
marijuana coupled with nervousness provided reasonable suspicion that a
crime was being committed. Construing the evidence most favorably to the
trial court judgment, and all facts considered, the Court of Appeals could
not say the trial court erred in denying the motion to suppress.
Articulable Suspicion - Check
Navicky v. State, A00A1506; 2000 WL 1006531 (July 21, 2000)
A broken license plate light is sufficient grounds for a traffic
stop. Defendant's consent to search allowed the officer to find
Articulable Suspicion - You
Really Should Use Your Turn Signal
Woodward v. State, A00A1328: 2000 WL 1036244 (July 28, 2000)
Defendant's failure to use turn signal when a vehicle was directly
behind him is reason for the police to stop. Once stopped and the officer
determined that defendant has no license or insurance, they are authorized
to arrest thus making a search of the vehicle a search incident to arrest.
Articulable Suspicion - None
Smith v. State, A00A1015; 2000 WL 1175677 (August 21, 2000)
Sometime after midnight, cop noticed defendant's car 100 yards
away in an apartment complex parking lot. The car was stopped, brake
lights were on and it was kind of pulled over to the right (turns out he
was dropping off his girlfriend). He was not impeding traffic. When the
cop was 25 yards away, defendant pulled off, did not speed, never broke
any traffic laws. Cop testified about reports of auto break-ins at
various apartment complexes in the area but none about this specific
complex. Held: no evidence that this area was a high crime area; no
evidence that any ongoing criminal activity existed at the complex that
night; no evidence that defendant's departure was because he noticed the
patrol car; no violation of any traffic laws. The trial court's denial of defendant's
motion to suppress reversed.
Articulable Suspicion - Reasonableness
is in the Eye of the Beholder
Johnson v. State, A00A1217; 2000 WL 1456288 (October 2, 2000)
The officer stopped defendant because he stopped defendant eight
months prior and defendant's drivers license was suspended at that time.
Nothing in the opinion indicates why it was suspended, how long it had
been suspended, or the statutory suspension time.. Likewise, nothing in
the opinion indicates that the officer called in to check on the validity
of defendant's license prior to the stop. In any event, the Court of
Appeals said that "it would not have been unreasonable for Officer
Hunter to suspect that Johnson's license suspension remained in effect and
that Johnson was violating the law by driving."
Articulable Suspicion - Slam
Dunk for the State
Florence v. State, A00A1804; 2000 WL 1456282 (October 2,
Cop testified that defendant was weaving. Defendant said he was
not. The trial court believed the cop. Case over.
Articulable Suspicion - Window
Tint and Non-Residents
Hameen v. State, A00A1296; 2000 WL 1634521 (November 1, 2000)
Defendant was driving a vehicle with an out of state license
plate. The officer pulled him over because his window tint appeared too
dark. No other traffic violation was noted. At the motion hearing
the officer testified that "persons using drugs attempt to hide this
by using illegally tinted windows." The Court of Appeals said
that non-residents are exempt from the window tint statute, that the
officers, like everyone else is presumed to know the law, and that the
officer's window tint/drug use connection was a crock.
Spradley v. State, A99A1618; 2000 WL 146339 (February 11, 2000)
Double jeopardy generally does not apply in case of a mistrial unless the
prosecutor goads defense counsel into asking for it.
The Court of Appeals said that, although the trial court could have
found otherwise, its ruling that the prosecutor did not intend to cause
the mistrial was authorized by the evidence and the denial of the plea in
bar was thus proper.
Locklear V. State, A00A0171, 2000 WL 572438 (May 12, 2000)
A DUI conviction was erroneously signed and filed with the Clerk
who forwarded the information to the Georgia Department of Public Safety
which suspended defendant's driver's license. Defendant completed
DUI School and paid the reinstatement fee for the return of his license.
He paid no fine and completed no community service. Defendant
contended that the license suspension was punishment and the state was
thus barred from prosecuting him again for DUI. The Court of Appeals
held a contrary opinion and said that the license suspension was an error
and did not flow from the prosecutorial power of the state.
State's Motion for Mistrial Was
Humphrey v. state A00A0630; 2000 WL 891344 (July 6, 2000)
The State's motion for mistrial was properly granted and
defendant's motion for plea in bar failed when two properly subpoenaed
witnesses necessary for the State's case failed to show for trial. [DUIGUY
Note: Perhaps the prosecutor should have seen about the availability of
his witnesses before the jury was sworn.]
State's Motion for Mistrial Was
Hernandez v. State, A00A0014; 2000 WL 917865 (July 10, 2000)
Cross-examination by defense counsel of state's witness regarding
potential sentence witness could receive if convicted along with inquiry
as to any benefits for testifying is constitutionally protected.
Therefore, the trial court's grant of State's motion for mistrial over
defendant's objection operated as a plea in bar to further prosecution.
Evidence - Expert Witness
Odom v. State, A00A0877, 2000 WL 276596 (March 15, 2000)
This case explains the manner in which an expert can testify.
For example, expert opinion testimony that directly addresses the
credibility of the victim or expert opinion testimony that goes to the
ultimate issue to decided by the trier of fact (jury) is forbidden.
It is permissible, for example for an expert to testify that in his
opinion, the victim's psychological exam was consistent with sexual abuse
because that opinion odes not invade the province of the jury.
However, it is impermissible for the same expert to testify that in his
opinion, the victim was sexually abused because that testimony invades the
province of the jury. [DUIGUY NOTE: If the witness were not tendered as an
expert in this case, would he have been able to testify that the victim
was sexually abused pursuant to the Court's logic in the next case of
Atkinson v. State?]
Non-expert Drug Testimony
Atkinson v. State, A99A1840, 2000 WL 283679 (March 17, 2000)
Defendant was tried for various drug charges. A chemist from
the GBI crime lab testified that he tested one substance that was positive
for cocaine. The chemist did not test the purported marijuana.
The trial court allowed police officers to testify, without objection from
defendant or any contention that the substance was anything but marijuana,
that in their opinion the substance was marijuana. This was not
expert testimony, but the Court of Appeals reasoned that, notwithstanding
the fact that not even a presumptive test was performed, the officers had
sufficient training to identify the substance as marijuana. [DUIGUY NOTE:
Now not only do we have drug sniffing police officers, they can also give
their non-expert opinion as to the identity of the drugs they sniff out].
