Driving Cases
Attorney William C. Head

Case 11
State v. J.G.
Superior Court of Lumpkin County

Defendant, who was 21 years of age at the time of arrest, was charged with DUI and speeding based on radar (77 in a 55). Defendant had two passengers with him in the car, both underage females, age 19. The Defendant had a "Blow-pop" sucker in his mouth when stopped, which the officer immediately attributed to "trying to mask the smell of alcohol". The arresting officer was the most experienced police officer in the Sheriff's Department, having arrested between 1500 and 2000 DUI suspects. The officer was supervisor of the DUI Task Force, and had attended NHTSA training.

The field tests were all allegedly failed by Defendant, and the Alco-sensor also showed positive for alcohol. An Intoximeter 3000 test of 0.17% had been excluded from the State's case-in-chief by stipulation, due to faulty implied consent results.

The State put up its case and the prosecutor omitted reference to any of the numerous positive factors shown in the police report and field sobriety scoring sheets. This offered dramatic contrast when cross-examination began. The officer admitted to not asking any significant screening questions about the Defendant's health (before starting field testing) other than "do you have any problem with your eyes?" and "do you have any knee or ankle problems?". The officer also admitted that he did not adhere to the NHTSA scoring method and "clues", because he had done so many cases that he "just got an overall impression" and made his decision to arrest.

The defense case relied virtually entirely upon the testimony of one of the two passengers, who admitted to drinking alcohol (two beers between noon and 3:00 P.M.) while being underage on the day in question. The second passenger had only been in the car (and only with Defendant) for some 40 minutes, and was scheduled to testify until her vehicle was rear ended by a car on the evening of the first day of trial. She was medically unable to return to testify. The trial judge refused to tell the jury why she was not back to testify (beyond saying that she was unavoidably not going to be able to come to court). Further, the trial judge refused to recess at 2:45 P.M. of the second day to let her try to come in the next morning.

Our one witness testified as follows:

( 1 ) She and Defendant formerly were boyfriend and girlfriend in high school, but were (at the time of his arrest) just good friends;
(2) The plan for the day in question was to meet with a group of friends to go "rock climbing", and Defendant was driving in from college in Tennessee to join them;
(3) That she only saw Defendant consume one beer all day, from 2:30 P.M., when he arrived from Tennessee, and that Defendant had only been out of her sight for about 30 to 60 minutes during the time period from 4:00 P.M. to midnight (when he was arrested), except to go to the bathroom;
(4) That she had given him a hug when he arrived from Tennessee, and that he had no odor of alcohol on his breath upon arriving;
(5) That the entire group climbed up a sheer 900 foot high granite outcropping known as Mt. Yonah and rappelled down it between the hours of 4:00 P.M. and 7:30 P.M., and Defendant had no difficulty performing any of the dangerous maneuvers;
(6) That she conversed with Defendant extensively all day and all evening, and noticed no slurred speech, unsteadiness on his feet or giddy behavior;
(7) That Defendant had ADD (attention deficit disorder) that pre-dated this incident, and took Ritalin;
(8) That he had driven down dark, winding, mountain roads and over long distances exceeding 125 miles without any difficulty, other than he was occasionally speeding, which (she testified) he was prone to do;
(9) That the officer told Defendant while he was still sitting in the driver's seat and prior to any field sobriety tests that "he was going to jail".

After the defense rested, the prosecutor asked the court to permit introduction of the previously excluded 0. 17% test result, "for rebuttal". We objected, based upon the fact that (a) Defendant did not testify, (b) our single witness was only a fact witness who told what she knew and observed, and had not been with him all day, (c) no previous Georgia case permitted such rebuttal of a fact witness when the defendant had not "opened the door", (d) because the test result was coming in on rebuttal, it would appear to the jurors that the defense had not been honest with them, and (e) a change in Georgia law [O.C.G.A. § 40-6-392 (a)(l)(A)] had made test results on the Intoximeter 3000 inadmissible. The argument was to no avail, as the State was permitted (in rebuttal) to introduce not only the breath test result, but also testimony from a so-called State expert on the effects of alcohol on the human body.

After the State's expert opined that it was impossible to reach 0.17% on one beer, and that a person of Defendant's size would require about 9 beers in a two hour period to reach such an elevated BAC, we leveled a series of questions about the rate of elimination of alcohol, the fact that all Intoximeter 3000 machines had been removed from service by the State not even 90 days after this case, the fact that the 20 minute waiting period had been strictly observed, that the State's witnesses could not state what effect the Blow-pop would have on a test, etc.

We also brought in the Defendant's father for surrebuttal, to show that Defendant took Ritalin and that he only had one kidney, the other one having been lost to cancer at age 6. None of the State's witnesses had a clue how these factors might affect a breath machine test.

Probably the key to the case was asking the State's so-called expert to (a) assume that our witness (the 19-year old female passenger) had testified truthfully about no alcohol from 4:00 P.M. to midnight, (b) calculate what his starting BAC level would have had to have been before "eliminating" down to 0.17%, and (c) calculate how much beer the Defendant would have had to consume to have reached such a BAC level [0.40%]. His answer was "about 2 gallons". The guffaws of laughter from several of the jurors reflected their disbelief of the Intoximeter 3000's accuracy and reliability, and portended doom for the prosecution's case.

Due to inability to prove a "radar" case, a defense motion for directed verdict of acquittal eliminated the speeding charge. The jury deliberated for 50 minutes and found Defendant not guilty of the remaining DUI charge.

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