Drunk Driving Cases
Attorney William C. Head

Case 12
State v. D.M.
State Court of Clarke County
Athens, Georgia

Defendant, a 21-year old Florida resident who attended Clemson University, was stopped in Downtown Athens after the 1994 Georgia-Clemson game. The reason for the stop was "no tag on vehicle". His temporary tag on the new car had fallen down in the rear window and was not visible.

Defendant fully cooperated with the officer, and was exceedingly polite to the officer. The officer, a University of Georgia police officer with marginal training on field sobriety tests, admitted that he had learned field tests from another officer whose grasp of field testing was poor, at best. The three tests given included saying the alphabet from "F" to "F" (yes, start with "F", go to the end and start over and go back to "F"), a finger count test wherein the five fingers of one hand were supposed to be counted by touching the fingertips of all five fingers twice, and a walk & turn-type test, with about half the proper instructions and a defective demonstration.

The officer opined that the Defendant failed all of his tests, although he admitted that he had no particular scoring system, other than his own general, subjective perception of performance by Defendant. He was particularly tough on counting off for alleged manifestations of impairment which he had not instructed Defendant were part of these tests. The officer also verified that Defendant had reported "bad knees" from previous soccer injuries.

Because Defendant wanted to call someone to decide whether to take the official sobriety test, and was refused permission to do so, he refused to submit to breath testing.

After unsuccessfully arguing for exclusion of the refusal at the motion hearings in 1995, the defense asked for review of this decision when the case came up for trial in June of 1996. The basis for exclusion was (a) that the implied consent advisements were deficient due to not advising the Defendant, as a non-resident licensee, that his privileges to drive "AT LEAST" in the State of Georgia would be impacted by his decision to be tested or to refuse under the implied consent law {State v. Coleman, 216 Ga. App. 598 (1995) and State v. Renfroe, 216 Ga. App. 709 (1995)], and (b) in October of 1994, the portion of the warning which threatened that if he submitted to testing and the results indicated a BAC of 0.10% or more, his "license or privilege to drive may be suspended for a minimum period of one year" was factually incorrect inasmuch as Defendant had no prior DUI convictions, and that prior to January 1, 1995, the advisement given was only applicable to repeat offenders. The judge, Kent Lawrence, excluded the refusal.

At trial, the defense called Defendant's friend, a 22-year old female friend from his high school in Florida. She had been with him the whole evening, and testified that he had no alcohol from about midnight until the traffic stop at 4:32 A.M. This was partly due to Athens' early closing time. Defendant also testified in the case, and indicated that from 6:00 P.M. to midnight, he had 5 drinks, with no other alcohol when they went to the 40 Watt Club to dance after leaving the bar where they had eaten. We also brought in Bill Taylor, a Georgia expert on field testing who testified that the officer's homemade field tests were totally meaningless, and unreliable to prove sobriety or lack of sobriety.

The jury deliberated for 35 minutes before returning a not guilty verdict on the DUI.

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