Evidence - Brady
Harridge v. State, A00A0838, 2000 WL 387053 (April 18, 2000)
Defense counsel filed a Brady Motion seeking, among other things,
all evidence in custody of the GBI Lab. Certain evidence pertaining
to a victim's bodily fluids was not provided to defendant prior to trial.
The Court of Appeals held that because a reasonable probability existed
that disclosure may have altered the outcome of the trial, defendant was
entitled to a new trial.
Bazemore v. State, A00A0071; 2000 WL 764404 (June 13, 2000)
Defendant subpoenaed numerous documents from the state crime lab
in a DUI case. The Court of Appeals held that some of the documents
requested were not relevant and thus not discoverable. Nevertheless, the
Court held that documents relating to the chain of custody and to the
actual blood test including gas chromatogram were discoverable under OCGA
Section 40-6-392 (4).
Christian v. State, A00A0888; 2000 WL 862517 (June 29, 2000)
On the day of trial, defendant moved for a continuance claiming
the state had not complied with timely filed discovery demands.
Specifically, a video and a Field Sobriety Evaluation sheet had not been
provided. The trial court found that the video was available to defendant
for almost three months prior to trial. Also the court found that
defendant had been provided an incident report containing information on
the FSE prior to trial and that the evaluation sheet contained nothing
that defendant could not anticipate. [DUIGUY Comment: The misdemeanor
discovery statute does not provide for access to a video. As to the
FSE, if the HGN were part of the FSE, this is a scientific test and
defendant would absolutely be entitled to any evaluation sheet prior to
trial. Sanction includes suppression of the HGN from evidence.]
Werner v. State, A00A0956; 2000 WL 1134542 (August 10, 2000)
Defendant moved in limine to limit the officer's testimony
regarding the Horizontal Gaze Nystagmus test. The judge declined and told
counsel to make an objection at trial. During the officer's
testimony, counsel objected to the officer's testimony regarding the HGN
and the number of clues the officer observed. No request for a continuing
objection was made. Held: failure to request a continuing objection constituted
a waiver of that issue.
Evidence - Love
Ayers v. State, S00A0878; 2000 WL 1275297 (September 11, 2000)
Nothing in Love v. State, 271 Ga. 398 (1999) implied that reckless
driving based on marijuana consumption could not be prosecuted.
Evidence - Some
Legislators Wear Robes
McBride v. State, A00A2188; 2000 WL 1281147 (September 12, 2000)
While noting that the defendant was technically not in violation
of the statutory turn signal requirement, the three amigos came up with
some dazzling sophistry to justify a traffic stop. Try this eye-popper on
for size; "...the circumstances were such that there was real and
palpable danger--this given the potential for sudden 'oncoming traffic'
upon defendant's failure to use his turn signal in tight quarters,
significantly reducing the margin for attendant operator
error." Whatever happened to "it was a dark and stormy
Lewis v. State, A00A1718; 2000 WL 1409798 (September 27, 2000)
Defendant objected to a witness's testimony when the witness was
not identified pursuant to a demand for a list of witnesses. The Court of
Appeals said 1) the demand was not timely filed, and 2) the name of the
witness appeared on the Uniform Traffic Citation. Moreover the trial court
allowed counsel as much time as needed to interview the witness before
Evidence - Quash
King v. State, S99A1490, 2000 WL 336543 (October 2, 2000)
The March version of this opinion blew OCGA 24-9-40(a) out of the
water. Unfortunately for civil practitioners, it severely hampered their
ability to pursue certain civil cases. The Georgia Supreme Court issued
this new and improved version, which apparently attempts to preserve civil
procedures while dealing with its shortcomings in criminal cases.
King was a DUI case. The official
state test results were suppressed and the prosecutor attempted to use
OCGA 24-9-40(a) to subpoena Defendant's own test results from the
hospital. As far as I can tell, the state still cannot us the statute to
subpoena records. However, I will use as much of the Court's own language
and you can decide for yourself.
1) The right of privacy guaranteed by
the Georgia Constitution is more extensive than the right of privacy
guaranteed by the US Constitution.
2) In Georgia, the right of privacy
has "a value so essential to individual liberty . . . that its
infringement merits careful scrutiny by the court.."
3) Medical records are considered
private - even more private than bank records or telephone records.
4) Medical records cannot be disclosed
without a criminal defendant's consent unless such disclosure is required
5) The prosecution can justify
disclosure of medical records only by a) showing it acted pursuant to a
statute that effectuates a compelling state interest, and b) disclosure is
narrowly tailored to promote only that interest.
6) The state cannot have unlimited
access to medical records for purposes of prosecution.
7) Authority to file a subpoena is not
conferred by OCGA 24-9-40(a).
8) The state cannot use subpoena power
as a substitute for procedural devices such as a search warrant (which at
least requires probable cause).
9) The terms of OCGA 24-9-40(a) do not
provide for procedural due process.
10) It is impossible to construe OCGA
24-9-40(a) as a constitutionally viable authorization to subpoena medical
records and also as providing due process requirements.
11) Under the statute, the right to
privacy can be waived in writing or to the extent that the patient
places his care and treatment or nature and extent of his injuries at
issue in a criminal proceeding.
12) Without a waiver and without
notice or opportunity to object, it is inappropriate under the statute for
the state in a criminal case to subpoena defendant's medical records.
Consent - Citation to the Code Section is Enough
Cullingham v. State A99A2334; 2000 WL 122171 (February 2, 2000)
Defendant was convicted of having an unlawful blood alcohol level.
At the non-jury trial, the officer testified, without reading the
entire text of the implied consent notice, that he read the implied
consent notice from 1997, that he read the notice for those 21 or over,
and that he read it twice. During
testimony, the officer recited a portion of the notice.
On appeal, Defendant contended that, pursuant to Miller v. State,
238 Ga.App. 61 (1999), the implied consent notice was insufficient.
In Miller, the officer merely said he read the notice contained on
a card. Distinguishing
Miller, the Court of Appeals said the facts in Cullingham were in
compliance with the implied consent notice requirements.
Consent - Refusal
Gallimore v. State A00A0195; 2000 WL 156302 (February 15, 2000)
Defendant was placed under arrest and advised of his implied
consent rights. Defendant
told the arresting officer that he would submit to the state test.
Another officer transported defendant to the testing location.
At the testing location, defendant apparently declined to take the
test. The arresting officer
was then called to the testing location where he signed a form verifying
that defendant refused to submit to the blood test.
