Kira was driving on Highway 17 South in Guyton, Georgia. An Effingham County Sheriff’s Officer clocked her going 69 miles per hour in a 45 miles per hour zone. She turned off the road and parked in a driveway. The police officer parked behind her and turned on his blue lights. The police officer wrote in his report that he approached her car and Kira refused to look up and explained that she was lost, and continued to play on her cell phone. The officer smelled a strong odor of alcohol and a mint. He asked her if she drank. Kira said she had a few drinks but it shouldn’t be a problem. She continued to rationalize why the deputies had no reason to investigate any further.

The Officer asked her to step out of her Mercedes and do some field sobriety exercises to see if she was a safe driver. Kira did as commanded to do. The officer only did one of three Federal mandated tests. He chose to do the Horizontal Gaze Nystagmus (eye exercise) and he said that Kira showed clues. He didn’t write in his report which clues or how many clues he saw. She was arrested by the Effingham County Sheriff’s Office for Speeding in excess of maximum limits (69 miles per hour in a 45 m.p.h. Zone) – 40-6-181, and Driving under the influence – Refusal (1st offense) – 40-6-391(a)(1).

Driver to exercise due care – 40-6-241

“A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle.”She plead guilty to Driver to exercise due care – 40-6-241. It’s as if the DUI never happened.

Judgment: Effingham DUI reduced to Driver to use due care

DUI Roadblock Checkpoint in Pooler

Gibson was driving home at 1:00 a.m. on I-16 going towards Pooler. He took the off ramp from I-16 West to Pooler Parkway. He saw there was a roadblock police checkpoint and he drove up to it. The Roadblock was run by the Georgia State Patrol DUI Law Enforcement. The officer walked up to Gibson’s window and immediately smelled a strong odor of alcohol on his breath. So, he told Gibson to get of his Lexus.

The DUI officer then set in and asked “How much have you had to drink this evening?” Gibson, said “Just a couple earlier.” The DUI police officer asked Gibson to take some field sobriety tests and he agreed. The Horizontal Gaze Nystagmus test was the first one my client did. The police officer said my client showed six of six clues on that test. In other words, he failed the eye test. The officer held up a device with a tube and asked Gibson to blow in a preliminary breath test out there on the road. Gibson did not. He refused the Preliminary Breath Test. And that was it.

The Georgia State Patrol officer placed Gibson under arrest for DUI less safe (Alcohol) 40-6-391(a)(1). Next he cuffed my client and put him in the back of his patrol car on the Pooler Parkway. And then he told Gibson to listen up and he read him the Georgia Implied Consent Notice from the bright orange card. He asked Gibson to take a breath alcohol test. Gibson said, “No.” The Pooler Police had his girlfriend blow in the preliminary breath test and decided to let her drive Gibson’s Lexus home.

Gibson is a helicopter pilot and he got arrested for DUI less safe in Pooler. If he was convicted or plead guilty to this DUI less safe in Pooler, Georgia it would have been his second DUI within five years. He would be facing serious jail time among other things. In the Pooler Municipal Court at the Preliminary Hearing Gibson’s DUI less safe from the Roadblock was dismissed in open court. There were various problems with this arrest. The Police officer acknowledged the issues and the case was dismissed in front of the judge that day.

Judgment: Pooler DUI less safe

It was a loser. But we won. So…my client works at Gulfstream and is very good at what he does. He has never been charged with anything in his life. This was the first time he was arrested for a DUI. So, that was good. Anyway, I remember the day that I got the video and I thought Jeezo Chrise…how am I going to win this one? Gulfstream was hammered. If anyone watches this video, we are screwed. But, there was one thing.

Gulfstream was pulled over on I-16 leaving downtown Savannah. He was stopped by the Savannah Metropolitan Police Department (SCMPD) for Speeding and Improper lane change. But the SCMPD didn’t write him a ticket. Not a single ticket. He called a Georgia State Patrol Nighthawk DUI Police Officer and about 30 minutes later the Nighthawk showed up. The field sobriety tests were just awful. When my client talked it was not good. I was interested in the things that are not on the video. That 30 minute wait was a problem. But it was a gamble. So we gambled.

