Head’s defense strategy revolves as much around the science as the law.

A Georgia driver can be charged as a criminal when the level of alcohol vapor in his breath exceeds .08 grams of ethyl alcohol for 210 liters of air, said Robert Brown, a toxicology expert with the Georgia Bureau of Investigation.

Whether that proportion is an accurate measurement of a drunk driver, or whether it can be accurately measured at all, is a frequent point of attack for the defense, Head said.

With a mock-up alcohol molecule in tow, Head lectures juries on organic chemistry. He explains the breath test reading could be the result of diet, weight or a possible flu bug. If the defendant used flooring chemicals, painted his house or pumped gas into his car that day — those factors, too, could render the breath test invalid.

On the other side of the law, prosecutors must tediously pore through reams of data. They bring Brown to the stand, the GBI’s toxicology expert, who tells the jury the breath-testing equipment is regularly monitored by a qualified expert, and the arresting officer was properly certified.

Collecting an ever-increasing amount of paperwork and expert testimony is becoming an unbearable burden for the state’s prosecutors, they complain.

"The area of DUI prosecution has gotten to be one of the most complicated there is in all prosecution," Drolet said.

DUI laws change constantly because of the very nature of legal debate: The DUI defense industry charges tougher laws undermine constitutional rights.  Proponents of tough DUI laws claim that those laws save lives. 

"The whole idea is that we don’t have a rolling cocktail party," said Christopher Noe, MADD Georgia’s executive director.  "The greatest tragedy in all this is that DUIs are preventable."

MADD is often credited with bringing the drunk driving issue to the political forefront. Founded in 1980, the organization has worked to bring stronger enforcement of impaired-driving laws, and change public attitudes. MADD claims drunk-driving fatalities nationwidehave been cut nearly in half — to about 14,000 since the group’s inception.

Experts say MADD has successfully pressured legislators to lower legal blood alcohol levels, linked tougher state drunk-driving laws with receiving federal transportation funds, and effectively stigmatized the drunk driver. However, the organization’s critics say MADD has done harm, too.

"The Constitution has been twisted, turned upside-down and made a joke of," said Head, the Atlanta DUI lawyer.  "[MADD] has created an attitude that this is the most heinous crime in the world."

Often, challenges to DUI cases are based on whether the officer was justified in stopping the driver — particularly in a roadblock.

"It used to be that if you wanted to have a roadblock, you had to be looking for someone on the lam," Head said.  With DUI checks, "you’re on a fishing expedition for evidence."

Various challenges to roadblocks have led to strict requirements from Georgia courts, said Terry Long, deputy director of legal services for the Georgia Department of Public Safety. Nevertheless, checkpoints have held up again and again in state and federal courts. In fact, the federal government provides money to set them up in Georgia.

Recently, Georgia was one of only five states to receive a Sobriety Checkpoint Demonstration Grant by the National Highway Traffic Safety Administration.  During a 15-month initiative under the program ending in September 2001, police made 2,340 arrests at 2,578 checkpoints across the state.

The state also received a "B" grade in a 2000 national survey of the states’ DUI laws conducted by Mothers Against Drunk Driving. California received the highest grade, "A," and Montana and the Dakotas share lowest grade, "D+."

"People don’t realize the scope and magnitude of DUI law," said Noe.

Still, like this year, DUI law is subject to change. Technicalities are challenged in court, decisions overturned on appeal, and the laws are rewritten.

Defense lawyers like Head will find new ways to challenge prosecutors, who will urge for legislative changes — and the revolving door takes yet another spin.

"Of course, when the court says that we lose, we want to rewrite the law so it will work again," Long said.

Posted with permission from The Atlanta Journal-Constitution © 2002.