By: William C. “Bubba” Head, Marietta DUI Lawyer
February 1-3, 2016 – Jury Trial in Marietta, GA in the Cobb County State Court – DUI first offense – The alleged failure to maintain lane not captured on police video – (DUI less safe – OCGA 40-6-391, reckless driving – OCGA 40-6-390 and failure to maintain lane OCGA 40-6-48) – Represented by Bubba Head, DUI Lawyer Cobb County
An alleged improper lane change on Paces Ferry Road in Marietta, GA shortly after 2:00 AM on a very cold February night in 2015 led to a DUI arrest in the Vinings area of Cobb County, GA. A veteran Cobb County DUI task force lieutenant initially had the patrol car video camera running without the audio function activated. The Cobb County Police car was in the left lane of the two travel lanes of Paces Ferry Road.
The Cobb County patrol vehicle’s path to the right-hand turn lane (there are two left turn lanes to go onto Cumberland Parkway) was smooth, straight, and uninterrupted with no braking or diversion from the path being detectable. Yet, while sitting at a red light (with no other vehicle visible in the left lane of the two left-turning lanes), the lieutenant turned on the audio portion of his DUI video system.
Then, he activated his left turn signal, and the rhythmic clicking began. Very little traffic was coming from any direction at that late hour.
Once the traffic signal showed the green arrow to the left, neither the SUV driven by Mr. Head’s Client nor the patrol car moved forward, for about 2 to 3 seconds. Then, the dark SUV driven by the Client proceeded through the light, keeping a wide berth from the right-hand turning lane, where the police car was simultaneously turning.
The patrol car stayed in the right lane as both cars slowly proceeded along Cumberland Parkway, but when the Client turned on his left turn signal (less than 10 seconds after turning) to make the first left turn, the lieutenant swiftly shifted over behind the client to follow the SUV, activating the blue lights, which required Client to stop immediately after turning left.
DUI lawyer Bubba Head knew this lieutenant’s prior history of making similar pullovers and knew that the client was likely the one telling the truth. This background and prior knowledge of this Cobb County officer helped the Client and his parents decide on retaining William Head as the DUI attorney to fight the case for them. The client had recently graduated from Georgia’s top engineering college with high honors, and a DUI conviction would create severe DUI consequences in his search for a new job.
The family was only interested in hiring a DUI attorney who knew how to beat a DUI in Court, since this case would require a trial, to win it.
This seizure of the Client and his vehicle was a Fourth Amendment seizure and pullover. A pre-trial motion to suppress was filed, wherein Mr. Head sought to have the trial judge rule that an illegal pullover and search and seizure took place. The client testified at the motion hearing to refute the unseen traffic offense, but the judge elected to believe the lieutenant’s version and denied the suppression motion.
Although Mr. Head expected this Judge to rule as she did, the transcript of this motion hearing was vital to the trial that was coming a few weeks later. A motion to suppress like this has a lower standard of proof than a jury trial.
The only trial Mr. Head ever lost in this Cobb County State Court Judge’s courtroom was a bench (non-jury) trial. So, DUI attorney Bubba Head asked for a trial by jury for deciding his Client’s guilt or innocence on the DUI, the reckless driving, and the failure to maintain lane charges in Cobb County State Court.
Mr. Head had already decided that the Client would not testify at the trial, due to the favorable transcript obtained on both police officers at the pretrial motion hearing. Procedurally, the motion to suppress did not end this case, but the valuable testimony captured at the motions hearing armed Mr. Head with the tools of impeachment and possible inconsistent statements that would be coming at the trial of this GA DUI case.
After a jury was selected, in his opening statement, DUI defense attorney Bubba Head told jurors that his 24-year-old Client consistently denied (on the police video) that any such initial lane violation offense took place at all, and that the pullover by the lieutenant was 100% pre-textual, and without a proper legal justification or basis.
Furthermore, he told them that they would not see a shred of proof of reckless driving or lane violation, on the police video, in this trial. Lastly, Georgia DUI attorney Head told the jurors that they needed to listen and watch the video evidence very carefully and to focus on the claims by the police officers about the “reliability” of field sobriety tests conducted by police.
