DUI

Nurse gets reckless driving

Jason Cerbone · March 8, 2015 ·

The prosecutor must prove beyond a reasonable doubt that you were driving under the influence of alcohol to the extent you were a less safe driver. When the State does not have a chemical test, you should challenge your DUI charge if one of the three elements of DUI refusal will be hard to prove.

Insufficient evidence of impairment

The nurse was driving home with her husband. She was on I-16 and stopped at a gas station. In the parking lot a police officer noticed that she was not wearing a seatbelt. One thing led to another and she was charged with DUI Refusal – 40-6-391(a)(1); and No seat belt – 40-8-76.1(e)(3) by the Georgia State Patrol. She refused to take the field sobriety tests. She refused to take a breath test. In the her case there was not enough evidence for probable cause to arrest her for DUI.

In the Recorder’s Court of Chatham County she plead guilty to reckless driving instead of DUI refusal. The charge for No seatbelt was merged into the Reckless driving charge.

Judgment: Nurse’s DUI refusal negotiated to reckless driving

Nurse's DUI refusal negotiated to reckless - Jason Cerbone - Savannah DUI Defense Lawyer

Share this:

Military Officer’s DUI Reduced in Bryan County

Jason Cerbone · March 2, 2015 ·

Q was arrested for DUI less safe, and Failure to maintain lane by the Bryan County Sheriff’s Department on Highway 17. The Bryan County Deputy wrote in his report that Q was driving 29 miles an hour in a 45 mile per hour zone, and he drove with his driver’s side tires over the dotted center line of the highway. The police officer claimed that Q weaved heavily within his lane. So, the officer pulled him over and immediately detected an odor of an alcoholic beverage coming from the vehicle. The officer said Q was slouched down, face flushed, and his eyes bloodshot and glassy, and Q’s speech was mumbled, slow, and slurred. Q admitted he had a couple of beers that night. Q was unsteady on his feet according to the Deputy. He administered two of the three field sobriety tests and then arrested Q for DUI and took him to the Bryan County Detention Center.

Q would have been dismissed from the military if he got a DUI conviction. So there was only one thing left to do. Fight the DUI. We were headed to a jury trial.

The video showed Q pulled over perfectly. The officer first gave the Horizontal Gaze Nystagmus test (HGN) and then the One Leg Stand test. It is critical that the tests be done perfectly. We hired an Atlanta Field Sobriety Test Instructor and Former DUI Police Officer to testify for the jury and prove that the Police Officer didn’t do the Field Sobriety Tests the way he was trained to do them. This invalidated the results of the tests. First, the HGN test takes a certain minimum amount of time to do the number of passes correctly. If the HGN is done too fast to complete those passes correctly then it was done wrong and the HGN is no good. Here, the Officer did it way too fast. The Officer did the passes incorrectly and invalidated the entire HGN. The next test that should have been done according to the Field Sobriety Manual is the Walk and Turn. The Officer chose not to do this test. The Officer instead had Q do the One Leg Stand test. Q did this test in the grass. The test requires a hard flat and reasonably level surface. The grass is not hard, flat, and reasonably level.

The Solicitor was ready for the trial. I respect him very much. It would have been a pleasure to try a case against him in Bryan County. But if you can avoid a trial and get a good deal, that is the thing to do. The week before the trial, I went to the Bryan County Courthouse to strike a jury. And on the courthouse steps in front of the red bricked courthouse, the Solicitor and I talked a good bit and he finally agreed to let Q plead his DUI arrest down to Driver to use due care. He is a good man, that Solicitor. He is a good man even if he didn’t give Q that wonderful plea offer. But, I like him more now because of that good deal.

Judgement: Military Officer’s DUI Reduced to Driver to Use Due Care

Share this:

Model Arrested for DUI Plead to Reckless Driving

Jason Cerbone · February 26, 2015 ·

Elena was arrested for Driving under the influence of alcohol (DUI) with .02 grams or more under 21 years of age – 40-6-391(k)(1); Underage possession of alcohol – 7-3-24(b); and Speeding – 40-6-181 by the Richmond Hill Police Department. The police officer claimed that he “detected an odor consistent with that of an intoxicating beverage,” coming from Elena. The police officer wrote in his arrest report that he asked Elena if she had been drinking, and she said she had consumed a “little bit” of alcohol. The cop asked where it was, and she said in the trunk. The cop opened the trunk and found a bottle of Jose Cuervo Tequila Silver, a bottle of Smirnoff Vodka Green Apple, a bottle of Malibu Red, a bottle of Stella Artois Cider, and a bottle of Firestone Vineyard. The officer asked Elena to do a Preliminary Breath Test (PBT) on the street. She did and the PBT result showed the presence of alcohol. The officer then arrested Elena and read her the Implied Consent Rights. Later, she gave two breath tests at the police station and the results were .099 and .094.