The arresting officer did not hear defendant refuse to take the
test. On appeal, defendant
contended that there was insufficient evidence to determine whether or not
he refused to submit to the state test.
The Court of Appeals held that the arresting officer's testimony
regarding his own conduct (presumably his signing the form verifying
defendant's refusal) along with the officer's observations (I have no idea
what those observations were) authorized the jury to find that defendant
refused to take the state test. [DUIGUY COMMENT: I have no idea what the
Court of Appeals is trying to say. I
can only assume that defendant wanted any mention of the refusal
suppressed from evidence since evidence of a refusal allows the prosecutor
to argue that the reason defendant refused was because he knew the test
would show the presence of alcohol or prohibited substance.
This would not be a jury issue, but a legal issue to be decided by
the trial judge. If the judge
decided that there was no probative evidence regarding refusal, then the
prosecutor would not be allowed to argue the refusal as substantive
evidence. Furthermore, the
trial court would not be able to give a jury charge regarding the refusal.
The Court of Appeals did not address this aspect of the case.
Perhaps the lawyer did not raise this issue on appeal.
The Court of Appeals only addressed the issue of whether or not the
jury was authorized to find that defendant refused to take the test.]
Consent - Some Rulings Are Just Plain Scary!
Crawford v. State, A00A1086; 2000 WL 1511554 (October 12, 2000)
Defendant was stopped for an expired tag. She had a strong odor of
alcohol (.069) and admitted to two drinks approximately 6 hours
earlier. The officer placed her in the back of his patrol car
without formally placing her under arrest, administered an alcosensor with
a positive reading, and then placed her under arrest. Citing
language in Perano, the trial court found that the notice was read
at or reasonably close to the time of the arrest. The Court of
Appeals did a de novo review and held (and this is no joke) that
because defendant "was not free to leave even before the
administration of the alcosensor test, the reading of the notice was done
at the 'time of the arrest' as required [by the statute]."[DUIGUY
COMMENT: The circuitous route taken by the Court of Appeals to arrive at
this scary piece of legal fiction is amazing. Clearly the Implied
Consent Notice was read prior to the arrest. OCGA Section 40-6-392
requires that the notice be read "at the time of the arrest."
Case law is heavily populated with decisions regarding "investigative
detention" and "custodial detention" (aka arrest). Look at
any decision involving the triggering of Miranda Rights. These
rights are not triggered during the investigation, only during an
arrest. Using fuzzy language, the Court of Appeals determined that
since Defendant was not free to leave, an arrest had occurred (their fuzzy
language - the "notice was done at the time of the arrest). Well
folks, either an arrest occurred or it had not. If not, then the language
of the Implied Consent Notice that starts out with "Georgia law
requires you to submit" is incorrect, is misleading and coercive
since you are not required to submit unless an arrest occurred or there
was an accident with serious injury or fatality. On the other hand,
if an arrest actually occurred, what if the appellant had pointed out that
the officer asked for an Alco sensor or other field sobriety test without
first Mirandizing? Would those field tests then be inadmissible
based on the fuzzy logic of the Court of Appeals?
Court of Appeals cites to the "close in proximity" language of Perano.
Perano dealt with how long after an arrest can an officer wait
before reading the implied consent notice. The reading of the notice
prior to an arrest was never contemplated by the Georgia Supreme
Court. I hope the appellant will take this issue before the Georgia
Supreme Court to see if this legal fiction will be ratified.
Intoxilyzer 5000 - BUI Case With
State v. Corriher, A00A0415; 2000 WL 387068 (April 18, 2000)
In a Boating Under the Influence case, defendant contended that
since no rules were published (pursuant to OCGA Section 50-13-3(b))
relative to the statutory requirement that a breath analysis must be
performed by an individual possessing a valid permit issued by the DFS for
this purpose, the Intox 5000 test results must be suppressed. Citing
to OCGA Section 35-3-155, the Court of Appeals held that the DFS was
exempted from the statutory rule publication requirements of OCGA Section
50-13-3(b). In other words, the test was admissible.
Intoxilyzer 5000 - Let's All Ignore
Berkow v. State A00A0668, 2000 WL 462943 (April 25, 2000)
Apparently ignoring the Georgia Supreme Court case of Casey v.
State, which said that ignoring the rule providing for a 20 minute
observation in a controlled environment prior to administration of the
Intox 5000 goes to the very foundation for admissibility of the breath
test, the Court of Appeals concluded that lack of a 20 minute observation
does not go to the admissibility of the test; rather it relates to the
weight of the test results.
Administrative Procedure Act
State v. Bowen, A00A0417; 2000 WL 968057 (July 14, 2000)
Overruling State v. Corriher, see above this section, the full
court held in this Boating Under the Influence case that the DFS rules for
issuing permits under OCGA 52-7-12 for the administration of chemical
tests are subject to APA publication requirements. Since such procedures
were not published, defendant's Intoxilyzer 5000 breath test was properly
Independent Test - Pick Your Own
Joel v. State, A00A1201; 2000 WL 1234065 (August 31, 2000)
Defendant was arrested for DUI in Forsyth County. After
taking the state breath test, he requested a blood test at Northside
Hospital in Sandy Springs. He was born there, his mother worked there, he
trusted the staff. The cop said he was not familiar with the area and gave
defendant a choice of three other facilities. Held: Unfamiliarity with an
area is insufficient to deny defendant's choice of testing facilities.
Since time was not an issue and since this facility was no further than
others the cop suggested, there was no reasonable effort to accommodate
Intoxilyzer 5000 - One Breath
Sample is Enough
Chamberlain v. State, A00A1622; 2000 WL 1528724 (October 17, 2000)
Defendant provided one breath sample (result not in the opinion)
but, because she said she had respiratory problems, did not provide the
second. She asked for a blood test. The trial court said the refusal to
provide a second sample constituted a refusal to take the test and negated
defendant's right to an independent test. The Court of Appeals ruled 1)
that failure to provide the second sample did not affect the admissibility
of the results of the first sample, 2) the test result was inadmissible
because defendant was denied her right to her independent test, and 3)
because defendant provided one valid breath sample, the trial court
improperly denied her motion to exclude evidence regarding her failure to
provide a second breath sample.