But, Mr. Head as the jury to be certain to wait to hear from the two true experts on these sobriety tests, which would only come after the State rested its case and the defense could be started by Mr. Head. An opening statement in a DUI case is intended to prepare jurors for key evidence, and the TIMING of when they will hear it.
Despite the lieutenant not capturing on video the alleged basis for the use of police emergency lights to make the traffic stop, the lieutenant’s police car video was a VERY important part of this case. In his opening statement to the jury, Atlanta DUI Lawyer William Head meticulously highlighted the upcoming sequence of events shown on camera, which included no braking and no change of path of the patrol car, as had been claimed at the pre-trial motion hearing.
Mr. Head made sure that the jurors were looking for the immediate blue lights and instantaneous pullover of the Client’s SUV, as soon as he made his first left turn after proceeding through the traffic light.
The lieutenant was shown on the police DVD walking up to the driver’s side window, where he questioned the Client. In this initial conversation and throughout the police encounter, the Client seemed cogent, polite, and fully normal, judging from the audio. Yet, the lieutenant claimed to hear “slurred speech” and “mumbled speech” from the Client. The second officer to the scene also claimed to hear this and wrote the same description in his written report, but slurred speech simply was not there.
This “exaggeration” became an outright deception, and DUI lawyer Bubba Head made sure jurors were allowed to hear the entirety of the Client’s words and phrasing on the video twice. As he paused and moved forward through the arrest video, Mr. Head challenged either officer to tell him where to stop, in order to let the jury hear some of this alleged slurred speech.
This never happened, because no slurred speech existed. The client’s speech was far more understandable than the arresting officer’s.
After some questioning of Client about when, where, and what alcoholic beverages he had to drink (which Client foolishly answered), the lieutenant walked back to his patrol car and could be heard unwrapping a plastic breath alcohol testing tube from a cellophane wrapper, used for activating the battery-powered, hand-held Alco-sensor, a portable breathalyzer used by police in Georgia to get a positive or negative reading for alcohol.
Then, the lieutenant (who had inserted the plastic mouthpiece to “ready” the portable breathalyzer) walked back up to the idling SUV and tried to put the breath tube of the preliminary breath test device in the Client’s mouth. As he was doing this, the lieutenant was telling the recent college graduate that he (the officer) wanted to try to get him out of there as quickly as possible but needed him to blow into the PBT. That was a bald-faced lie, which was clear from the rest of the case evidence.
Instead of blowing, the Client asked the lieutenant if this hand-held breath test was required to be taken. When told “no,” the Client politely declined to blow into the PBT. That seemed to irritate the lieutenant. After aggressively questioning the Client as to why he won’t take the VOLUNTARY and 100% OPTIONAL breath alcohol screening test, the lieutenant then walked back to his patrol car and called in Cobb County Police dispatch, and asked for another Cobb County DUI task force officer to be sent to the scene.
Our Client continued to sit quietly in the driver’s seat of his SUV.
The DUI task force officer from the Cobb County police department showed up in less than 5 minutes, and his camera was rolling as he approached the scene. The new Cobb County officer first went to confer with the lieutenant, who briefed the arriving officer on the CLAIMED bad driving, the admission of drinking alcohol in the Buckhead section of Atlanta, and that Client refused to blow into the preliminary breath alcohol test.
Because the Client’s SUV was on a slope, the officers decided to have the Client walk down to a more level spot about 50 yards away, behind a Home Depot store. The lieutenant’s video showed the Client smoothly and effortlessly walking side-by-side with the lieutenant, without any sign of difficulty, weaving, or loss of balance.
At trial, the lieutenant testified that he had been a police officer for 22 years and had taken the SFST practitioner course 6 times, and explained all of his experience at identifying and arresting drunk drivers. This is a typical pattern of bolstering prior years of experience to make it seem (to the jury) that such an experienced officer does not make errors.
