By William C. “Bubba” Head, Atlanta DUI Lawyer
Begging to be let go, she had a 0.25 portable breathalyzer test at the roadside but is acquitted at trial
A female, 33-year-old restaurant vice president was on her way home around 1:00 AM. She had been to a company party and had drank all the free booze she wanted. She went north on I-75, to I-575, and exited at Highway 92, going east toward Woodstock, GA.
Highway 92 is known for its heavy police presence in Woodstock, and she soon had an officer in pursuit of her vehicle for speeding in the 45 mph zone. As she traveled along Highway 92 in the City of Woodstock (Cherokee County), she slowed down and changed lanes from the leftmost lane of travel of the divided multi-lane highway, over to the left turn lane.
As she slowed to get into the left turn lane at the red light intersection leading to her subdivision, the blue lights came on. The police encounter and traffic stop were recorded on videotape by the Woodstock police sergeant handling the pullover for speeding.
Initially, the officer was only going to issue her a warning citation for speeding but noticed that the tag had just expired on her car. In asking her about this tag infraction, he then noticed the smell of alcohol on her breath. After a question or two about drinking alcohol, which she foolishly answered, the Woodstock officer asked her to get out of her car for sobriety field tests. She complied and did not know that she had the absolute right to decline all sobriety tests.
The first roadside screening test he offered was the portable breathalyzer device used in GA, the Alco-Sensor. This roadside breath analyzer is 100% optional, and the person requested can simply say NO. Having never been stopped and suspected of DUI, she did not know her legal rights.
He held up the digital read-out, showing her the 0.25 reading on the display screen. She began to get visibly upset and started sobbing, upon seeing the high BAC reading. Next, he tried to begin the instruction phase for the walk and turn (WAT) field sobriety test. After she started to try to perform this evaluation, she realized that she could not do it, and held up her hand and told the officer “I can’t do these tests.”
He offered other field sobriety tests, such as the alphabet test, and she said, “I can’t do any tests. She then told him, “Driving is not a good idea right now, and I should find another ride back to my house.” She pleaded with him to help her get to her home, which was a very short distance away. She told him that she had never been arrested before and was frightened.
Despite getting no field test evidence except the handheld portable breathalyzer test results, she was arrested for driving under the influence. So, the Woodstock officer still arrested her, and (after placing her in the rear seat of his patrol car) said to his other officer “It doesn’t get better than this!”
Next, the arresting officer read the Client the GA implied consent law advisement about her options and Georgia’s legal obligations regarding his requested implied consent breath test on the Intoxilyzer breath analyzer used in Georgia. The Client ultimately agreed to submit to the breath test.
Her Intoxilyzer breath test, taken at Woodstock Police Department about an hour later, showed a breath alcohol reading of 0.211 (the lower of the two exhalations). Then, she was driven to jail, where she later bonded out.
She was referred to Bubba Head by the president of her company. He told her to meet with Bubba Head, the author of the largest-selling DUI book in Georgia, and a highly rated DUI lawyer in Atlanta, to assist her with this difficult drunk driving case.
The female Client was very concerned about whether she could possibly win a case where she admitted that she should not have been driving. Plus, the cost of fighting the DUI arrest, and whether she would be punished for seeking a trial with such a high BAC level reading were other concerns of hers. She also wanted to know the penalties for a DUI in Georgia. Based on her interview with Mr. Head, she decided to fight the case.
Mr. Head and his private investigator went over all of the evidence in the DUI case. Importantly, the video showed that a conversation between the Woodstock sergeant and the client (who was still begging to be let go) about whether she should submit to Georgia’s implied consent breath test revealed the officer trying to convince her to take the test. He told her that a refusal would suspend her for a full year.
Then, he said to her, “If you blow into the test at the station and are under the legal limit, I will not charge you with DUI and will take you back to your home.” Shortly after she hesitated and agreed to take the breathalyzer at the police station.
Another important fact was uncovered by Mr. Head obtaining all arrest paperwork, including the uniform traffic citations for speeding and DUI alcohol per se (being over the limit). The client was only charged for driving while having an unlawful breath alcohol level, and not accused of less safe DUI (being too impaired to drive).
A bench trial at Woodstock Municipal Court was selected for the Client by Mr. Head, based on the fact that the Uniform Traffic Citation was drawn to only accuse the per se DUI alcohol offense. Mr. Head decided to not challenge the uniform traffic citation for the tag expiration or the speeding ticket.
The client’s defense was very straightforward. No DUI expert witness was needed for this case if the trial strategy worked. The portable breath test results obtained at the roadside are not admissible, under Georgia law. The case was only accused of the Client being over the legal limit of 0.08 grams percent or more.
Due to the erroneous and misleading statements made by the arresting officer about “allowing her to go home” and “not giving her a drunk driving charge” — which were irrefutably shown on video — after the officer spoke the implied consent warning out loud, Mr. Head was able to get the breath test results excluded by the trial judge in the middle of the non-jury trial.
The pre-trial motion in limine (suppression motion, to not allow the breath test numbers to be admitted into evidence), was successful. The judge ruled that an implied consent violation occurred when the sergeant gave her false hope and the relief of being “let go” if she performed the Breathalyzer tests. This violated Georgia’s implied consent law.
As such, the per se DUI case relied 100% on the test results that were brought into evidence, the trial judge had no choice but to find the Client NOT GUILTY of the DUI first offense. Her total speeding fine was $62.50, and this fine was waived because of the tag issue where she already paid the renewal fee before even showing up in court.
If you have a pending criminal case for impaired driving in Woodstock or Cherokee County, or ANYWHERE else in GA, call Bubba Head at 404-567-5515 or toll-free at 1-888-DUI-HEAD [1-888-384-4323] for a FREE PDF copy of his 430-page DUI book for clients, plus a FREE case evaluation by Mr. Head, and learn how to avoid a conviction for DUI.
E-mail Mr. Head your case information at email@example.com, for a quick return call from his DUI law firm, to set up an appointment. Because a DUI conviction is FOREVER – it never comes off your criminal history – pleading guilty to DUI is a huge mistake, if you have any chance to win.
Even if you have taken an Intoxilyzer 9000 breath test, don’t give up! This Client in Woodstock Municipal Court did not believe that she had any chance to win her DUI case, but she placed her trust in William C. “Bubba” Head.
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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