Case 27
State v. T.M.
Fulton State Court
Atlanta, Georgia

TM, a traveling sales representative, had a single car collision
shortly before midnight. He hit an I-20 guard rail on his eastbound trip to
Atlanta from Alabama. He pulled off at the next exit, Fulton Industrial
Boulevard, to assess the damage. It was severe, and the front bumper was
dragging. As the car limped into an industrial park occupied by three strip
clubs, a security guard heard the dragging bumper, and came over to his car
to see what was going on.

The client told him that no other car was involved, and that the police need
not be called. The client unsuccessfully tried to go inside the nearest
strip club, for a beer. The guard said "No way, you are drunk already."

As soon as the next cop passes by, the guard hails him down, and a DUI
investigation ensues. TM later took the State's test, which revealed
0.154/0.162 BAC. Magwood of State Patrol handled the arrest after he was
called to scene by a Fulton County deputy. A video of the field tests
showed a generally poor performance. TM admitted having 4 beers
"earlier", with no other elaboration. The video showed 7 beers, cold and
wet, being taken from the wrecked vehicle.

While seated in the rear of the patrol car, TM gave a spontaneous "mea
culpa" statement to Magwood, who left the video running all the way to jail.

A speedy trial demand was filed, which put the case on a quick calendar. We
opted for a bench trial with Judge Myra Dixon, reserving all motion issues
for the trial portion of the case. Jeopardy attached, and trial began. The
state had 4 witnesses (the guard plus 3 police officers). We put up no
witnesses.

Our key issues were "timing" of implied consent. No one proved an exigent
circumstance to justify the long delay in reading these rights.
Furthermore, the Fulton deputy had put TM in the rear of his patrol
car for over an hour, uncuffed. We successfully argued "custody", and no
Miranda rights. All field tests and the video of same were excluded by
Judge Dixon.

Not guilty on both DUI counts. 0.154/0.162, accident case. The "no proof
of insurance" charge was nol prossed by Assistant Solicitor Murray prior to
trial.

TM was represented by GACDL Life Member, William C. (Bubba) Head of
Atlanta.

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