But, as DUI attorney Head emphasized in his cross-examination, this highly experienced officer did not conduct the field sobriety tests on the Client, yet he somehow wanted the jury to believe that merely because HE said this young man was drunk, it must be true.
During Mr. Head’s cross-examination, however, the senior DUI officer was spewing out totally incorrect information about the extremely high reliability of the field sobriety tests. In his opening statement, Mr. Head had specifically told the jurors the TRUE statistics on the reliability of the field sobriety tests, and several had made notes on their notepads that were supplied by the Judge before the trial started. This exaggeration was brought out and gone over by the Atlanta DUI attorney, so jurors would see how glibly these lies were told.
Instead of simply saying he let the other officer decide about this DUI arrest decision, the lieutenant made it sound like he KNEW all the published statistical results from the original 1977 NHSTA study, which was conducted in Southern California.
When cross-examined further, he adamantly claimed that the only flaw in the findings by the 1977 researchers was that too many “false negatives” (test subjects whose alcohol level was over the legal alcohol limit but who were not identified as “an arrest decision” by the officers in this study who were trying to detect which of the 238 test subjects were 0.10 grams percent.)
This legal alcohol limit (0.10) was the national standard for being “over the legal limit” at that time, in 1977). The sworn testimony given by the lieutenant was of great significance and was later proven to be 100% false. Significantly, DUI lawyer Head gave him a chance to correct this or admit that he REALLY did not know the data, but he again told the lies to the jury.
What criminal defense attorney William Head had told the jurors in the opening statement was that the 1977 original laboratory study did not have any significant problem with FALSE NEGATIVES, meaning that the officers in the laboratory study were not making an arrest decision on these test subjects. The TRUTH was that 47 of 101 people under the legal limit were arrested, and the contractor performing the study, Dr. Marcelline Burns, put in her official report that this rate (47%) of false positives was “UNACCEPTABLE”.
When asked by DUI attorney Bubba Head about the false POSITIVES reported in the 1977 study, who were wrongly identified as needing to be arrested (which Mr. Head had told the jury about in his opening statement), the lieutenant said “NO, not a problem at all. The number was infinitesimal.” This was not just a wild guess. It was a bald-faced lie.
Shockingly, the other Cobb County police officer (who made the DUI arrest) also misstated this exact same “false negative” information but did not claim to know anything about the false positive rate. So, either police training was being routinely slanted, or the lieutenant and the junior officer conferred to go over this before trial.
The younger arresting officer also claimed to have read the so-called NHTSA Robustness of Horizontal Gaze Nystagmus (HGN) study from 2007, but could not tell recall any details from that government-sponsored report. The arresting officer was well aware that Mr. Head had told the jurors that he conducted the HGN (horizontal gaze nystagmus) test improperly, and tried to defend the manner of giving this HGN eye test.
Both officers incorrectly testified that the NHTSA standardized field sobriety test (SFST) three-test battery was designed to identify IMPAIRMENT and not the TRUE purpose of the sobriety test evaluations. Sobriety tests like these have NEVER been correlated to driving impairment, and Dr. Marcelline Burns published this disclaimer in her report and has publicly said this for decades.
The PURPOSE of developing roadside evaluations was to enable police officers investigating drunk driving suspects to use the evaluations to predict which drivers would score above the legal alcohol limit, when and if the detained DUI drivers later took the evidential breath alcohol test or a blood alcohol calculator test. In Georgia, at the time of this 2015 arrest, the Intoxilyzer 5000 and Intoxilyzer 9000 were still being used.
Even more outrageous and false was the lieutenant’s claim that the accuracy rate for the three NHTSA field sobriety tests was “in the 90 percent” or better range. To support this claim, he pointed to the so-called “validation studies” paid for by the federal government in the mid-1990s (the so-called San Diego study, the Florida study, and the Colorado study), which were not done in a scientific manner, were not overseen by trained scientists, and did not follow the scientific method in the slightest way.
