This would have been his second DUI in five years. But, he was not under the influence of alcohol. So, he wanted to fight the DUI charge. We hired a DUI Field sobriety instructor. We were ready. The officer only did one of the three tests because my client had a leg injury. The officer did the Horizontal Gaze Nystagmus (HGN) test. He did it wrong and we had him on the video. Not only did he do it wrong, but he did it three times. This is unheard of. The training manual says that if you are not sure if HGN is there, then it’s not there. Here, he wasn’t sure if it was there until he did it three times. Three times a charm. Reasonable doubt?
We filed a Motion to suppress the field sobriety tests in this case because they were given in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and in violation of O.C.G.A. § 24-9-20(a).
In Price v. State, 269 Ga. 222, 498 S.E. 2d 262 (1998), the Supreme Court held that custody existed when the police officer told the defendant that she would go to jail regardless of whether she performed the field sobriety tests. The Court held that the tests must be suppressed because the defendant was not warned of her right against self-incrimination under former O.C.G.A. § 24-9-20 [§ 24-5-506 off. Jan. 1, 2013].
In our case on the video, Defendant asked the Georgia Department of Public Safety Officer, “If I deny taking the tests you can take me to jail, right?” The officer replied, “Yeah, I can take you to jail for DUI, because I can smell it on you.”
So we moved the Court to suppress the field sobriety test done in this case because my client was not warned of his right against self-incrimination before he did the field test. But the motion was never heard. We were able to work out a deal the night before the jury trial. My client plead down to Reckless driving.