Georgia DUI opinion re: demurrer
In a new Georgia DUI Opinion, the Georgia Court of Appeals reversed a DUI dismissal based on defective charging documents.
The case is Georgia v. King, and the opinion was issued on March 2, 2009.
For an indepth discussion of the case, see DUI Attorney News, and learn the Georgia DUI Law basics.
Georgia DUI breath test case addresses police pressure
On January 13, 2009 the Georgia Court of Appeals reinstated a breath test that had been suppressed based on the Georgia DUI defendant's testimony that she was, essentially, pressured into taking a chemical test after refusing it.
The trial court found the defendant's testimony credible, and believed that her assertion that she felt that she would be held in jail if she didn't cooperate and take the test.
The case is State v. Quezada.
The facts and Issue:
Prior to trial, Quezada moved to suppress the results of her breath tests, arguing that she did not voluntarily consent to the same. At the motion to suppress hearing, Quezada testified that she changed her mind and agreed to the breathalyzer test after Knight repeatedly asked her to do so, explaining "I just felt that I ... wasn't going to get out of there [the jail] unless I did it." On rebuttal, Knight testified that he did not repeatedly ask Quezada to take the test but instead merely told her that, if she changed her mind, she could take the breath test. Knight further stated that he did not threaten Quezada to get her to take the test nor did he offer her a benefit or other inducement to submit a breath sample.
The trial court credited Knight's testimony, finding that nothing in the evidence indicated that Quezada was coerced or threatened into submitting to the chemical tests. The trial court nevertheless granted Quezada's motion to suppress, based on Quezada's refusal, at the time of her arrest, to submit to chemical testing. The State now appeals from the trial court's order.
The question in this case is whether Quezada rescinded her initial refusal to submit to a breath test. In granting the motion to suppress, the trial court relied on Howell v. State, 266 Ga.App. 480 (597 S.E.2d 546) (2004), interpreting that decision as holding that once a suspect has refused to submit to chemical testing, the State may not thereafter ask the suspect a second time if she will submit to such testing. Howell, however, does not stand for such a proposition.
Holding:
Quezada, by her own admission, then "changed her mind" and agreed to take the test, (footnote omitted) in the absence or any threats or inducements by Knight. In light of Stapleton, therefore, we conclude that Knight did not act unreasonably and that the trial court erred in granting Quezada's motion to suppress. Accordingly, we reverse the trial court's order. (all emphasis added)
My Comments:
In some states this is not even an issue. In Arizona DUI law, for example, when a person refuses the officers can apply for a search warrant and forcibly take a blood test. When you compare even the (supposed) misinterpretation that the the trial judge in this case made to the law in states such as Arizona (which from my informal survey is probably the most extreme DUI jurisdiction in the nation), it shows how very differently DUIs are treated in the judicial system from state to state.
Right now we are working on putting together a comprehensive comparative guide to DUI law in all 50 states, which should be ready within the next month or so.
Georgia DUI roadblocks: A map to GA DWI law
On January 8, 2009, the Georgia Court of Appeals issued an opinion in a Georgia DUI roadblock case that does a good job of describing how GA law treats roadblocks. The case is Holowiak v. State.
There were two major issues in this appeal. The first was the Intoxilyzer 5000 source code. The court found that the defendant didn't jump through the right hoops for them to seriously consider compelling the testimony of the manufacturer of the Intoxilyzer line of breath test machines.
I am posting this case because of the last paragraph of the opinion, which is quoted below:
Here, the State established that all drivers were stopped at a specific location for a minimal amount of time; the roadblock was well identified as a police checkpoint; and the screening officer was sufficiently qualified. Further, the supervisory officer who initiated the roadblock testified that its primary purpose was traffic enforcement, "to enhance safe travel for citizens through the county to identify any drivers who were violating state laws and specifically looking for unlicensed or licensed violations and impaired drivers and remove those drivers from the roadway." The supervisor's memorandum regarding the roadblock confirms that the primary purpose during the New Year's Eve holiday was to "identify and charge accordingly those drivers who are operating motor vehicles in violation of State Laws" and especially to "identify those who are driving impaired or unlicensed and remove them from the roadways." "[A] roadblock that serves as a highway safety checkpoint is valid in its primary purpose, even if the safety violations for which the officers are looking are several." Kellogg v. State, 288 Ga.App. 265, 268(1)(a) (653 S.E.2d 841) (2007). The trial court did not err in denying Holowiak's motion to suppress evidence obtained as a result of the roadblock.
My thoughts of GA DUI roadblocks: A highway safety roadblock is a valid purpose in Georgia. I get that. What I want to know is what other reasons they might choose to do a roadblock?
Bent of mind okay in Georgia DUI cases
Georgia Court of Appeals has ruled that an odd “bent of mind” rule that allows for the use of evidence of prior acts in DUI cases to show a propensity to drive drunk is constitutional, although unique to Georgia.
The Cite: Wade v. State, Court of Appeals of Georgia, Issued December 2, 2008 (link will be posted when available)
Excerpts from the opinion:
The State provided notice of its intent to introduce at trial a prior DUI conviction to show Wade's bent of mind and course of conduct, and the trial court held a hearing during which Wade stipulated to the admission of such evidence at trial only to prevent the State's witnesses from having to appear, but reserved, with the court's permission, the issue of the constitutionality of the admission of such evidence for appellate review. We therefore treat Wade's arguments as preserved for appeal.
Wade argues that the admission of similar transaction evidence in a case such as this, a generic DUI charge arising from a roadside traffic stop, violates due process. As Wade notes, the law in Georgia has evolved to the point of allowing the inclusion of similar transaction evidence in the trial of an unrelated offense to prove, among other things, the defendant's bent of mind, as was done here.
Compounding this danger of improper prejudice, the probative value is low in cases such as this, where a generic DUI offense is at issue, because the State does not need evidence of a prior act to show motive, intent, identity, plan, scheme, or other generally accepted rationale for admitting such evidence. As we have already recognized, in exercising discretion as to whether to admit the inflammatory evidence of prior acts,
the court should consider whether the State's need for the similar transaction evidence outweighs the prejudice inherent to the defendant. This consideration consists of at least two questions. First, is the issue for which the State is introducing the evidence a genuinely disputed issue? For example, if identity is the State's announced purpose but is not an issue contested by defendant, then the probative value of the similar transaction evidence is acutely if not fatally diminished.
As Wade's identity was not at issue, and as DUI is not a crime of specific intent, Wade contends that there was no need for the State to introduce the evidence.
Wade points out that Georgia is the only state to recognize the bent of mind exception, and we have found no authority to the contrary. Professor Paul S. Milich has studied the topic and observed that " '[b]ent of mind' is neither a traditional nor widely accepted category for the admission of independent crimes or acts. Indeed, no other American jurisdiction uses it." It is this unique feature of Georgia's law that Wade now challenges.
Nevertheless, we are not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence here.
Accordingly, we are constrained to affirm the trial court's judgment, notwithstanding appellant's due process arguments.
My Analysis: Wow. My legal analysis is that this law is stupid and outrageous. The Defense in this case had one of the best and most accomplished DUI defense lawyers in the country, and still got stuck with this terrible ruling. Hopefully the Supreme Court of Georgia will fix this mess.
In the meantime, if you get a DUI in Georgia, the prosecutor can try to prove that you are a drunk in general to show that you were impaired on the date in question.
Really stupid and dangerous. From the opinion it sounds like the Court of Appeals here even thinks that the rule is insane, but doesn't want to overstep its authority and is therefore deferring to the Supreme Court.