Once again, he falsely told the jurors that ALL officers in the validation studies were overseen by SCIENTISTS, to assure that the evaluations were being done correctly. Waiting in the wings to testify for the defense was a true scientist and researcher who KNEW that what the lieutenant was claiming was 180 degrees opposite of his claims.
The “validation studies” were primarily dreamed up, as a means of trying to show that EXPERIENCED police officers could reliably identify suspected intoxicated drivers at the new, national legal alcohol limit of 0.08 BAC or higher since the original studies were conducted to try to identify drivers at a 0.10 BAC level.
Many states had already moved to the new, stricter standard, when (in late 2000), then-President Bill Clinton ordered new federal regulations in place, that required that if states that did not lower their adult blood alcohol per se standard to 0.08 grams percent, the State would lose federal highway funds.
In conducting the so-called “validation studies, Dr. Marcelline Burns was called upon, again, and PAID again, by the federal government to create “protocols” that were to be followed, and all results were tallied from three different police departments in three different states. This time, less money was available for the studies, and these bogus investigations changed the “overseers” from trained scientists, as done in the 1977 and 1981 NHTSA studies, to merely called for civilian “observers” to ride along and keep up with each arrested driver’s “results.”
In fact, this was not followed in many instances, and the police officers involved in the studies GRADED each other! The validation studies were pure fraud, insofar was claiming that these studies followed the scientific method.
One example of the lack of oversight, was when Dr. Burns prohibited the use of hand-held portable breath testers, yet one of the three departments used them anyway. No true scientific method of false positives or false negatives was utilized, and the officers in the study were only tracked on the people they arrested, not those who were released. No data was kept to demonstrate how often a person who was truly 0.08 or more was wrongly released. This ended up, in two of the three “validation” studies, with the people who were actually arrested by police in the validation studies being nearly DOUBLE the legal limit, on average! So, to make their “numbers” look better, the cops were only arresting the obviously inebriated drivers that they pulled over, after seeing errant driving.
So, this sanctioned and undisciplined “farce” was instigated by NHTSA (and paid for with federal funds) to try to bolster (falsely) the myth that experienced field sobriety test officers (like this lieutenant and his backup police officer) could reach near perfection in determining who was impaired and who was not impaired. This was a whitewash of Biblical proportions, yet the federal government allowed police trainers to TELL their officers that if they had full training, they could achieve near 100% correct arrest decisions.
This is pure fraud, and was sanctioned by our federal government, to the detriment of hundreds of thousands of unimpaired drivers who have been arrested — and many of those citizens convicted —- because they took these bogus field sobriety tests, and opted to not hire a top-rated DUI lawyer to help them fight their DUI charges.
To refute the false testimony, DUI lawyer Bubba Head called two true expert witnesses to straighten out the lies told by the lieutenant. One was Dr. Spurgeon Cole, a clinical psychologist possessing three psychology degrees from the University of Georgia and 40 years of teaching, research, and writing experience. His specialty was “testing and measurement” in any and all aspects of human performance.
Plus, the Atlanta DUI attorney brought in ex-cop Anthony Palacios, a former DUI task force officer in Forsyth County, who later went on to be a Georgia state police academy instructor of over 3000 Georgia police officers at GPSTC (Georgia’s State Police Academy) in Forsyth, GA.
The testimony from these two DUI expert witness specialists provided the truth to the jury about the 1977 and 1981 studies. Dr. Cole eviscerated the police officers’ testimony by reciting the “false negatives” problems with 1977, 1981, and other NHTSA studies overseen by Dr. Marcelline Burns. This DUI expert witness gave precise numbers for false positives, for reliability (not accuracy), for “inter-rater” reliability, and similar statistics. All of these FACTS were part of the published, available statistical data that was collected by Dr. Burns and her Southern California Research Institute team.
DUI expert witness Palacios had all the valuable statistics on the HGN Robustness study from 2007, to demonstrate that the junior officer did that DUI eye test in a manner that CREATED nystagmus on Mr. Head’s client, and led to a 61.1% error rate, in controlled studies.