After we had gone to the Recorder’s Court of Chatham County and it was continued about five different times, I noticed that the Savannah Police Officer was never there. I requested records from his department, and I never got anything. So, I told Gulfstream that his best shot would be in front of a judge alone. This case was not good for a jury trial. So we kept it in Recorder’s Court and scheduled it for a bench trial. Our best shot to win would be if the Savannah Police officer didn’t show up.

The day came. The Georgia State Patrol Officer was ready as always. The Savannah Police officer wasn’t there, and we start. As soon as the Nighthawk started testifying about why my client was stopped I objected to Hearsay and Confrontation Clause problems, and lack of personal knowledge. The Assistant District Attorney asked the Court if this was the trial. The judge realized that the prosecutor didn’t know this was the bench trial. So he stopped the case and reset it to another day so the State could properly prepare. Finally, we had a bench trial, and on that day none of the police officers showed up. I asked the prosecutor if she would allow my client to plead guilty to the lesser charge of Reckless Driving and she said, “Yes.” Well, I hope that the judges don’t read my blog.

Judgment: It was a loser but we won

Caleb was pulled over by a Georgia State Patrol DUI Nighthawk on I-16 for speeding (71 m.p.h. in a 55 m.p.h. zone) at 3:56 a.m. Nighthawk wrote in his report that he smelled “the odor of an alcoholic beverage in the vehicle.” Nighthawk opened the truck door and told Caleb to step outside. Caleb did as instructed. Nighthawk wrote that Caleb’s “eyes were watery and bloodshot and his speech was slow and slurred.” He asked Caleb how much he drank, and Caleb said he had three drinks with the last one over an hour ago. And then the conversation goes like this.

Nighthawk: “Do you have any weapons on you?”
Caleb: “No sir.”
Nighthawk: “Do you think you have had too much to be driving?”
Caleb: “No sir.”
Nighthawk: “Any weapons on you?”
Caleb: “No.”
Nighthawk: “Any weapons in the truck?”
Caleb: “No.” (Nighthawk frisks Caleb for weapons)
Nighthawk: “Marijuana?”
Caleb: “No.”
Nighthawk: “Weapons?”
Caleb: “No.”

Nighthawk then got Caleb to do some Field Sobriety Tests, (a.k.a. Roadside Agility Tryouts). He did the eye exercise (aka Horizontal Gaze Nystagmus,) and the Walk and Turn exercise. Nighthawk asked Caleb to do a Preliminary breath evaluation on the side of the road, and Caleb said, “No.” At that point Nighthawk arrested Caleb for DUI less safe § 40-6-391(a)(1) and Speeding in Excess of maximum limits § 40-6-181. Nighthawk cuffed Caleb and placed him in his car and read the Georgia Implied Consent Notice, and asked Caleb if he would take a breath test. Caleb said, “No.” He refused to take the breath alcohol test.

Caleb showed none of the 24 possible DUI Detection clues for driving. Speeding is not one of the 24. He drove perfect. During the personal contact phase, the Nighthawk found four clues: bloodshot eyes, odor, admission of drinking, and slurred speech. On the video there was no slurred speech. Caleb walked fine. Caleb had normal natural movements. He looked good.

During the Horizontal Gaze Nystagmus exercise the Nighthawk held the stimulus way too high, well above his head, for 61% of the time. This invalidated the whole exercise. Nighthawk also did the passes too fast. The speed he did each clue invalidated the eye exercise.

Nighthawk had Caleb do the Walk and Turn exercise wearing flip flops. He told Caleb that he didn’t have to do the One Leg Stand because he was wearing flip flops. He said, “Flip flops are not good shoes.” I agree. The 2013 Field Sobriety Manual says that if someone is wearing flip flops or platform shoes, give them the opportunity to take them off. Nighthawk didn’t do this. He had Caleb do the walking exercise in flip flops. This invalidated the Walk and Turn.

Under Georgia law drinking and driving is not illegal. Driving with a blood-alcohol content above .08 is illegal. Driving while you are under the influence of alcohol to the extent you are a less safe driver is illegal, but drinking and driving itself is not illegal. This case would have been perfect for a Jury trial. We were ready to do that. But, the Prosecutor gave Caleb an offer to plead guilty to Reckless Driving and that it what he did. This is a win in my book.

Judgment: DUI reduced to Reckless Driving for Contractor