The following courtroom victories have been acclaimed in What's the Decision, a magazine published by the Georgia Association of Criminal Defense Lawyers:

State v. D.C.
State Court of Clayton County

The Defendant was a commercial airline pilot. Previously, he was a fighter pilot of the U.S. Navy with numerous successful missions over North Vietnam. At the time of his arrest for DUI, he had no prior criminal record.

On the night in question, the arresting officer was dispatched to the scene of an accident on the outer wall of an exit on Highway 285. Unbeknownst to the responding officer, the radio dispatcher had given an improper location of the accident. The evidence showed that due to this mistake, it took police almost an hour to arrive at the scene. Upon arrival, the officer testified that the Defendant was injured, disoriented and had a strong odor of alcohol on his breath. A positive reading on the alco-sensor along with several broken beer containers located outside the vehicle confirmed the officer's belief that alcohol had been consumed by the Defendant. Based on that belief, an arrest was made. Following the arrest, the Defendant submitted to a breath test on the Intoxilyzer 5000 with the result of .155.

At pre-trial motions, defense counsel argued that the Intoxilyzer 5000 machine was not properly approved via the Administrative Procedures Act (APA). The judge ruled that although the State of Georgia had not complied with all the APA rules in adopting the machine, the breath test of .155 was nevertheless admissible. Defense counsel was granted a certificate of Immediate Review. After almost a year, the Court of Appeals held that even though all the APA rules were not complied with, the Defendant's breath test was still admissible because the State had "substantially complied" with the rules. Consequently, the case was sent back down to the Clayton County State Court for trial after a lengthy delay.

The theory of the Defendant's case was that indeed, no alcohol was consumed by the Defendant prior to or during driving the car. Rather, alcohol was only consumed after the accident to quell the pain resulting from the Defendant breaking his hand.

At trial, the most devastating testimony against the State came when the Defendant took the witness stand. His highly emotional testimony confirmed that he had only consumed alcohol after the accident to alleviate the pain in his hand that had become unbearable during the lengthy wait for the police to arrive at the scene. The Defendant further told the jury that this sort of "pain management" behavior was consistent with his military pilot's training in Vietnam.

During cross examination, the Defendant remained adamant about his innocence and in a credible fashion withstood a barrage of critical questions presented by the prosecutor.

After a two day trial, the jury deliberated for 25 minutes. They found the Defendant not guilty of two counts of DUI and one count of Failure to Maintain Lane. At the conclusion of the trial, the Solicitor expressed her disbelief in the verdict with the members of the jury. The jurors politely informed her that they found the Defendant's testimony to be "perfectly credible."

The Defendant was represented by GACDL member George Stein of Atlanta.

State v. J.M.
Cobb County State Court

The Defendant was arrested in Cobb County and charged with Failure to Maintain Lane DUI - 4th lifetime.

As a result of pre-trial negotiations, the State recommended that the Defendant serve 12 months in jail. In light of this harsh offer by the State, the Defendant opted to go to trial.

At trial, the arresting officer testified that he observed the Defendant's car weaving on Highway 75 and that upon stopping the Defendant he smelled a strong odor of alcohol. When asked how much he had to drink, the Defendant did not reply. The officer further noticed several open containers in plain view from the Defendant's car window. In addition to these initial observations, while exiting the car, the Defendant was unsteady on his feet and had slurred speech. This prompted the officer to administer a battery of field sobriety evaluations. They included the HGN and a field alco-sensor. The OLS and the Walk and Turn evaluations were not used due to the Defendant's pre-existing chronic hip ailment. At trial the officer said the Defendant performed unsatisfactorily on all field evaluations.

Consequently, the officer placed the Defendant under arrest and offered him a breath test after reading implied consent. When given the opportunity to blow into the Intoxilyzer 5000, the Defendant could not blow a sufficient amount of breath into the machine after several attempts. The Defendant repeatedly told the officer that his lungs had been burned in an accident and that he was unable to complete the test. This prompted the officer to re-read the implied consent warning and offer the Defendant a blood test. After being given this second option, the Defendant refused. (This case was tried prior to the Warmack decision).

Since this arrest represented the Defendant's 4th DUI charge, the State moved to introduce Similar Transactions prior to trial. The judge allowed the similars to come into evidence. During trial a Cherokee County officer testified in great detail how the Defendant was arrested on a prior occasion for DUI and how there were some amazing factual similarities in the prior arrest when compared to the current one. To minimize the potential damage, defense counsel only asked the Cherokee officer a few questions to test the officer's knowledge of the current Cobb County arrest. He consistently answered, "none."

The most noteworthy evidence at trial came during cross examination of the arresting Cobb County Officer. As a result of Defense Counsel's questions, it became evident that he was not well trained and lacked knowledge about Field Sobriety Testing. His lack of knowledge and lack of zeal while on the witness stand caused his performance at trial to be rather unconvincing.

Powerful testimony in favor of the defense came when Bill Taylor, an expert, took the stand. He testified that the officer made several mistakes while attempting to administer Field Sobriety evaluations to the Defendant. He further stated that the officer's lack of training was enough to cause strong doubts as to his conclusions at the scene of the arrest.

During closing argument, the defense strongly suggested to the jury that a verdict of not guilty was appropriate due to the officer's apparent lack of training. Defense counsel contended that the lack of training did not allow the State to meet its burden of proof beyond a reasonable doubt.

The jury deliberated for one hour and forty-five minutes. They returned a verdict of not guilty on the DUI and weaving charges.

