Drunk Driving Cases
Attorney William C. Head

Case 18
State v. K. B.
State Court of Fulton County
Fulton County
Atlanta, Georgia

K.B., a 21 year old student, was driving his third passenger home at 4:25 AM on November 29, 1997 after having dropped off two other friends at their homes. K.B. had been the "designated driver" (he was supposed to moderate his consumption). As he proceeded to the home of the last passenger (who was passed out drunk), he was unfamiliar with the roadway leading to his home, having never approached from that direction. Seeing the turn at the last minute, he attempted to veer to the left at a speed too great to negotiate the maneuver. He sideswiped a telephone pole, flattened a brick mailbox, and then came to rest against a tree in the front yard of the home located at the intersection.

K.B. and the passenger got out and tried to silence the horn, which was blaring. Neither was seriously injured thanks to dual airbags and seat belts in the vehicle. The two of them then jogged over to the friend’s house some 300 yards away. There, K.B. called his mother and father and told them he "had a wreck and tore his car up" and asked how to stop the horn from blaring and waking up the neighborhood. No mention was made that he had been drinking or that he was at all concerned about being under the influence. The parents told him to return to the scene and wait there for them. The parents immediately dressed and came to the scene, arriving just as the police officers arrived and began giving K. B. field tests.

After attempting the field tests, K.B. was arrested. He was later tested on the Intoxilyzer 5000 breath testing device and had readings of .146 and .147 at 5:44 AM. With no videotape available to demonstrate the actual implied consent advisement, the officer carefully read the implied consent advisement on the witness stand perfectly, and swore that he had read it in that same slow, deliberate manner on the night of arrest. Hence, no challenge to the accuracy of the advisements was made. In fact, no objection to the two test results was asserted at all.

However, after the close of the State’s case, both of K.B.’s parents testified about what they observed and heard at the scene. Their opinions concerning K.B.’s sobriety countered the two police officers’ opinions that Defendant was impaired. They had also taken photos of the scene the next day and identified these photos of the sharp curve, lack of signage and the roadway conditions. Also, Dr. Richard Jensen of Minneapolis was qualified as an expert on the Intoxilyzer 5000, and in the field of analytical chemistry. He gave expert testimony about the possibility of interference with the breath test results due to talc and other powdery substances being deployed and inhaled by the driver when the airbag deployed during the accident. He opined that an alternative test (blood or urine) should be utilized when airbags have deployed so that the "interference" from suspended particles would not compromise the breath test results. The Defendant did not testify.

After a lengthy bench trial, Judge John Mather found Defendant not guilty of both the per se and the less safe DUI charges. There was no charge of "too fast for conditions". The "lane violation" charge also resulted in a not guilty verdict based on the lack of any skid marks and the presence of copious amounts of pine straw along the roadway. (An expert on accident reconstruction also testified about the likelihood that the straw would have contributed to the car losing traction and leaving no skid marks).

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