Drunk Driving Cases
Attorney William C. Head

Case 4
State v. D.P.
Dekalb State Court
Decatur, Georgia

Defendant, an Emory University student from California, was charged with speeding, driving left of center and DUI (less safe). The incident occurred at 2:00 a.m. on Clifton Road, directly in front of the hospital. The case became heavily involved with questions of the admissibility of field sobriety tests, especially where the subject had a BAC of less than 0.10% (the level at which NHTSA tests have a correlation to sobriety or lack of sobriety). The trial judge let the testimony about the defective field tests in. Despite the officer testifying that he learned certain tests in the NHTSA course, the judge was initially inclined to grant the Solicitor's pre-trial motion in limine that NO REFERENCE to "NHTSA" standards be made in the case. This order was vacated when NHTSA FST expert Rick Swope testified at a later "proffer" hearing, establishing that every state had adopted NHTSA, including Georgia. The officer had been through the NHTSA certified training, yet chose not to follow this training in his method of scoring the tests, method of instructing the tests, and the failure to demonstrate the tests. Upon my request that he fully demonstrate the tests, he declined to get up and do them. The judge even asked him to "try", and he still politely declined. All credibility for the tests as being a valid indicator of sobriety evaporated with this failure to perform.

The officer had obtained a test result of 0.08% on a breath test. However, the implied consent advisement was defective, and a decision on whether to exclude the test results had to be made. The assistant solicitor moved to exclude the results at the pretrial motion hearing, and, after some reflection, we agreed to this motion. At trial, the defense called Rick Swope, an expert witness on field sobriety testing and breath/blood testing from Davie, FL for two purposes: (1) to listen to and observe the officer on field sobriety testing, and to testify that the tests given Defendant were "invalid" because of departure from NHTSA guidelines; (2) to use retrograde extrapolation to establish the "range" of alcohol (between .05% and .08% at the time of arrest), based on body weight, food intake, time and quantity consumed. Once the defense had put up Swope and the Defendant, the State moved unsuccessfully to introduce the previously excluded 0.08% reading on the Intoximeter 3000, as rebuttal evidence. The trial judge denied the request primarily due to the fact that Swope's testimony covered the range of 0.08%, so no impeachment or rebuttal was authorized. The two day trial resulted in a not guilty verdict on the DUI charge, and guilty on the other two traffic offenses.

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