The biggest problem with this DUI arrest was that the officer failed to do any of the three field sobriety tests before he arrested my client. The field sobriety tests should have been done first. And then if he wanted to confirm the results of his field sobriety tests he may do a preliminary breath test (PBT). According to the DUI Field Sobriety Training Manual, “Many experienced DUI officers rely on the PBT less as their confidence in DUI Detection increases.”

In the Bryan County Municipal Court of Richmond Hill, Georgia Elena plead guilty to Reckless Driving. The Speeding charge was merged, and so was the Underage posssession of alcohol.

Judgment: Model Arrested for DUI Plead to Reckless Driving

Share this:

DUI Dismissed at Tybee Preliminary Hearing

Jason Cerbone · February 1, 2015 ·

My client, (I will call him John) is a successful entrepreneur who owns a vacation home on the beach on Tybee Island, Georgia. He was charged with DUI less safe (alcohol), Open container, and Following too closely. This would have been his fifth DUI in life. This could have been bad. But, it turned out good. You always have a chance. Always.

The preliminary hearing is a critical stage. The purpose of the preliminary hearing is to see if there was probable cause that a person committed a crime. This is a low burden of proof. Ninety-nine percent of the time there is probable cause. But, sometimes probable cause is not proved. This was one of those times.

It was 4:30 p.m. in the Tybee Island Municipal Court when our case was called. We hired a court reporter and she was there to make a record of the preliminary hearing. I told the judge to order the witnesses out of the courtroom so that each police officer could not hear the testimony of other officers.

Officer One testified. She was the primary police officer who made the police report. The primary officer is the officer who makes the decision to arrest. Officer One said she smelled alcohhol on John, and his eyes were red and glossy. Officer One said Officer Two talked to John. That’s all. At that moment I knew something was wrong. On cross-examination, I got Officer One to tell the court that she didn’t make the decision to arrest John. She said that Officer Two made the arrest decision.

Officer Two testified. On cross, Officer Two said, “I was not the arresting officer.” He said that Officer One was. Then he said that Officer Three read John his Implied Consent rights. That was it. The district attorney said “Let’s talk.” We agreed that John may plead guilty to reckless driving and the DUI charge will be dismissed. Here is the the result:

DUI less safe (alcohol): Dismissed, Negotiated guilty plea to reckless driving
Open container: Dismissed
Following too closely: Dismissed

Anytime you are in the courtroom, you have a chance. Even at the preliminary hearing. Case closed.

Judgment: DUI dismissed at Tybee Preliminary Hearing

Share this:

Ten minute DUI not guilty verdict

Jason Cerbone · January 13, 2015 ·

She was charged with DUI less safe (alcohol) and Failure to maintain lane. It took the Chatham County jury ten minutes to reach a verdict. Not guilty to DUI less safe. Guilty to Failure to maintain lane. That was the fastest DUI not guilty verdict that I’ve ever had.

Also, this was the first time that I was put in contempt of court and put in a holding cell. So there I was. The judge took me out about ten minutes later and said nothing about it. It was a misunderstanding. But the jury was waiting and a I had a trial to finish. I stayed focused.

She was driving home and using her phone for GPS. She hit a center median and broke her axle, and the air bags exploded hitting her in the face, she lost control of her car and it stopped in the elementary school parking lot across four lanes. A street sweeper saw something. He called the police. The officer did field sobriety on her, but didn’t call for medical assistance. And this is important because the DUI field sobriety expert who testified for my client said that he would have never asked her to do field sobriety and would have called for medical assistance because she was hit in the head by exploding air bags and she crashed. It didn’t matter that she said she was alright. He would have called for help. But the officer did not. Instead, he gave her the field sobriety tests.

DUI police officers are trained that people who are overweight by 50 pounds or more may have difficulty performing the tests. She was over 50 pounds overweight, and this was the key, I think. Not that she was overweight, but that the jury felt awful for her. When I made that point, the room went cold, and dead silent and the witnesses asked about her weight didn’t want to talk about it. So, now this uncomfort lasted longer because I had to make the point. Anyway, she walked out of the court house that evening and said “Thank you.” “Your welcome”, I said.

Judgment: Ten minute DUI not guilty verdict

Share this: