Drunk Driving Cases
Attorney William C. Head

Case 21
State v. S.M.
Municipal Court of Marietta
Marietta, Georgia

After a particularly exhausting day at work, S.M. went home and took a nap until 10:45 p.m..  S.M. was originally from India, and was working in the United States on a work visa.  Later that evening a friend came over to his house and they drank some wine.  They left home and went to Wal-Mart for a few minutes.  When leaving Wal-Mart’s brightly lighted parking lot, S.M. didn’t realize he had forgotten to turn on his headlights.

S.M. and his friend were looking for an ATM machine while on their way to Cub Foods for some late night snacks.  Due to not being familiar with the area, he was driving hesitantly, using his brakes a good deal of the time.  The street was also well illuminated, so S.M. didn’t realize his headlights were off until he saw a Marietta Police Officer behind him.  S.M. turned his lights on when he saw the blue lights, and pulled into the turn-only lane of Cobb-Parkway.

The officer retrieved S.M.’s license and insurance card and asked S.M. to get out of the car.  S.M. apologized to the officer for not having his lights on, and the officer immediately asked him if he was drunk.  S.M. replied “no but…I had 3 glasses of wine.”  The officer then administered the Alco-sensor breath device, the heel-to –toe test and then asked him to recited his alphabet from A to Z.  This was done in the center lane of Cobb Parkway with traffic going by in both directions.  S.M. was handcuffed and arrested for DUI.  S.M.’s friend was not comfortable driving this car with a manual transmission, so S.M. had the officer take $20 out of his wallet so she could take a cab home.  S.M. was taken to the police station.

The officer gave S.M. another field test, the horizontal gaze nystagmus test, at the station.  This should have been performed at the site to help establish probable cause for arrest.  S.M. then took the Intoxilyzer 5000 breath test at the station, giving two samples.  His results were 0.163 and 0.157 grams %.

Despite having no videotape in this case, our investigation of the case led to numerous defenses in the case.  Under cross-examination at the trial, we proved that S.M. was not properly read his “implied consent” rights.

S.M. had a gastric condition that has been proven to cause inaccurate readings on state-administered breath tests.  We also pointed out that the officer failed to give S.M. proper instructions for the “walk and turn” field sobriety test.  Although detailed instructions are mandated,  S.M. was merely instructed to walk heel to toe for 13 paces.  Furthermore, at trial, we were able to show that S.M.’s rights were not properly read to him, resulting in exclusion of the .163% and .157 % blood alcohol content test results.

At the conclusion of the bench trial, S.M. was found not guilty of the DUI charges.  He was found guilty of weaving and paid a fine of $108.00.  Also, prior to trial, we had admitted his lack of headlights and pleaded “no contest” to this offense ($84.00 fine).

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