Breath Test

In the State Court of Liberty County my client (we’ll call him Joe) was charged with DUI less safe – 40-6-391(a)(1), DUI .08 grams or more – 40-6-391(a)(5), and Speeding. He pleaded guilty to just the speeding charge. The DUI less safe and the DUI .08 grams or more were dropped.

The police report said that Joe had red, glossy eyes, and that he had a strong smell of alcohol coming from his breath. The Liberty County Police Officer asked Joe how much he had drunk and Joe said he had three glasses with one shot of gin in each cup that he made. Then the officer asked him when he had his last drink, and Joe said four or five hours ago. The report said Joe was unsteady on his feet when he got out of his BMW. The video showed that he was not unsteady. The police officer then gave Joe a preliminary breath test.  The result showed the presence of alcohol and they arrested Joe, cuffed him, and took him to jail for DUI.

What the Liberty County police did not do was give Joe any field sobriety tests.  They should have given him three field sobriety tests (also known as roadside agility tryouts (RATS) in this order: Horizontal Gaze Nystagmus, Walk and Turn, One-Leg Stand.  Then after those three field sobriety tests he should have been asked to blow in that preliminary breath test.

I got ready for the preliminary hearing.  The day of the preliminary hearing the District Attorney agreed to drop the two DUI charges and let Joe plead guilty to Speeding.  Joe agreed.  Naturally.

Judgment: DUI reduced to Speeding in Liberty County

Jake is a Gulfstream engineer. His career in the Aviation industry would be gone if he got a DUI on his record. Jake’s life would have been ruined if we gave up. So, I fought Jake’s case like I was fighting for my family. Fighting is the key.

Jake was driving home one night and he sees blue lights and he pulls over. The cop told Jake he paced him doing 70 m.p.h. in a 45 m.p.h. zone. (This is important because Speeding is not one of the twenty-four nightime DUI Detection cues that police are trained to look for in DUI drivers.) Jake had his license ready for the cop before he walked up. Immediately the cop asked him if he’d been drinking. Jake told him three or four beers earlier. Jake does some field sobriety tests on an unlevel highway in the cold 50 degree night in the dark. Jake felt he did the field sobriety tests pretty well. But he was arrested for DUI and he took a breath alcohol test at the police station and blew a .136 breath alcohol test on the Intoxilyzer 5000. During the field sobriety tests and when he blew the breath alcohol test he had chewing tobacco in his mouth. This is a bit of a problem for forensic reliability. The officer did all of the field sobriety tests wrong. Any field sobriety tests instructor would show that.  The officer didn’t follow the protocols for giving the breath alcohol test because he didn’t watch Jake for the required 20 minute observation period. He also violated the breath alcohol test protocol by not removing the chew in my client’s mouth while he blew in that machine.

Anyway, I talked to the Solicitor General (the opposing attorney) several times. He is a fantastic lawyer. After showing him some of the problems in this case, he agreed to work this case out. The result:DUI .08 grams or more with .136 breath alcohol test dropped; Speeding dropped; Open container dropped; Failure to maintain lane dropped. Jake plead guilty to Failure to use due care in the State Court of Effingham County Georgia.

Here is what we ended up with: DUI .08 grams or more with .136 breath alcohol test dropped; Speeding dropped; Open container dropped; Failure to maintain lane dropped. Jake plead guilty to Failure to use due care in the State Court of Effingham County Georgia.

DUI .136 dropped for Gulfstream engineer

Kori was arrested by a Georgia State Patrol Officer in Long County, Ludowici, Georgia. She was charged with DUI, alcohol, less safe 40-6-391(a)(1) .183 blood alcohol content; Possession of open container in vehicle passenger area 40-6-253; and Failure to maintain lane 40-6-48.  In the Ludowici Municipal court she got no DUI.  The judge let her plead to Not guilty to DUI.  Guilty to Failure to use due care.

Kori is an Information Technology Specialist for the U.S. Army. She is from Arizona. She was in Savannah for work.  She had left downtown Savannah and was driving to Hinesville.  She was reaching over and messing around with her Garmin GPS and ran off the road. She was pulled over by a Georgia State Patrol Officer.  She had a cup of gin and tonic in the center console. The State Patrol Officer told her to get out of the car and do some field sobriety tests. She said, “This can’t be happening to me.” My back has an injury that makes it hard to walk after sitting.” The police officer replied, “Just do what I tell you.” It was extremely cold out. She had two bulging discs in her back and the police officer knew this, but they had her give the field sobriety tests a shot anyway. She failed these according to the police officer. On the preliminary roadside breath test she blew a .200. On the Intoxilyzer 5000 breath test inside the police station she blew a .186 blood alcohol content and a .183 blood alcohol content.

