Breath Test

David is an Aerospace Project Engineer. His job title doesn’t go well with a DUI. He was willing to fight his DUI charges at all costs. I was happy to help him. The best thing that he had going for him was that when he was arrested for DUI, he was cooperative and treated the DUI officer well. The police officer even wrote in his DUI arrest report that David, “remained very cooperative and respectful throughout the entire investigation.” So, we had that going for us, which was nice.

David was driving home and was lost in Rincon, Georgia. He was new to town and lived in Port Wentworth, Georgia. The Rincon Police Officer was behind David on South Columbia Avenue. The police officer saw David fail to maintain his lane twice and pulled him over in the Walmart parking lot. The police officer asked for his license and David already had it in his hand for him. The cop wrote in his report that he noticed a “strong odor of alcohol emitting from the vehicle, observed a thick mumbled speech, and glassy bloodshot eyes.” The Rincon Police Officer asked David where he was coming from. David said, “Silverado’s,” a bar and grill in Port Wentworth, Georgia. The officer asked David to get out of his truck. David complied.

The officer asked David if he would do some field sobriety tests to make sure he was safe to drive. David said, “Yes,” and told him he used to be a police Officer for the Department of Defense. David was trained on how to give the Field Sobriety tests, which he was now asked to perform by the Rincon police officer. Another cop pulled up. The police officer gave David all three standardized field sobriety tests: the Horizontal Gaze Nystagmus, the One Leg Stand, and the Walk and Turn. David failed all three, naturally. The officer saw six of six clues on the Horizontal Gaze Nystagmus test. He found two of eight clues on the Walk and Turn and three of four clues on the One Leg Stand.

These field sobriety tests are a bad joke. You should never do them because you will fail and most likely the police officer will think you failed even when you did not. If the police officer asks you to do these exercises he already believes that you are under the influence of alcohol. So it is no surprise that he subjectively feels that you showed signs of being under the influence during your roadside agility tryouts.

The Rincon Police officer arrested David and took him to the Effingham Sheriff’s Office and gave him the breath tests on the Intoxilyzer 9000. David blew a .113 and was charged with O.C.G.A. § 40-6-391(a)(5) DUI – Alcohol 0.08 grams or more; and O.C.G.A. § 40-6-48 Failure to maintain lane. David called me the next day. About six months later we were in the Rincon Municipal Court in Bryan County and David got his DUI charge reduced to O.C.G.A. § 40-6-241 Failure to exercise due care. David is still working in the airline industry, and has no DUI on his record.

Judgment: Rincon DUI Breath Test Reduced for Aerospace Project Engineer

I was in Italy when I got the call. She was a nice woman and a Captain in the U.S. Army. She felt remorseful, and stressed. She was rather concerned and wanted to get rid of her DUI charges. I helped her by preparing her letter to request a license suspension hearing and save her driver’s license. I did it on the train from Venice to Cinque Terre.

The Pooler Police Officer wrote in his police report that she failed to maintain her lane and then she parked her 2015 white Mercedes Benz on the side walk. She smelled of alcohol and the cop asked her to do some Field Sobriety Tests. Naturally she failed those and was arrested. The Pooler Police arrested her for DUI/Alcohol – 40-6-391(a)(5); DUI less safe – 40-6-391(a)(1); Failure to maintain lane – 40-6-48; and Open container – 40-6-253. She was crying, and hyperventilating (like woman do when they are arrested for DUI) and then she took a breath test. She blew a .170 on the Intoxilyzer 9000.

Eventually, she plead both of her DUI charges down to Failure to use due care. The charge for open container was changed to driving too fast for conditions. The Pooler Police officer is the real reason for her success. He is an admirable man and he was willing to work with me on this case for this woman.

Judgment: High DUI Breath Test Reduced to Failure to exercise due care

 

 

My client, (I will call him Kevin) was arrested by the Pooler Police Department in Pooler, a municipality of Savannah, Georgia, Chatham County. He was charged with four DUI related traffic offenses. The police officer wrote in his report that Kevin drove in the left hand lane going 50 m.p.h. for several miles and there were no cars in the right lane. The officer pulled Kevin over and when he was at the window he smelled alcohol. He asked Kevin where he was coming from. Kevin replied, “Bahama Bob’s.” The cop asked Kevin if he drank. Kevin said he had drank his last drink about an hour ago. The officer said Kevin’s face was flushed and his speech was slow and slurred, and that Kevin struggled to remove his license from his wallet.

Arrested for DUI in Pooler

The officer asked Kevin to get out of his car and do some Field Sobriety Tests. Kevin did as asked. He took the three required DUI field tests: Horizontal Gaze Nystagmus test, Walk and Turn, and One Leg Stand. He then took the Preliminary breath test. This showed the presence of alcohol. The officer concluded that Kevin failed all three of the tests and arrested him for DUI less safe. The cop then read Kevin the Implied Consent Rights and asked if he would take a breath test. Kevin said, “Yes.” He took the test and blew a .128 into the Intoxilyzer 5000 police breath test at the Pooler Police Station.

Eventually, Kevin was given the opportunity to plead his DUI down to Failure to use due care, and all other charges would be dismissed. He took it.

Here is the deal

Original Charges

1. DUI alcohol (breath test) – 40-6-391(a)(5)
2. DUI less safe (alcohol) – 40-6-391(a)(1)
3. Must apply for new license within 60 days of moving to a new address – 40-5-33
4. Impeding the flow of traffic – 40-6-184

Final Result

1. Reduced to Failure to use due care
2. Dismissed
3. Dismissed
4. Dismissed

Final Judgment: DUI Dismissed in Pooler, Georgia

He was arrested for DUI under the limit (.062), and plead his DUI charge down to Reckless Driving. John and his wife went to Applebee’s for dinner. He drank two beers with his wings. On his way home he was pulled over by the Savannah Metropolitan Police for Failure to move over. There was traffic behind him and coming at him in the other lane. He couldn’t safely move over even if he tried. He was arrested and charged with DUI, Less Safe (Alcohol) 40-6-391(a)(1); Driving with unlawful blood alcohol level – 40-6-391(a)(5); Failure to obey move over law – 40-6-16; and Reckless Driving – 40-6-390. John took a state-administered test at the police station and the result was .062. That is under the legal limit of .08.

We worked out a good deal with the Assistant District Attorney, and in the State Court of Chatham County Georgia, John plead guilty to Reckless driving. The three other charges went away. The first charge for DUI, Less Safe (Alcohol) 40-6-391(a)(1) was changed to Reckless Driving – 40-6-390. The second charge to Driving with unlawful blood alcohol level – 40-6-391(a)(5) was dismissed. The third charge for Failure to obey move over law – 40-6-16 was merged into the charge for Reckless driving.

Judgment: DUI under the limit reduced

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

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