Jury Charges -
Hayens v. State, A00A0861; 2000 WL 635429 (May 18, 2000)
The State apparently asked for and received a jury charge citing
language from Lanier v. City of Manchester, 205 Ga.App. 597, to
wit; "I charge you the mere fact that the Intoxilyzer 5000 machine
has some margin of error or may give an erroneous result under certain
circumstances does not diminish the evidentiary value of the test
results." Holding that such language was error (albeit harmless
error) since such a determination was within the jury's domain, the Court
of Appeals said "language [that] is appropriate when contained in an
opinion by a reviewing court may be improper when embodied in a jury
Jury Charges -
All Women Take Heed
Cornell v. State, A00A1147; 2000 WL 1577487
Officer activated blue lights because defendant was speeding.
Defendant slowed to 50 or 60 mph. 3/4 of a mile later he signaled
and entered the emergency lane at 30-40 mph. Defendant continued for
another 1/2 mile in the emergency lane at which time the officer pulled
alongside and defendant stopped. Defendant was charged with Attempt
to Elude (a driver's license suspension violation). At trial, Defendant testified that
he wanted to reach a well lit area because of prior experience.
During deliberations, the jury sent out a question wondering if they could
find defendant not guilty because they disagreed or did not like the law.
Defense lawyer wanted the judge to recharge that the jury is the judge of
the law and the facts. The judge, apparently smelling jury nullification,
gave the pattern charge essentially telling them it was their duty to
apply the law given to them in the initial jury charge. The Court of
Appeals said this was not error. [DUIGUY Note: Presumably if the judge had
given the requested charge, that would not have been error either.]
Jury Strike - No
Clark v. State, A00A0969; 2000 WL 1721134 (Nov. 20, 2000)
Defendant contended that, because a juror was being represented in
a civil matter by the law office of the part-time solicitor, the juror
should be struck for cause. The solicitor did not participate in the
trial. The Court of Appeals held that these circumstances did not
automatically disqualify the juror.
Miranda - Warmack Overruled
State v. Coe; A99A1751, 2000 WL 320720 (March 29, 2000)
In a case of limited application this case overruled the holding
in Warmack v. State, 230 Ga.App. 157, that held that on cases prior to May
1, 1999, if an officer wants a subsequent blood, breath or urine sample,
he must first Mirandize defendant.
Miranda - No Custody, No Miranda
Harper v. State; A00A0147, 2000 WL 486201 (April 26, 2000)
The arresting officer called for a task force officer to
investigate a DUI suspect. It took the task force officer either a few
minutes, half an hour, or an hour to arrive. Defendant was allowed
to walk around but could not leave. Defendant contended that he was
in custody while waiting and should have been Mirandized prior to the
administration of field tests. The Court of Appeals disagreed and
held that the wait (however long it was) was not custodial detention.
Roadblock - Secondary Roadblock
State v. Ruiz, A00A0139; 2000 WL 283681 (March 17, 2000)
According to the Court of Appeals, a secondary roadblock (one set
up to stop cars trying to avoid the primary roadblock) that is established
pursuant to proper procedures is not analogous to police cars chasing cars
making otherwise legal turns prior to a roadblock.
Roadblock - Nothing Exciting
Loney v. State, A00A0972; 2000 WL 1029135 (July 27, 2000)
Without enumerating all the factors of LaFontaine, the Court of
Appeals nevertheless found that the roadblock was proper.
- When the Fourth Amendment is Violated
Indianapolis v. Edmond, Slip Opinion 99-1030 (Nov. 28, 2000)
The city of Indianapolis, Ind. initiated roadblocks, each
of which was manned by 30 officers who stopped a predetermined number of
cars. Each driver was approached, told this was a drug checkpoint, and
asked for drivers license and proof of insurance. The officers looked for
signs of impairment while a drug dog sniffed the air around each stopped
The general rule is that a search or
seizure is unreasonable absent an individualized suspicion of wrongdoing.
However, the Supreme Court has upheld certain brief roadblocks including
those designed to intercept illegal aliens, as well as sobriety
checkpoints (the Court pointed out that the Edmond opinion does not do
away with these types of roadblocks if they pass the "programmatic
inquiry" sniff test). But a roadblock whose primary purpose is
"to detect evidence of ordinary criminal wrongdoing" violates
the Fourth Amendment protection against unlawful search and seizure. The
Court said it "cannot sanction stops justified only by the
generalized and ever-present possibility that interrogation and inspection
may reveal that any given motorist has committed some crime."
The Court went on to say that a
roadblock cannot be justified simply because it contains an otherwise
lawful sobriety check. Rather, available evidence must be examined to
determine the primary purpose of the roadblock.. The Court emphasized that
the evidentiary inquiry should not include an individual officer's
subjective intent, but should only be conducted "at the programmatic
[DUI Guy Note: This case adds another
element to the State's burden in proving the validity of the roadblock;
"programmatic" intent of the roadblock.]
The following is another perspective
provided by my buddy and DUI lawyer extraordinaire, Dave Clark in
The USSC held that certain roadblocks
set up in Indianapolis for the
"primary purpose" of searching cars for drugs violated a
driver's right to
privacy. In doing so, the court stood by a prior decision
roadblocks set up for the purpose of arresting DUI drivers. The
court found that DUI, being an "immediate" hazard on the road,
justified a roadblock, whereas drug dealers did not pose such an immediate
threat to traffic safety. The decision seems to be at odds with
another prior case, Whren v United States, where the court ruled that a
police officer's "subjective intent" in stopping a driver was
completely irrelevant under the law. This case allows a new 4th
amendment challenge based upon a police department's purpose in setting up
a roadblock. Hearsay rules will make it difficult for the
prosecutors to overcome these attacks.
You can contact Dave at email@example.com
or log onto his website at www.clarktowne.com.
Search - Illegal Search
State v. Hanson, A99A2256; 2000 WL 306760 (March 27, 2000)
The officer stopped the long haired, bearded
musician for "weaving within his lane" (not a traffic
violation). The stop purportedly was made to check on his physical
condition. A video camera in the police care recorded both video and
audio. The officer made verbal notations regarding his observations.