The Defendant was represented by GACDL member George Stein of Atlanta.

State v. R.S.
State Court of Muscogee County

The Defendant was arrested in Columbus and charged with improper U-turn and DUI. The arresting officer had the Defendant perform the HGN test and blow into the Alco-sensor twice just prior to arrest. The arresting officer transported the Defendant to the station, read the Implied Consent Warning and had the Defendant submit to a breath test of the Intoxilyzer 5000. At pretrial motions, defense counsel was successful in suppressing the breath test due to the timing of the Implied Consent advisement; however, the Judge ruled that a similar transaction was admissible. After a thorough and sifting cross examination of the arresting officer and a closing argument designed by defense counsel to minimize the adverse effect of the similar transaction, the jury returned a verdict of not-guilty on the DUI charge.

The Defendant was represented by GACDL member George Stein of Atlanta.

State v. J.R.
State Court of Cherokee County

The Defendant was arrested in Cherokee County and charged with failure to maintain lane and DUI. The arresting officer testified that upon stopping the Defendant's car he immediately noticed a strong odor of alcohol and, therefore, administered the HGN, finger count test and the Alco-sensor. Following the arrest, the Defendant submitted to a breath test of the Intoxilyzer 5000 with the result of .137. The Judge denied the Defendant's pretrial motion to suppress, and the breath test result was admitted into evidence. During trial, defense counsel crossed the officer on the "amazing factual similarities" between the report prepared for the arrest of this Defendant and ten other DUI arrests the officer had made prior to and after this Defendant's arrest. Phil Hancock was presented as an expert witness and testified as to the inherent weaknesses associated with the breath testing machines in general. The jury deliberated for two hours and rendered a verdict of not guilty on the DUI and failure to maintain lane charges.

The Defendant was represented by GACDL member George Stein of Atlanta.

State v. N.O.
State Court of DeKalb County

The Defendant was arrested by the City of Chamblee Police and charged with Speeding and DUI. The arresting officer, who had not attended the NHTSA Standardized Field Sobriety Testing School, requested that the Defendant perform the one leg stand, recite his ABC's and touch his nose. The Defendant, a professional football player with the Seattle Seahawks who was recovering from a knee injury, recited his ABC's and touched his nose. However, the Defendant refused the state administered breath test. At a pretrial hearing, defense counsel moved to have the refusal suppressed. The Assistant Solicitor stipulated to the exclusion based on State v. Causey and State v. Leviner. At trial, the defense called Rick Swope as an expert witness and instructor in field sobriety testing for the purpose of listening to the arresting officer's testimony on the field sobriety tests. Mr. Swope also provided testimony that the tests given to Defendant were invalid in that they did not conform with the NHTSA field sobriety testing guidelines and that the officer was not qualified to accurately score the tests administered. The Defendant testified at trial providing a concise account of the events preceding the arrest. The jury deliberated for less than an hour and rendered a not guilty verdict on the DUI.

The Defendant was represented by GACDL member George A. Stein of Atlanta.

State v. S.S.
State Court of Cobb County

The Defendant, a new resident of the State Court of Georgia, was arrested by the Cobb County Police and charged with Improper Lane Usage and DUI. The arresting officer had the Defendant perform the HGN, the one leg stand and his ABC's. The Defendant was also administered the alco-sensor on two occasions. The Defendant allegedly refused to take the intoximeter test. A videotape was made of the arrest. A pretrial hearing was held with respect to suppression of the refusal; however, the Court found substantial compliance with O.C.G.A. Sec. 40-6-392(a)(4) and allowed the refusal to be admitted into evidence. The Defendant had no expert witness present to challenge the accuracy of the officers' scoring of the field sobriety tests; however, the videotape of the arrest was available to provide reasonable doubt as to the accuracy of the field sobriety tests. The videotape (with full audio) viewed by the jury showed the Defendant's satisfactory performance of the field sobriety tests administered and further showed the Defendant repeatedly asking the arresting officer for an explanation of the implied consent warning, with emphasis on the purpose of the "two breath tests" (alco-sensor tests) to which he had previously submitted. After two-hours of deliberation, the jury acquitted the Defendant of DUI.

The Defendant was represented by GACDL member George Stein of Atlanta.

State v. G.H.
Cobb County State Court

The Defendant was involved in a traffic accident on Chastain Road and was charged by the Cobb County Police with Driving Under the Influence. The Defendant's arraignment in State Court was scheduled for November 18. As the two month terms of court in Cobb County begin on the first Monday of the month, the September/October term of court ended on the first Friday of November and the November/December term did not begin until the following Monday. On that Friday, prior to the arraignment date, counsel filed a Waiver of Arraignment, a Motion for Discovery, and a Demand for Speedy Trial pursuant to O.C.G.A. Sec. 17-7-170. The Demand was properly filed and served in the September/October term of court. A motion hearing was set for December, and the case was placed on the January jury trial. The December motion hearing was reset at the request of the presiding judge, and the case was rescheduled for a motion hearing in January and placed on the February jury trial calendar. At the motion hearing in January, counsel presented a Motion for Discharge and Acquittal pursuant to O.C.G.A. Sec. 17-7-170. Upon investigation by the solicitor's office, it was determined that the State had not complied with the requirements of O.C.G.A. Sec. 17-7-170, and an Order for Discharge and Acquittal was signed by the judge.

The Defendant was represented by GACDL member George Stein of Atlanta.

GEORGE STEIN
DUI Lawyer
(404) 681-4000
24 HR DUI INFOLINE
Toll Free: 888-38-COURT

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