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DUI less safe

Nurse’s DUI down to reckless driving

Jason Cerbone · April 29, 2022 · Leave a Comment

Nurse DUI reduced to reckless driving

She needed this DUI charge to go away because she is about to be a nurse. She was pulled over on I-16 leaving downtown for Failure to maintain lane by the Georgia Department of Public Safety (Trooper). The trooper saw that her eyes were bloodshot, and her speech slow and slurred. She told the trooper that she drank four hours earlier. She did field sobriety tests and then she was arrested for DUI less safe.

In the State Court of Chatham County her DUI was reduced to reckless driving. Her Failure to maintain lane charge was merged (aka dismissed).

You always plead them non-guilty.

Jason Cerbone · May 1, 2016 ·

Why don’t I just throw myself on the mercy of the court? You never do. You always plead them non-guilty.

At 8:30 p.m. John and his wife ate dinner at The Crab Shack on Tybee Island in Savannah, Georgia. They ordered one Tybee Tea, one Crabber cocktail, two pounds of snow crab legs, low country boil, and one side sausage. After that they headed back to the hotel for the night.

The Georgia Department of Public Safety’s Georgia State Patrol Officer clocked a black Mercedes heading westbound on I-16 going 73 m.p.h. in a 55 m.p.h. zone. The officer stopped John and walked up to his door. At the door the officer claims he smelled a strong odor of an alcoholic beverage coming from John’s breath. The cop asked John how much he drank. John told him he had one drink three hours ago with dinner at the Crab Shack.

The DUI Nighthawk officer asked John to do some field sobriety tests to make sure John was safe to drive. John did them. They were the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Then the police officer asked John to blow in his hand held breathalyzer device on the side of the road. John tried to but the officer wrote in his report that John would not provide a valid breath sample. He arrested John for DUI less safe – 40-6-391(a)(1). He read him the Georgia Implied Consent Notice for Suspects age 21 or over and asked him to take a blood test. John said, “No.”

DUI less safe down to reckless driving

In the State Court of Chatham County, Savannah, Georgia we waited for the jury to be brought in by the bailiff. In the end there would be no jury trial. John plead his DUI less safe – 40-6-391(a)(1) charge down to the lesser charge of Reckless driving. The other charge for Driving under the influence (DUI) was changed.

Judgment: DUI less safe to reckless driving:

You always plead them non-guilty. DUI less safe to reckless driving - by Jason Cerbone - Savannah, Georgia DUI lawyer

2nd DUI down to reckless driving

Jason Cerbone · March 16, 2016 ·

This would have been his second DUI in five years. But, he was not under the influence of alcohol. So, he wanted to fight the DUI charge. We hired a DUI Field sobriety instructor. We were ready. The officer only did one of the three tests because my client had a leg injury. The officer did the Horizontal Gaze Nystagmus (HGN) test. He did it wrong and we had him on the video. Not only did he do it wrong, but he did it three times. This is unheard of. The training manual says that if you are not sure if HGN is there, then it’s not there. Here, he wasn’t sure if it was there until he did it three times. Three times a charm. Reasonable doubt?

We filed a Motion to suppress the field sobriety tests in this case because they were given in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and in violation of O.C.G.A. § 24-9-20(a).

In Price v. State, 269 Ga. 222, 498 S.E. 2d 262 (1998), the Supreme Court held that custody existed when the police officer told the defendant that she would go to jail regardless of whether she performed the field sobriety tests. The Court held that the tests must be suppressed because the defendant was not warned of her right against self-incrimination under former O.C.G.A. § 24-9-20 [§ 24-5-506 off. Jan. 1, 2013].

In our case on the video, Defendant asked the Georgia Department of Public Safety Officer, “If I deny taking the tests you can take me to jail, right?” The officer replied, “Yeah, I can take you to jail for DUI, because I can smell it on you.”

So we moved the Court to suppress the field sobriety test done in this case because my client was not warned of his right against self-incrimination before he did the field test. But the motion was never heard. We were able to work out a deal the night before the jury trial. My client plead down to Reckless driving.

Judgment: 2nd DUI down to reckless driving

2nd DUI down to reckless driving - Jason Cerbone DUI lawyer

DUI gone. Failure to exercise due care instead.

Jason Cerbone · March 15, 2016 ·

My client was arrested for Driving under the influence – 40-6-391(a)(1-5) by the Georgia State Patrol. She was stopped for Failure to stop at a stop sign – 40-6-72. The police officer asked her if she had drank. She said she had one Captain and Coke at Jalepeno’s Mexican Restaraunt. That was all that was needed to set the cop off.

He ordered her out of the car. Next came the field sobriety tests. Halfway through the Walk and Turn test my client stopped and asked the police officer if she could take off her flip flops. The officer allowed her. Then, bare foot on the cold dark road she tried these exercises for the first time in her life. Now if she misses touching her heel to toe by half an inch, she will fail the test. She was barefoot on the road at night, being investigated by a cop for DUI. Is it any wonder that she failed?

DUI down to Failure to exercise due care in the Recorder’s Court of Chatham County

We worked together and were able to keep this case in the Savannah Recorder’s Court of Chatham County. At the preliminary hearing the District Attorney allowed this case to be plead down to the charge of Failure to exercise due care. My client was happy. What else matters?

Judgment: DUI gone. Failure to exercise due care instead.

DUI gone. Failure to exercise due care instead.

Effingham DUI reduced to Driver to use due care

Jason Cerbone · December 8, 2015 ·

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

Effingham DUI reduced by Jason Cerbone the Savannah DUI lawyer

Pooler DUI less safe dismissed

Jason Cerbone · December 7, 2015 ·

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

Pooler DUI less safe dismissed by Jason Cerbone DUI Lawyer Savannah, Georgia

It was a loser but we won.

Jason Cerbone · December 5, 2015 ·

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

It was a loser but we won.

DUI reduced to Reckless Driving for Contractor

Jason Cerbone · December 3, 2015 ·

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

DUI reduced to Reckless Driving for Contractor

DUI Dismissed at Motion Hearing

Jason Cerbone · August 9, 2015 ·

Chris was arrested for DUI less safe. He is a Savannah College of Art and Design (SCAD) student. He is an entrepreneur who has been featured on the cover of the Savannah Morning Newspaper. He couldn’t afford to have a DUI on his record for the rest of his life.

The Georgia State Patrol officer wrote in his report that the black BMW had an inoperable headlight when he stopped him on Oglethorpe Avenue. The officer smelled alcohol and asked Chris how much he had to drink that night. Chris said one drink. The officer asked him if he would take some field sobriety tests. Chris replied, “No.”

The officer placed Chris under arrest for DUI less safe (alcohol) – 40-4-391(a)(1); Driving under the influence – 40-6-391; and Violation of headlights requirement – 40-8-22. The officer then read him the Georgia Implied Consent card and asked Chris to take a blood test. Chris asked to speak to a lawyer. The police officer interpreted that as a refusal.

Chris hired me to fight his DUI charges. We were headed to a jury trial. But the judge dismissed all three charges at the Motion to suppress hearing in the State Court of Chatham County.

Judgment: DUI Dismissed at Motion Hearing

DUI Dismissed at Motion Hearing - Jason Cerbone DUI Lawyer

Bryan County GA DUI Gone for Military Officer

Jason Cerbone · May 6, 2015 ·

David is a Joint Terminal Attack Controller for the U. S. Air force. He was arrested for Failure to maintain lane, and DUI – Refusal. He fought the DUI, and won. He settled for Driver to use due care. The charge for Failure to maintain lane was merged. Here is what happened.

The Richmond Hill Police Department report said that David struck the shoulder line on three occasions, put on his blinker, and turned right. At the window the police officer asked David if he drank tonight. David said he had one beer. The cop wrote in his report, “I asked if he would submit to taking some field sobriety tests, which agreed. While attempting three standardized field sobriety tests, David stated he had medical conditions that prevented him from taking them.” The officer did not do any of the three field sobriety tests. He decided to give David the preliminary breath test, and then he arrested David for DUI. He read David the Georgia implied consent for suspects 21 and over (an orange card), and asked him if he would take a breath test. David said, “No.” He was arrested for Failure to maintain lane, and DUI – Refusal.

The officer asked David to do field sobriety test. David agreed. The officer then asked David if he had any medical problems that would prevent him from doing the tests? How would David know? He doesn’t know what the surprise tests will be. David told the cop that he has chronic knee problems from an earlier injury. David answered the cop’s interrogation questions. David never told the cop that, “he had medical conditions that prevented him from taking them.” For one, he doesn’t know what the tests will be. Second, David thought he had to do them. As David stood there, the officer decided not to do any of the three standardized tests, and told David to blow into the hand held breath test on the side of the road. Once again, David submitted to the officer’s demand thinking he has no choice. Then he was arrested.

Final Judgment: Bryan County GA DUI Gone for Military Officer

Richmond Hill dui to due care - Jason Cerbone Savannah DUI Lawyer win

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300 Drayton ST FL 3,
Savannah, GA 31401
+1-912-236-0595
jason@cerbonelaw.com
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