DUI

She needed this DUI charge to go away because she is about to be a nurse. She was pulled over on I-16 leaving downtown for Failure to maintain lane by the Georgia Department of Public Safety (Trooper). The trooper saw that her eyes were bloodshot, and her speech slow and slurred. She told the trooper that she drank four hours earlier. She did field sobriety tests and then she was arrested for DUI less safe.

In the State Court of Chatham County her DUI was reduced to reckless driving. Her Failure to maintain lane charge was merged (aka dismissed).

Why don’t I just throw myself on the mercy of the court? You never do. You always plead them non-guilty.

At 8:30 p.m. John and his wife ate dinner at The Crab Shack on Tybee Island in Savannah, Georgia. They ordered one Tybee Tea, one Crabber cocktail, two pounds of snow crab legs, low country boil, and one side sausage. After that they headed back to the hotel for the night.

The Georgia Department of Public Safety’s Georgia State Patrol Officer clocked a black Mercedes heading westbound on I-16 going 73 m.p.h. in a 55 m.p.h. zone. The officer stopped John and walked up to his door. At the door the officer claims he smelled a strong odor of an alcoholic beverage coming from John’s breath. The cop asked John how much he drank. John told him he had one drink three hours ago with dinner at the Crab Shack.

The DUI Nighthawk officer asked John to do some field sobriety tests to make sure John was safe to drive. John did them. They were the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Then the police officer asked John to blow in his hand held breathalyzer device on the side of the road. John tried to but the officer wrote in his report that John would not provide a valid breath sample. He arrested John for DUI less safe – 40-6-391(a)(1). He read him the Georgia Implied Consent Notice for Suspects age 21 or over and asked him to take a blood test. John said, “No.”

DUI less safe down to reckless driving

In the State Court of Chatham County, Savannah, Georgia we waited for the jury to be brought in by the bailiff. In the end there would be no jury trial. John plead his DUI less safe – 40-6-391(a)(1) charge down to the lesser charge of Reckless driving. The other charge for Driving under the influence (DUI) was changed.

Judgment: DUI less safe to reckless driving:

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.

Judgment: 2nd DUI down to reckless driving