Back in Savannah, Georgia I subpoenaed the Georgia State Patrol Officer video of the stop and arrest, and his polcie report, and breath test tickets and call records. I watched the video for hours. I paused it and wrote down the times and the things that I would challenge him on. For example, the way he did the field sobriety tests. Then I carefully created a cross-examination outline that I would use in court to help Kori beat the DUI. After all that, I called the Georgia State Patrol Officer up. He was nice on the phone. He was a pleasure to work with.  And there was no district attorney.  He asked me, “What do you want?” I said, “Anything except a DUI.” “All right,” he said, “I am willing to let her plead to Failure to use due care.” I was surprised. “Thank you Mr. Police Officer, Thank you.”

I called Kori up. “I got something fine to tell you,” I said. “The police officer is willing to drop your DUI down to Failure to use due care.” She said, “That’s the best thing I’ve heard.” “Yes,” I said, “He’ s one of us.” She flew into town for court. I drove an hour and a half in the pouring rain to Ludowici Municipal Court. She took the deal. The judge agreed and ruled “Not guilty to DUI. Guilty to Failure to use due care.” I stood next to her. She patted me on the shoulder.

Judgment: Army Specialist Not guilty to DUI

Eli was arrested for DUI breath test, with a .119 blood alcohol content breath test, DUI less safe (alcohol), and no headlight bulb. Eli was driving home from the Luke Bryan concert with his wife. He sees blue lights and he pulls over. The cop comes up to his window and asks, “Did you know you got a headlight out?” “No,” Eli replies. “Get out of the car,” he demands. Then, outside, “Anything to drink tonight?” the cop asks. “Yes,” Eli says, “about an hour ago, I had two beers.” The cop replies, “You should be safe, good to go.” “Let me check you out, make sure you’re going to be safe, then get you out of here, O.K. bud?”  In other words, let me do some field sobriety tests on you.  He gives Eli a preliminary dui breath test.

In the end it wasn’t about the messed up field sobriety tests done in the grass. Or, the calibration records showing the DUI breath test was off that day. Or, the various other problems with the officer’s DUI investigation. It was more invisible than that. This was about preparation. It was about dealing with a good cop who was willing to work with me when no prosecutor has the case, yet. This was not Savannah, Georgia. Or even, Chatham County.  It didn’t involve the Chatham County District Attorney’s Office. No sir. This was Pembroke, Georgia.

But in the end it was checked. Eli plead down to “Driver to use due care.” The DUI breath test charge and the DUI less safe charge and the Headlights requirement charge are gone.

Judgment: DUI breath test .119 dismissed for Fireman

She was a foreign national student at the Savannah College of Art and Design (S.C.A.D.) She was charged with DUI unlawful blood alcohol level as a minor – 40-6-391(K)(1); Driving without tail lights; and No permit. She had a DUI breath test of .061% blood alcohol level and the Georgia DUI law says if she had .02 blood alcohol level or more, she’s guilty.

She was pulled over by a Savannah Chatham Metropolitan Police Officer for No taillight.  He let her go.  He didn’t even bother writing her a warning.  Minutes later, she was pulled over again by a Georgia State Patrol DUI cop and got arrested for DUI, and was taken to the chatham county jail.  She blew in the breath apparatus two times.  The first DUI breath test showed her blood alcohol level at .063 and the second showed her blood alcohol level at .061

We went after the cop who stopped her first. Obviously, the first stopping officer wouldn’t have let her go if he thought she had alcohol in her body.  She was pulled over for a broken taillight. She pulls over normally. She uses her emergency flashers. No slurred speech noted. She exits her car normally. She didn’t have a drivers license because she is from another country.  She told the cop she had one drink about three hours ago.  She is well spoken….Articulate. The observation period for the breath test was violated. The government broke their own rules. And the machine’s records that we subpoenaed showed a broken breath apparatus.

So we filed a Demand for Speedy Trial and and went for them fast. Of course, we told them nothing.  At the Pre-Trial Conference Hearing, one week before the trial, the Prosecutor gave my client an offer to plead guilty to something other than DUI. She said Yes.

It is only in doing it that it can prove to be impossible. How do you know it is impossible until you have tried it? If everybody said it is impossible where would you be? Where would we all be if you just said “Impossible?”

I have seen enough lawyers to whom all DUI blood alcohol level test trials were impossible. In the State Court of Chatham County in Savannah, Georgia she plead the DUI breath test down to Failure to use due care, and No Permit.

Judgment: DUI breath test win for SCAD student