2000 Appellate Decisions
Appellate Court Spin on Georgia DUI Law. Complete With DUI Guy Comments.
By J. Michael Mullis, Attorney at Law, The DUI Guy
Georgia DUI Lawyer 1-877- 638-4489 (Toll Free - 24 Hours)
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Year 2000 Georgia DUI Law
Case Law Synopsis

CLICK HERE TO READ THE COMPLETE AND UP-TO-DATE VERSION OF GEORGIA DUI LAW IN PLAIN ENGLISH

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NO NEW 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.  CLICK HERE TO GO TO THE 2001 APPELLATE DECISIONS PAGE.

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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 CONTACT ME WITH ANY HELPFUL SUGGESTIONS OR CRITICISMS.

J. Michael Mullis
The DUI GUY
Georgia DUI Lawyer

Last Updated: November 29, 2000

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ARTICULABLE SUSPICION/PROBABLE CAUSE
DOUBLE JEOPARDY
EVIDENCE 
IMPLIED CONSENT
INTOXILYZER 5000
JURY ISSUES
MIRANDA RIGHTS
ROADBLOCKS (Hot US Supreme Court Case)
SEARCH
SENTENCING
SPEEDY TRIAL
SUFFICIENCY OF THE EVIDENCE
DUE PROCESS
OTHER CASES  
PROBATION

The Headlines of Important Cases  Are Green

ARTICULABLE SUSPICION/PROBABLE CAUSE

Articulable 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 traffic stop.

Articulable 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.

Articulable 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 defendant.  Defendant 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.

Articulable 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.]

Articulable 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. 

Articulable 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.

Articulable 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.

Articulable Suspicion - Stop and Search
Florida v. J. L., 98-1993 Supreme Court of the United States (March 28, 2000)
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 and frisk.

Articulable Suspicion
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 will stand.

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 Your equipment
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 contraband.

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 Here
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, 2000)
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.

 

DOUBLE JEOPARDY

Double Jeopardy-Mistrial
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.

Double Jeopardy
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 Proper
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 Improper
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

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?]

Evidence - 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 Violation
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.

Evidence - Discovery
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).

Evidence - Discovery
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.]

Evidence - Continuing Objection
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 night"?

Evidence -Discovery
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 proceeding.

Evidence - Quash That Subpoena
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 by law.

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.

IMPLIED CONSENT

Implied 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.

Implied 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.]

Implied 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?

The Court of Appeals cites to the "close in proximity" language of PeranoPerano 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

Intoxilyzer 5000 - BUI Case With DUI Implications
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 Casey
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 suppressed.

Independent Test - Pick Your Own Hospital
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 defendant's request.

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 ISSUES

Jury Charges - Harmless Error
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 charge.

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 Cause Here
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

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.

ROADBLOCKS

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.

Roadblock - 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 vehicle.

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 level."

[DUI Guy Note: This case adds another element to the State's burden in proving the validity of the roadblock; i.e.  the "programmatic" intent of the roadblock.]

The following is another perspective provided by my buddy and DUI lawyer extraordinaire, Dave Clark in Lawrenceville, GA:

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 approving of
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 dclark@clarktowne.com or log onto his website at www.clarktowne.com

SEARCH

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 such excesses."]

Search - Illegal Detention
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 Illegal Detention
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.

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 Illegal Detention
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 sufficient.

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 legal .

SENTENCING

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 criminal transactions.

Sentencing - Alternative Counts
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

Speedy Trial - Waiver
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 discharge.

Speedy Trial - Another Waiver
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 What?
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 premature.

SUFFICIENCY OF THE EVIDENCE

Sufficiency 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. 

Sufficiency of the Evidence, Jury Selection
Kelly v. State A99A2001; 2000 WL 45686 (January 21, 2000)

The 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.

Sufficiency 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.

Sufficiency 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.]

Sufficiency 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.

Sufficiency 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. 

Sufficiency 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.

Sufficiency 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.

Sufficiency 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.

Sufficiency 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 - Standard Ruling
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. al.
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. al. again
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

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 review.

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.

OTHER CASES

Appeal Dismissed
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.

Driver's License Suspension
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 Time Credit
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 wrong.

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.

Rebuttal
Brice v. State A99A1909; 2000 WL 114513
Defendant 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 was permissible.

First Offender Treatment
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.

Judges 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 case.

Right to Remain Silent - Even at Sentencing Hearing
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.

Judicial Notice
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 run.]

First Offender 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.

Public Defenders 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.

Similar 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).

Post Conviction 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

Probation Revocation - First Offender
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 Conditions
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 maximum.

In 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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