A "consent" search produced contraband. After viewing the
tape, the trial court found the arresting officer's testimony lacking in
credibility, and granted defendant's motion to suppress. The State
appealed. The Court of Appeals noted that the tape revealed no evidence of
intoxication. Then, notwithstanding the fact that no law was broken,
the officer proceeded to write a warning ticket during which time he took
six minutes and asked some forty questions. Then, after defendant
was told he was free to leave, the officer called him back and asked for
permission to search his vehicle. The Court of Appeals noted that at
the time the officer ceased questions relating to DUI and began questions
relating to contraband, the officer went beyond the scope of the
investigation. The trial court's suppression was upheld. [DUIGUY
NOTE: Just when you think the Court of Appeals has tunnel vision, it
actually comes up with an opinion that makes you hope that they really do
know what's going on. Consider the following language found in this
opinion: "The great majority of Terry stop violations of the type
herein involved, go undetected and unaddressed, as the vast majority of
citizens who are subjected to such stops have violated no law, the
searches are not fruitful, and no charge is ever brought, so no judicial
review occurs. This in no way diminishes the fact that such searches
are unlawful, and their wholesale use should be condemned. Recent
history demonstrates how well-intentioned government crime-fighting
techniques such as "profiling" have the potential to cause more
damage to the public than the conduct they are intended to control.
It is the function of the Georgia and Federal Constitutions to prevent
Search - Illegal
Montero v. State, A00A0681; 2000 WL 968063 (July 14, 2000)
This is an interesting case and I encourage you to read it in
full. After being warned for window tinting, the cop returned defendant's
license and he was free to leave. Then the cop asked for permission to
search. Defendant initially said yes but then withdrew the consent. He was
detained for an hour by the time the drug dog arrived. The court held that
this was an illegal detention.
Search - More
State v. Jones, A00A1546; 2000 WL 1230258 (August 31, 2000)
Cops were on the lookout for a car purportedly transporting drugs.
Defendant was stopped for "speeding." Defendant denied consent
to search telling the officer to get a warrant. A drug dog arrived within
three minutes but the officer did not perform a free air search without
his supervisor. Defendant wanted to go to work. The officer told her she
had to wait for his supervisor. Held: waiting for supervisor meant
defendant was detained longer than necessary and effected more than just a
brief investigative stop.
Search - Standing
Gilbert v. State, A00A1432; 2000 WL 1277673 (September 7, 2000)
Defendant was a passenger in a traffic stop. He had no ownership
interest in the car, no expectation of privacy, and no standing to argue
an improper search.
Residential Search Warrant Without More Does Not Extend to a Traffic Stop
State v. Mallard, A00A0940-41; 2000 WL 1514885 (October 13, 2000)
Immediately prior to the execution of a residential search
warrant, a maroon car containing two males left the residence. The car
violated no laws and was stopped for the sole purpose of determining if
the owner of the residence was in the vehicle. He was not. The
officer then asked if any marijuana was in the car and the two occupants
each pulled marijuana out of their pockets. The trial court granted their
motion to suppress. In a detailed analysis with some excellent defense
language, the Court of Appeals ultimately held that in this case, no
reasonable suspicion existed to stop the car.
Search - More
State v. Cunningham, A00A1353; 2000 WL 1658627 (Nov. 6, 2000)
Officer testified that he received information from another
officer to watch for a specifically described Caprice Classic coming from
Atlanta on Hwy 411 occupied by a white female, and possibly a white male,
possibly carrying methamphetamine. The officer pulled the car over
alleging the passenger was not wearing a seatbelt and the driver failed to
maintain lane. It later turned out that the driver's license had
expired. She was given a verbal warning regarding failure to
maintain lane, a courtesy warning on the seat belt violation, and no
citation or waning for the expired license. With this portion of the
investigation clearly over, the officer then asked for consent to
search. The driver remained mute and the officer got his drug dog,
which alerted on the vehicle. The Court of appeals held that the
information the officer received contained no specific, articulable facts
suggesting criminal activity, the officer's observation of the passenger's
post-stop activities did not support the officer's hunch of illegal
activities, and the driver's nervousness without more did not establish
reasonable suspicion for continued detention.
Stop and Search -
Sufficiency of Motion to Suppress
McNeece v. State, A00A1598; 2000 WL 1673174 (Nov. 8, 2000)
In this DUI case, the trial court denied defendant's motion to
suppress and granted this interlocutory appeal. The trial court
first ruled that the motion to suppress did not meet the statutory
requirements of OCGA Section 17-5-30(b). The Court of Appeals said
that such motion is sufficient if it contains facts showing 1) the date of
the search, 2) the general location of the search, 3) the items seized, 4)
the fact that the search was conducted without a warrant, and 5) the
conclusion that the search was not supported by probable cause or
reasonable suspicion. The Court held that defendant's motion was
Next the Court of
Appeals ruled as "clearly erroneous" the trial court's
finding that the stop of defendant's white minivan, without more, was
Sentencing - Three
Does Not Equal One
Cox v. State; A00A0754, 2000 WL 343354 (April 4, 2000)
Defendant was convicted of DUI and three counts of vehicular
homicide. The trial court sentenced him to three consecutive
sentences on the vehicular homicide counts. On appeal, Defendant
contended that since the statute removed the intent element from vehicular
homicide cases, his multiple punishments could not be affirmed on the
basis that he intended multiple consequences from his single act of DUI.
The Court of Appeals, in affirming his sentence, noted that while the
stroke was one transaction, the multiple deaths constituted several
Hewett v. State; A00A0384, 2000 WL 640831 (May 19, 2000)
Defendant was convicted of a per se count and a less safe count of
DUI. At sentencing, the judge observed that the two counts were in
the alternative and gave defendant a single sentence. He failed to note
that one count merged with the other or that he was sentencing defendant
on only one count. The Court of Appeals held that since the trial
court neither merged the counts nor indicated which count the sentence
applied to, the sentence applied to both counts and was improper.
The appellate court said that as a remedy, it would simply vacate the per
se count and affirm the less safe count.
Speedy Trial -
State v. Davis; A00A0387, 2000 WL 486193 (April 26, 2000)
The Court of Appeals held that counsel's request for a continuance
and his consent to a reset of the trial outside the time allowed for the
speedy trial constituted a waiver of defendant's right to automatic
Speedy Trial -
Fisher v. State; A00A0515, 2000 WL 640836 (May 19, 2000)
Defendant filed a speedy trial demand. The trial was
scheduled for the last week of the second term of court (it was scheduled
for this week to accommodate Counsel's written request for leave of
absence the week prior to the scheduled trial week). Defendant filed
a conflict notice and ended up trying two cases in another court during
the week his speedy trial was to be tried. It was rescheduled to the
third term of court. Counsel filed a motion for discharge and
acquittal. The Court of Appeals held that by filing the notice of
conflict, he effectively consented to a delay of the trial if the case
were not reached due to the conflict.
Speedy Trial -Say
Bennett v. State A00A0898; 2000 WL 665479 (May 23, 2000)
Counsel for Defendant "REQUESTED" a jury trial pursuant
to OCGA § 17-7-170 (this code section is the speedy trial statute for
cases not involving a life sentence). The Court of Appeals has
previously held that if, among a list of other possibilities, the speedy
trial demand references the the above code section, that is sufficient
notice. Clearly this case referenced the Code Section. If this
case involved a proper speedy trial demand, Defendant would have been
entitled to a discharge and acquittal. The Court of Appeals, citing
to a case that never contemplated this situation (State v. Adamczyk, 162
Ga.App. 288 (1982)), held that a "request" is not a
"demand" and such language "is likely to mislead the
State." [DUIGUY Note: Apparently six years of elementary school, two
years of middle school, four years of high school, four years of college,
three years of law school, and a lifetime of experience and common sense
is insufficient for a prosecutor to figure out that defendant really
wanted a speedy trial. If only the Court would hold defense lawyers
to such a low standard.]
Speedy Trial -
The Court of Appeals Taketh Away
Price v. State A00A1577; 2000 WL 738880 (June 9, 2000)
Now, if a defendant files a single "Demand for Speedy Trial
by Jury Under OCGA Section 17-7-170", a subsequent withdrawal of a jury
demand serves also to withdraw the previous speedy demand in its
entirety. [DUIGUY Note: If you contemplate a possible withdrawal of a jury
demand without wanting to withdraw the speedy demand, you might need to
file two separate demands.]
Speedy Trial -
Hold on There Jeff Gordon
Lagyak v. State, A00A0891; 2000 WL 1146485 (August 15, 2000)
Defendant filed a speedy trial demand July 1, 1998, twenty seven
days before the accusation was filed. Held: demand for speedy trial was
OF THE EVIDENCE
of the Evidence- Not Much Interesting Here
Vanorsdall v. State A99A2081; 2000 WL 37732 (January 19, 2000)
Not much interesting in the sufficiency of the evidence.
The Appellate Court said that inability to pass field sobriety
tests, along with odor of alcohol, bloodshot and dilated eyes, and refusal
to take the state test were sufficient to convict of DUI less safe.
of the Evidence, Jury Selection
Kelly v. State A99A2001; 2000 WL 45686 (January 21, 2000)
odor of alcohol, poor performance on field sobriety tests, and speeding
through a stop sign authorized a conviction for DUI.
Furthermore, the trial court did not abuse its discretion in
overruling a defense motion to strike a juror for cause notwithstanding
that the juror initially expressed doubt regarding her ability to be
impartial. Apparently the
judge rehabilitated the juror and declined to strike the juror for cause.
of the Evidence
Goodson v. State A99A1932; 2000 WL 113919 (February 1, 2000)
An accident along with the odor of alcohol, bloodshot eyes, positive
alcosensor, six clues on the HGN field test, and the officer's opinion
that he was a less safe driver due to alcohol consumption is sufficient to
convict for less safe DUI.
of the Evidence
Goddard v. State A99A1858; 2000 WL 114294 (February 1, 2000)
Speeding, weaving, strong odor of alcohol, defendant's admission of having
three beers, a positive alcosensor, performance on field tests, and a .067
test for someone under 21 authorized a guilty verdict. [DUIGUY COMMENT: a
.02 is all that is required to convict a DUI if defendant is under 21.
However, standardized field sobriety tests, if properly
administered and properly scored, only give a probability that someone is
.10 or higher. Since the test
indicated only .067, I would strongly question the officer's ability to
administer and score these evaluations.
This case also points out the fallacy of the correlation of the
odor of alcohol to defendant's intoxication.
In this instance, a strong odor resulted in a .067.]
of the Evidence
O'Brien v. State, A99A1876; 2000 WL 146336 (February 11, 2000)
Weaving back and forth twice across two lanes before stopping
abruptly, then signaling and making a left turn, along with a strong odor
of alcohol, difficulty speaking, using the car door for support, failing
the Horizontal Gaze Nystagmus Test, and the officer's opinion that
defendant was less safe to drive due to alcohol consumption is sufficient
evidence to convict for DUI.
of the Evidence
Gilmore v. State, A99A2367; 2000 WL 198949 (February 22, 2000)
Defendant was convicted at bench trial of DUI and Failure to Yield
in violation of OCGA §
40-6-72(c). The evidence
showed that defendant was involved in a two-car accident on a rainy, foggy
afternoon. He also had a
strong odor of alcohol about his person. (See Goddard, supra.
regarding the strong odor of alcohol).
Defendant testified that he consumed about a half a pint after the
accident. He tested .131 on
the Intoxilyzer. The Court of
Appeals said that the odor of alcohol along with the accident was
sufficient evidence to convict. Also
on appeal, defendant contended that the Intox results had no probative
value since defendant testified that he drank half a pint of alcohol after
the accident. The Court of
Appeals said it was within the province of the trial judge sitting as
trier of fact to determine the credibility of the witness.
of the Evidence
Griffin v. State, A99A2403, 2000 WL 283689 (March 17, 2000)
Notwithstanding defendant's evidence at trial that her car had a
bad computer that caused the engine to skip and shut down while driving
thus resulting in a loss of power assists to steering and braking, and
notwithstanding safety recalls for struts that could cause the front end
to fall down and recalls for tire failure, the Court of Appeals held that
a head-on accident in which defendant's car was in the other car's lane of
travel, along with a blood alcohol test of .16 was sufficient to convict.
of the Evidence
Kersey v. State, A00A0445, 2000 WL 426447 (April 21, 2000)
For some reason the Court of Appeals upheld a guilty verdict where
the evidence showed that defendant failed to stop for blue lights, almost
rear-ended a police car that pulled in front of her attempting to stop
her, ran two stop signs, put her car in reverse after stopping and rammed
a police car, had an odor of alcohol, cursed the officers, threatened to
kick a hospital employee in the nuts, well you get the picture.
of the Evidence, Refusal
Fairbanks v. State, A00A0716, 2000 WL 554526 (May 8, 2000)
A witness testified that he saw defendant weaving before defendant
struck a guardrail. The officer detected an odor of alcohol and
asked for a blood test. Defendant said he wanted an attorney before
he took a blood test. The officer wrote it up as a refusal.
The Court of Appeals said that not only was defendant's refusal to respond
to the request for a blood test a refusal, this and the other evidence
taken together was sufficient to support a conviction for DUI.
of the Evidence
Deering v. State, A00A0483, 2000 WL 622600 (May 16, 2000)
The Court of Appeals found the following circumstantial evidence
sufficient to support conviction for DUI: an officer found defendant
in the driver's seat of an idling car, the car appeared to have been
recently parked (maybe this officer should rent himself out to the psychic
hotline), no other persons were on the scene, the usual under the
influence manifestations an open container, and cursing and screaming.
Sufficiency of the Evidence -
Diaz v. State, A00A1117; 2000 WL 1029118 (July 27, 2000)
Erratic driving, the odor of alcohol, poor performance on field
tests, admission of alcohol consumption, positive Alcosensor reading and
.089 reading is sufficient to convict for DUI.
Sufficiency of the Evidence -
Defendant was no Houdini
Brockington v. State, A00A1641; 2000 WL 1154337 (August 16, 2000)
The State's witness testified that after the collision, he saw
defendant attempting to slide from under the steering wheel, that as he
spoke with her, she slid over to the passenger side and the passenger got
into the driver's seat. Defendant stipulated that if she had been driving
she would have been less safe. The court held the evidence to be
sufficient to convict.
Sufficiency of the Evidence -
Chalk One Up for the Good Guys
Peck v. State, A00A1498; 2000 WL 1170099 (August 18, 2000)
Defendant was convicted of DUI less safe. No one saw him drive.
Notwithstanding the fact that his truck was found off the roadway in the
bushes with some damage, the Court of Appeals said because no evidence
existed as to the manner of driving or ability to drive, evidence to
convict for DUI was insufficient.
Sufficiency of the Evidence et.
Hunt v. State, A00A2054; 2000 WL 1724953 (November 21, 2000)
This case deals with several issues including 1) sufficiency of
the evidence; defendant rear-ended a car stopped at a red light not once
but twice, he fled the scene, smelled of alcohol, unsteady etc., and
purportedly refused to take the state test; 2) trial court's denial of
defendant's request to allow the jury to test the Intoxilyzer 5000; and 3)
admission of defendant's refusal. The Court of Appeals affirmed the conviction.
Sufficiency of the Evidence et.
Evans v. State, A00A0094; 2000 WL 1737804 (November 27, 2000)
Evidence of driving was sufficient. Moreover, notwithstanding the
fact that the accusation said she committed the offense one day before it
was actually committed, the court cited the general rule that if the exact
date of the crime is not a material allegation, the crime may be proved to
have taken place on any date prior to the filing of the accusation so long
as the date is within the statute of limitations.
Due Process - You
Must Preserve Your Rights
Griffin v. State, A99A2403; 2000 WL 283689 (March 17, 2000)
In this vehicular homicide case, defendant apparently opted in
under the felony discovery statutes. Several months prior to trial,
defendant moved for an order directing the state make available the
vehicles involved in the accident as well as defendant's own blood sample.
At the hearing on the motion, the prosecutor denied the whereabouts of the
vehicles. The prosecutor offered to call the police department and
the hearing was concluded without a ruling. At trial, Defendant
adduced evidence regarding the disposition of defendant's vehicle.
On appeal, defendant claimed a due process violation because of the police
failure to preserve the potentially exculpatory evidence including
defendant's vehicle and blood sample. Noting that the trial court
did not rule on either item, the Court of Appeals held there was nothing
for it to review.
Due Process -
Appellate Review of License Suspension
Miles v. Shaw 272 Ga. 475 (June 12, 2000)
Defendant's license was suspended for attempt to elude. Defendant
asked DPS for appellate review. DPS reviewed the suspension without
defendant's presence at the hearing since it could do so on the face of
the request. Defendant then appealed to the Superior Court claiming denial
of due process because he was not allowed at the DPS review. The Superior
Court agreed with defendant but the Court of Appeals said defendant was
not denied due process since a full de novo hearing including
defendant's presences was available in the Superior Court after the DPS
Due Process -
Urine Sample Destroyed
State v. Blackwell, A00A0073; 2000 WL 973603 (July 14, 2000)
Defendant was stopped for a traffic violation and charged with
DUI. Three days later his probation officer tested Defendant's urine
for drugs. The test was negative. The sample was sent to the crime lab and
it tested positive for drugs. Defendant was charged with drug possession.
He requested an independent analysis of the sample and the trial court
granted the motion. The prosecutor attempted to facilitate the test with
the state crime lab but was informed the sample had been destroyed.
The Court of Appeals upheld the trial court dismissal of the case due to
the fundamental unfairness of the denial of defendant's right to analyze
the urine sample.
Keller v. State A00A0447; 2000 WL 97970 (January 31, 2000)
Defendant was convicted of DUI, given a two year sentence, but allowed to
remain free on bond pending appeal. Immediately
after this trial, he appeared in another county for another DUI trial and
disappeared in the middle of trial. Within
two weeks of his first trial in which the appeal was pending, the first
trial court dismissed his appeal. After
being picked up two years later defendant still had done nothing to reopen
his appeal. The Court of Appeals found that, under the circumstances,
defendant by his own actions forfeited his right to appeal.
Ga. Dept. of Public Safety v. Schueman; A99A2465, 2000 WL 302698
(March 24, 2000)
The Court of Appeals construed OCGA Section 40-5-75 as it pertains
to multiple suspensions for Violation of the Georgia Controlled Substance
Act (drugs). In ruling against the "suspend every license for
as long as possible" mentality at the Ga. Dept. of Public Safety, the
Court of Appeals said that with respect to a first conviction of the drug
statute, defendant must wait 180 days before applying for reinstatement.
In the event of a second VGCSA conviction while the first suspension is in
effect, defendant can make application for reinstatement after one year.
The 180 day suspension will run consecutively to the one year suspension
for a total minimum one year plus 180 day suspension, not the four plus
year suspension the DPS argued for.
Probation - Good
Hutchins v. State, A99A2355; 2000 WL 320721 (March 29, 2000)
Defendant was sentenced to twelve months probation with the first
120 days in confinement. He received 60 days good time credit and
was released after serving 60 days. The trial court said the 60 days
credit for good time must be served on probation in addition to the six
months remaining on his probated sentence. The trial court was
No Proof of
Insurance v. No Insurance
Thompson v. State, A00A0680; 2000 WL 426449 (April 21, 2000)
Attorneys, if you want to read an interesting case involving
appellate construction of OCGA Section 40-6-10, check out this case.
