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Atlanta Municipal Court – Client’s Test Refusal Not Honored

By William C. “Bubba” Head, DUI Attorney Atlanta Municipal Court

Atlanta DUI Lawyer William Head wins DUI case in Atlanta Municipal Court, for officer not honoring the driver’s “refusal to be tested”

In a 2006 case that was tried at Atlanta Traffic Court, William Head, DUI attorney Atlanta, was hired to fight a DUI-alcohol case with two very high breath alcohol test readings (0.192 and 0.194). The assigned Judge was Hon. Herman Sloan, of the Traffic Court of Atlanta.

After midnight, Mr. Head’s client was pulled over by DUI Task Force Officer Wright, for driving his Porsche at 117 miles per hour, through Atlanta traffic on the Downtown Connector (I-75/I-85) going northbound. The excessive speeding and the pullover by the police officer into a business parking lot (after he had exited I-75 northbound upon seeing the blue lights) were all captured on tape.

Predictably, the Atlanta DUI Task Force Officer made the arrest for DUI, for reckless driving and for speeding followed. Significantly, the officer only wrote the DUI citation for DUI per se alcohol under OCGS 40-6-391(a)(5), and not for DUI less safe, possibly due to no field sobriety tests being attempted by the speeding Porsche driver. The traffic tickets later were filed in the City of Atlanta Traffic Court, better known as the Municipal Court of Atlanta.

The DUI video of the Client’s encounter with the police officer showed significant impairment of the speeding driver, such as slurred speech, and unsteadiness on his feet. Mr. Head’s Client was clearly impaired. The arresting officer even laughed at the condition of the Porsche driver as he attempted to respond to questions and was asked if he was willing to perform field sobriety evaluations. The Client said, basically, why try to do field tests when I am drunk.

he Client initially met with Mr. Head after seeing two other DUI lawyers, who both suggested him pleading guilty to DUI, due to the high BAC levels on the breathalyzer device. One prospective DUI attorney thought that he could get the plea down to just the DUI charge, with some effort.

During the interview, the Client admitted to drunk driving, and told Mr. Head that he had tried to NOT take the breath alcohol test at the station, because he knew that he was drunk, and would not pass. He recalled telling the officer the same thing about the implied consent breath test as he did about not being willing to attempt field sobriety tests. He was TOO DRUNK, and would not take the tests.

he Client, who needed to NOT have a DUI conviction on his record, was referred by his corporate lawyer to William C. Head. Upon meeting with Bubba Head, the flaws in the arresting officer’s case were noted. Mr. Head told the accused DUI driver that he wanted to go to trial, to try to win.

The most obvious flaw was that the uniform traffic citation for driving under the influence only identified one type of DUI, the per se-alcohol offense for being over the legal alcohol limit of 0.08 grams percent. Plus, the Client tried to refuse, and a recent appeal (at the Georgia Court of Appeals) had upheld such attempted refusal of the implied consent breathalyzer test, throwing out a subsequently-obtained Intoxilyzer test.

This traffic ticket could have been amended to add the “less safe” DUI count before trial, but this amendment was never made by the Atlanta prosecutor. If this addition had occurred, Mr. Head was ready to transfer this case to State Court of Fulton County, for a possible jury trial.

Mr. Head agreed to resolve the case with a bench trial because the assigned Judge would understand the legal issues Mr. Head planned to raise, once “jeopardy” attached, by the trial starting. Mr. Head knew Atlanta Municipal Court Judge Sloan very well, and trusted his decision-making. Plus, if the case was transferred to Fulton County State Court, the additional DUI-alcohol less safe case would be added to the single count of DUI alcohol per se, was written by Officer Wright.

The day of trial, Mr. Head suggested to the Prosecutor that the issues be narrowed, and that his Client would (as part of the trial) agree (by stipulation) to plead nolo contendere (no contest) to either the reckless driving or to the speeding, but not both. Mr. Head also offered for his client to pay the maximum fine of $1000, if such deal was agreeable. The Prosecutor agreed for the reckless driving to be dropped as a charge.

So, the trial started in Traffic Court Atlanta, with only the single “count” of DUI, by being over the legal breath alcohol limit. When questions about IMPAIRMENT of the Client was asked by the Prosecutor, Mr. Head stipulated that this man “was the drunkest human being in Georgia<’ since this was NOT a DUI-impairment case. The Judge laughed at that stipulation, and cut off any more impairment questions from the Prosecutor.

At that point, the other type of DUI could no longer be added. Everyone understood that the whole case would come down to whether the State could get the breath test results into evidence. Once trial begins, the case cannot be amended, since “jeopardy” has attached.

The arresting officer testified, and stated that the Client AGREED to take a breath test at the police station after he had been placed under arrest and given his advisements of the consequences of either submitting to the official test or refusing the test that would be available at the police station. Under cross-examination by Mr. Head, this claim of agreement to be tested on the breath alcohol machine was changed to being that the Officer started the Intoxilyzer, and told the drunken man to come over and blow. The Client knew no better, and complied.

The prosecutor avoided introducing the video tape, and rested the State’s case without playing the video. DUI lawyer William Head insisted that the video be played for the judge to review. The Prosecutor tried to NOT comply, claiming that it was “his” video.

Mr. Head objected and cited the Constitutional right of confronting the evidence against him, and due process of law. At that time, in the Municipal Court of Atlanta, the prosecution only allowed defense counsel to come to their office to look at the tape, but refused to copy it. William Head told the Judge of the Atlanta Court that he had viewed the tape, and that it clearly showed the Porsche driver TWICE said he was not going to submit to any test, after the officer read the Georgia implied consent law notice to him.

Mr. Head cited the recent Georgia Court of Appeals decision, Howell v. State, 266 Ga. App. 480 (2004), and showed the Judge that Howell was directly on point. Judge Sloan then ordered the video to be made part of the record.

After viewing the video, and hearing from Mr. Head’s client, the Judge was compelled to exclude the breath test results. He then found the Porsche driver NOT GUILTY on the sole DUI charge, under OCGA 40-6-391(a)(5).

The Client paid the $1000 fine (plus surcharges) for speeding, and also provided the Atlanta Municipal Court Judge with proof of the 40 hours of community service that Mr. Head asked the Client to complete, long before the trial. This terminated the case with 0 points on the driving history of the client of William Head.

No probation was given, due to all conditions being met, and the Client departed the Atlanta Court, with his full driving privileges.

Call 42-year veteran Atlanta DUI attorney Bubba Head today and get honest answers to all your questions. Tell us everything that happened and everything you remember about your DUI arrest. The sooner you call us, the better chance we have to win your DUI case and get your charges reduced or dismissed.

Remember, you only have 30 DAYS to file a license suspension appeal or apply for an ignition interlock device, or your driver’s license will be suspended for up to one year! Talk to Bubba Head, Larry Kohn, or Cory Yager now. We are available 24 hours a day, weekends, and all major holidays. (404) 567-5515


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