Drunk Driving Cases
Attorney William C. Head

Case 5
State v. F.B.
Gwinnett State Court
Lawrenceville, Georgia

Defendant, a staff sergeant in the U.S. Marine Corps, went out "on the town" with another marine who was temporarily assigned in Atlanta. Per his friend's request, on St. Patrick's Day Defendant took him to a club to meet some people and have a good time. Following an exhausting twelve-hour day at work and fast dancing for about four hours, Defendant collected his friend and left for home at 3:00 A.M.. After making some minor repairs to his truck, Defendant drove north from Buckhead on Interstate 85 while his passenger curled up and slept. After about twenty miles, Defendant momentarily nodded off at the wheel and awoke just before striking an abandoned car parked in the right emergency lane.

Officer T.W. Smith of the Gwinnett County Police, who was using stationary radar about 500 feet ahead of the vehicle, observed the accident in his rear view mirror and arrived on the scene immediately. He found Defendant outside the car assisting the passenger, who had hit his head on the windshield and was bleeding but was not seriously injured. Smelling alcohol on Defendant's breath, DUI Task Force Officer Smith asked about alcohol consumption and Defendant replied that he had had a "couple of beers" a couple of hours earlier. Defendant was able to perform the physical field sobriety tests, including the one-leg-stand for 46 seconds (he intentionally went further than "30" to try to prove his sobriety), although the officer testified that Defendant "failed" these and the "ABC" test. Defendant was asked to take the official breath test, then arrested and charged with two counts of DUI, failure to maintain lane, operating without license in possession, no insurance, and no proof of insurance. The hand held breath test rendered a 0.12% result.

After taking the official test and again rendering a 0.12% result, Defendant requested an independent blood test and was taken in handcuffs to the hospital emergency room. Although he did not have the $105 cash for the blood test, he did have his ATM card. The arresting officer did not suggest to Defendant to use the ATM machine located in the hospital or allow him to wait for someone to bring the money for the test to the hospital. Based on these facts, in a preliminary hearing the court (Hon. Robert Mock) granted the Defendant's motion to suppress the state's official breath test results.

The case proceeded to jury trial without the "per se" count. Under direct and cross examination at trial, Defendant revealed he had consumed three beers over a four-hour period and felt no effects from the alcohol when he left the club. After testimony that the missing documents had scattered in the car upon impact, the court directed a verdict of acquittal for the Defendant on all charges relating to "no insurance" and driving without a license. The jury found Defendant guilty of the lane violation and acquitted of DUI. Unfortunately, the week before trial, the U.S. Marines terminated Defendant after 12 years of service, based entirely upon this incident.

He was fined $50.00 for the lane violation, with no other penalty assessed.

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