Driving Cases
Attorney William C. Head

Case 6
State v. J.M.
DeKalb State Court
Decatur, Georgia

Defendant was charged by a Doraville officer with speeding, weaving and DUI. This offense was a fourth lifetime, third in five years. The case was set for trial and motions heard while the jurors took a lunch break in the middle of voir dire.

Defendant was reported by the arresting officer to have failed all field tests. He took an Intoximeter 3000 test and rendered a 0.22 BAC. This result was excluded under Causey v. State, however.

The "stop" and subsequent field tests were video taped. The Defendant performed fairly well, but the video revealed a key fact. No Miranda advisements were ever given to Defendant. This became important at pre-trial motions.

The video also revealed another key fact. After the arresting officer administered the HGN test, he asked the Defendant to perform the walk-and-turn test. As Defendant completed the first 9 steps, the officer was seen on video radioing his department the following: "10-51 my location". The "10" call was a request for wrecker, which arrived at about the same time Defendant was being handcuffed.

Utilizing cross-examination of the officer prior to the video tape being played at the motion hearings, the defense had established (1 ) that the officer had not been NHTSA trained (or trained on field tests any other way except observation) on the proper way to administer an HGN test. Since the arrest, he had obtained the NHTSA training, and testified that he "now did it properly". This field test was excluded from evidence. (2) The officer had admitted that he did not gather sufficient proof of impairment of Defendant to arrest him until after all field testing was done. He specifically stated that he "would not have" arrested the Defendant until at least after the walk-and-turn, and probably not until after all testing.

The trial court ruled that the officer never developed sufficient probable cause to arrest for DUI due to exclusion of the HGN results and exclusion of all field test evidence gathered by the officer after the "10-51" call was made. The court relied upon State v. Whitfield 214 Ga. App. 574, 448 S.E.2d 492 (1994) to exclude any non-Mirandized field tests which occurred after "custody" was manifested by virtue of the radio call for a wrecker.

After the DUI charge was eliminated, Defendant pleaded guilty to speeding and paid a fine. The jury was never sworn or impaneled.

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