Brice v. State A99A1909; 2000 WL 114513
was convicted of DUI. During
opening statement, during cross-examination, and during direct examination
of defendant, counsel for Defendant invoked the name of Craig Snell.
After defendant rested his case, the prosecutor called Craig Snell
in rebuttal. After Mr.
Snell's testimony, the prosecutor called Sheriff Knight to impeach Snell
with a prior inconsistent statement.
Counsel for defendant objected on the basis that neither witness
was on the list of witnesses demanded by defendant.
The Court of Appeals held that since the first time the prosecutor
had notice of Snell as a witness was when Defense Counsel invoked his
name, Snell was a newly discovered witness and could be called in
rebuttal. The Court also said
using Sheriff Knight to impeach Snell with a prior inconsistent statement
Jackson v. State, A00A0522; 2000 WL 759301 (June 13, 2000)
After trial, the judge's policy was no first offender treatment
ever. The Court of Appeals said that a judge's refusal to exercise
discretion is an abdication of judicial responsibility.
Should Read this Decision
Lyons v. State, A00A0501; 2000 WL 767990 (June 15, 2000)
Trial judges often look to appellate cases for guidance. Nothing
wrong with that as far as it goes. However, judges that rely solely on
appellate decisions without closely scrutinizing the facts of every case
is guilty of looking through the wrong end of the microscope. If ever
there was a case that should not be used as an example for the exclusion
of evidence, this is the case.
In Lyons, the officer's
credibility was of paramount importance in deciding whether or not
reasonable suspicion existed. It is clear from the appellate court's
opinion that it did not find the arresting officer's testimony credible at
all. Nevertheless, notwithstanding the "inconsistencies and
mischaracterizations which make his [the arresting officer] behavior
suspect", the Court of appeals noted that it is not free to
substitute its judgment for the trial court's determination that the
officer was credible.
It should be noted that the Court of
Appeals exhorted trial courts to closely scrutinize the facts of every
Right to Remain Silent - Even at
Fuller v. State, A00A0284; 2000 WL 815649 (June 26, 2000)
Just by entering a plea of guilty or nolo contendere, a defendant
does not give up his right to remain silent at a sentencing hearing.
In the Interest of J.E., a child, A00A1405; 2000 WL 1234062
(September 1, 2000)
Can a judge take judicial notice that Peachtree City is in Fayette
County? If the judge does not announce his intentions on the record to
take judicial notice of that fact, venue has not been proved.
Special Demurrer - Perfect in
Form and Substance
State v. Jones, A00A2556; 2000 WL 1477043 (October 6, 2000)
Court of Appeals upheld trial court determination that defendant's
special demurrer should have been upheld since the two counts charging
defendant with attempt to elude since the accusation failed to charge the
manner in which the crime was committed. [DUI Guy Note: The prosecutor
must now redraft the accusation, if the statute of limitations has not
Probation Cannot be Used for Recidivism
Davis v. State, S99G1723; 2000 WL 1568641 (October 23, 2000)
A defendant who is serving a first offender probated sentence for
a violent felony, and who commits another violent felony while on first
offender probation cannot be sentenced as a recidivist.
and Funds for an Expert
Carnell v. State, A00A2322; 2000 WL 1577618 (October 24, 2000)
This vehicular homicide case sets out requirements for public
defenders applying for funds to have an independent expert. The motion
must state 1) why examination of the evidence is critical, 2) what
testimony is necessary, 3) what the expert proposes to do with the
evidence and 4) the cost estimate.
Transaction - Remand for Hearing
Himmel v. State, A00A1489; 2000 WL 1721100 (Nov. 20, 2000)
Defendant was convicted of vehicular homicide, reckless driving,
and serious injury by vehicle. Defendant had epilepsy and had been
involved in three prior accidents while suffering seizures. In his
opening statement, the prosecutor told the jury about defendants prior
history. No notice of intent to use similar transactions was
given. The Court of Appeals held that admission of this evidence was
not harmless error and remanded to the trial court for a hearing on the
similar transaction issue. If the trial court rules the priors
inadmissible, defendant is entitled to a new trial. If it rules that
the priors are admissible, the sentence will stand (except for the
sentencing on the reckless driving, which charge merged with the greater
offense of homicide by vehicle).
Relief - Recorder's Courts
Smith v. Gwinnett County, A00A1054; 2000 WL 1724931 (Nov. 21, 2000)
Defendant appealed a conviction in the Recorder's Court of Gwinnett County
to the State Court of Gwinnett County. The Court of Appeals ruled
that no authority exits granting the State Court jurisdiction to consider
a petition for writ of certiorari from a Recorder's Court (keep in mind
that such authority exists for a conviction in Magistrate Courts).
Moreover, since the judgment on the matter in the State Court was not
within that Court's jurisdiction, its judgment was void and defendant did
not waive his opportunity to challenge the Recorder's Court judgment in
the proper forum (the county Superior Court).
Probation Revocation - First
Bliss v. State A00A0209; 2000 WL 674776 (May 24, 2000)
Defendant's probation officer filed a petition to revoke first
offender status since defendant was convicted of suspended license and
possession of marijuana. Pursuant to language of Mohammed v. State,
226 Ga.App. 387 (1997), believing it had no discretion because of the
afore-mentioned conviction, the lower court adjudicated defendant guilty
and sentenced him as a felon. Backing off the dicta contained in
Mohammed, the Court of Appeals found that the language of Mohammed relied
upon by the lower court was too broad and deprived the trial court of its
discretion to revoke or not revoke first offender status.
Probation Revocation - Special
McCoy v. State, A00A1276; 2000 WL 1639597 (Nov. 2, 2000)
Defendant was placed on probation for seven years. Approximately a
year later he was arrested for violating his probation (fail to pay fine,
fail to complete community service, driving without a license, no proof of
insurance, and driving in HOV lane). The court found that he violated
special conditions of probation within the meaning of OCGA Sec.
42-8-34.1(c) (see Glover
v. State 239 Ga.App. 155 (July 16, 1999)
). Without much fanfare regarding 42-8-34.1(c), the
Court of Appeals held that since the revocation court found that defendant
did not meet the criteria for alternatives to confinement under 42-8-34.1(b),
the revocation court was only authorized to revoke two years
an interesting collateral matter, the Court of Appeals rebuked the
prosecutor for waiting 43 days after defendant's arrest before filing the
petition to revoke and getting him before the court. Nevertheless,
since defendant did not raise a due process violation in the revocation
court, he was precluded in doing so on appeal.
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