Georgia Criminal Law Blog

It is officially up and running and is dedicated to my primary area of practice, DUI defense.  Check it out at www.gaduiblog.com

Before you go any further, you need to read the NHTSA validation studies which I previously posted about here.  You also need to read the Cole and Nowaczyk study from Clemson University which was published in a journal called Perceptual and Motor Skills in 1994.

Having recently been certified in DWI detection and Standardized Field Sobriety Testing I have some thoughts on the subject.  Mostly the tests seem to be very subjective and are poor indicators of impairment  when someone has low and mid-range levels of alcohol in their system.  I recently performed the tests on my mother-in-law, sister-in-law and my wife.  Using the NHTSA scoring, the only one not going to jail is my wife.  They were sober, indoors with no environmental difficulties commonly found on the side of the road and had no fear of being arrested.

So, how have these tests become so popular and widely accepted in court?  Society wants to convict drunk drivers.  In the 1970’s, NHTSA paid a research group to come up with some tests.  Many tests were tried and almost none were any better than a coin flip at determining whether someone was impaired or not.  The three that did come up over that 50% that NHTSA adopted are the three test battery that we are all familar with.  HGN, Walk & Turn and One Leg Stand.  70-80% accuracy is good enough for government work, so there you have it.

There are some more recent validations studies too that make the numbers even better according to NHTSA.  The same lady (Burns) that originally proposed and validated the tests was behind the new validation numbers as well.  It’s like asking Ford Motor Company, “Which American company produces the best cars?”  You knew what the answer was going to be before you even asked the question.

 

Brush your teeth, fix your tie, gargle your listerine, grab your briefcase and keys.  Jump in the car, but it won’t start.  Waiting….you blow again, the car still won’t start, the listerine is the culprit. 

I am picturing a local bar with all the cars running in the parking lot.  Might be a good arrangement for car theives.  Or maybe a college student hanging out in the parking lot blowing in people’s breathalyzers for $10.00 per car.

Lawrence Taylor writes about a new weapon in the war on drunk driving here.  USA Today has an article on the subject here.

This is ridiculous.  It’s not illegal to have alcohol and then drive.  What would be the cutoff BAC for the ignition to turn over?  Would the manufacturer get their butt sued off when the device malfunctioned and someone gets hurt?  Could it happen?  Yep. 

As promised in the seminar the other day.  The excerpt from this case lists many causes of HGN.  It was State v. Witte out of Kansas.

 

The following three articles are the foundation for the standardized field sobriety testing currently used by almost every police department in the country.

Psychophysical tests for DWI arrests 1977.

Development of field test for psychophysical tests for DWI arrests 1981.

Field evaluation of a behavioral test battery for DWI 1983.

Fake but hilarious.  Would you convict?

HB 1275 was passed with a last minute amendment that allows a police officer to forcibly draw blood from a DUI suspect that has refused to take the state administered breath, blood or urine test.  The officer can either get the suspect’s consent or can get a search warrant for the person’s blood.  Unlike the former language, this statute does not limit these blood draws to serious injury by vehicle cases either.  See below:

On March 10, 2006 the Georgia Court of Appeal decided State v. Pierce (A05A1749).  The court clarifies the definition of “incarceration” and specifically holds that house arrest is not incarceration for the purposes of a DUI sentence under O.C.G.A. 40-6-391(c)(2)(B). 

Click here to listen to the podcast.

Webb v. State (A05A2335).  On January 24, 2006, the Georgia Court of Appeals held that the trial court did not err in admitting a numerical estimate of the defendant’s blood alcohol level based on the horizontal gaze nystagmus test.  This opinion could have devastating effects on a less-safe DUI case and will make it much more likely that the State can get a conviction on a case with relatively little evidence.

Every attorney defending one of these cases needs to object to this testimony and needs seriously consider hiring an expert on the HGN.  The HGN has been held to have reached a level of verifiable certainty in the scientific community and is admissible as a basis upon which and officer can determint that a driver was impaired by alcohol.  However, it may be an open question as to whether it has reached that same level as a basis for determining the numberical level of a driver’s blood alcohol level.  See footnote 3 of the opinion.

According to Lawrence Taylor’s DUI Blog, smokers can register higher on the breath testing machines like Georgia’s Intoxilizer 5000.  Breath machines are actually designed to report the presence of any compound containing the methyl group in its molecular structure, not just alcohol. They can’t distinguish the difference between alcohol and, say, acetaldehyde.Acetaldehyde is a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol moving from the blood into the lungs has been found to metabolize there as well — and, thus, to produce acetaldehyde there.  The amount of acetaldehyde produced in the lungs varies from person to person. However, scientists have found one interesting fact: acetaldehyde concentrations in the lungs of smokers are greater than for non-smokers — far greater. Translated: smokers are more likely to have falsely high readings on a Breathalyzer. “Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking”, 100 Journal of Laboratory Clinical Medicine 908.

The makers of the Intox 5000, CMI Inc., offer an addition to the machine that can detect the presence of acetaldehyde.  You should check to see if your local police department or jail has purchased the actaldeyde detector for the machine.  If you are going to use this defense, you will most definately need an expert to explain it to the jury.

CNN.com - Georgia hopes drunk drivers will see the signs - Feb 11, 2006

 

It’s a powerful message isn’t it.  This program raised one of the surcharges on DUI fines by one dollar to pay for the cost of the signs which are $150.00 a piece.  The memorials stay up for five years.  So far there are only two signs that have been erected and only eight have been requested.  I wonder where the rest of that money goes? 

DUI Charges.  Click the link to download my Requests to Charge that I used in a recent DUI refusal case. 

Click here to read an article on the reliability of roadside field sobriety testing.  It is from the Washington Post.

To truly understand why these tests are unreliable, you need to read and understand the validation studies that the tests are based on.  They are not perfect.  In fact they are barely 50/50.  What the officer observes and the causes of it is always up for debate.  Throw in the fact that many times the police officer is predisposed to finding someone to be intoxicated anyway and that makes for a scary combination.

I think the public is beginning to understand this and that is why there are so many more “refusal” cases than there were 5 years ago.

Last week I got a win on a less safe dui.  Actually, it ended in a mistrial.  This was a refusal case with no field sobriety tests and a head-on collision.  My client wasn’t drunk at the time of the accident but had been drinking 3 or 4 hours earlier.  The jury was deadlocked 5 to 1 in favor of acquittal.  After the Judge declared a mistrial, the DA reduced it to a reckless driving and we pled.  That’s a win in my book!