Once Mr. Head proved (using Dr. Cole) that the overseers in the “validation studies” were merely other cops on the same police force and that the cops involved in the “study” took turns “overseeing” each other, the jury knew that the lieutenant had lied to them. The cops in the three validation study locations KNEW that their arrest accuracy was being tracked for publication in the study, and in one study, the average BAC was over 0.16, due to the cops involved letting all others go so as not to risk arresting anyone under 0.08 grams percent.
Furthermore, no data was collected or obtained on the detained drivers as to the driver’s TRUE BAC level (with the exception of the study where Alco-sensors were improperly used).
DUI expert Palacios was also helpful at this trial in explaining how the STANDARD police training never delved into the TRUE unreliability of the 1977 and 1981 studies. Mr. Head asked how many DUI arrests he personally made and how many DUI videos he had reviewed. In both cases, the answer was “MULTIPLE THOUSANDS”. I asked him how many officers he had trained, and it was in excess of 3,000. He testified that he had taken EVERY possible DUI training course and DRE course in existence and had the highest level of training of anyone in the State of Georgia.
Then, I got him to admit that NONE of these training courses he took mentioned or discusses the false positive rate of 47 of 101 subjects in the 1977 study at all. Yet, the lieutenant, with a fraction of the training of Palacios, had somehow been made privy to these statistics. So, here again, the lieutenant just plain LIED to try to bolster the case.
Of great importance was the transcript from the pre-trial motion hearing. Using that, DUI Lawyer William Head questioned the lieutenant, using prior sworn testimony to impeach him wherever he got off track. After many questions, the lieutenant finally admitted that EVEN IF the Client had blown ZERO in the Alco-sensor portable breath tester, the Client was not leaving the roadway until a full investigation was done. This was a critical admission that the jurors were affected by, from their body language and facial expressions.
The lieutenant boldly and arrogantly claimed that he had seen sufficient “evidence of impairment” from Client’s driving actions (which he did not observe at all), speech patterns and admission to drinking alcohol earlier that evening, that if this “impairment” was not from alcohol then it had to be coming from drugs. Pure guesswork, and speculation, just because this young man did not do well on roadside “sobriety tests.”
This pure guesswork was resoundingly refuted, due to the second Cobb County officer, after being “briefed” by the lieutenant, offering Client two more chances to blow into a preliminary breathalyzer machine at the roadside, both of which were declined by Client.
Then, after the DUI arrest, and when cuffs were on Client’s wrists, the same arresting officer while being watched by the lieutenant from 4 feet away, read the Georgia implied consent card to Client and requested an Intoxilyzer 9000 BREATH test, despite three refusals to submit to a breath alcohol test.
The lieutenant at no point in time corrected the arresting officer to say, “No, we need a BLOOD test,” which meant that the lieutenant had just contradicted himself. If he THOUGHT drugs might have REALLY been the impairing substance, then (since no Alco-sensor results were collected or known) requesting a blood alcohol content analysis was the ONLY WAY TO CHECK for quantification of the drug levels in the Client’s body. The Intoxilyzer device – and all “breathalyzer” devices used across America — ONLY check for ethanol, the scientific term for “drinking alcohol.”
So, Atlanta attorney Bubba Head told the jury in closing, that the lieutenant was either LYING to his client at the roadway or lying on the witness stand, or both. Plus, Mr. Head told the jurors that the lieutenant’s original claims as to how and why the Client was pulled over were refuted by the lieutenant’s own videotape.
This senior police officer claimed that as he was approaching the two left turn lanes off Paces ferry to Cumberland Parkway, he glanced in his rearview mirror and saw that Client had gotten over in the “suicide lane” BEFORE the dotted white lines allowed movement into the left turn lanes, meaning that Client crossed the solid yellow line and was coming up so fast that an accident almost occurred since the lieutenant claimed that he intended to move to the far left turn lane, of the two left turning lanes available. Nothing on the DVD supported these claims.
The lieutenant again exaggerated or lied when he claimed that Client nearly struck his patrol car and that he had to hit his brakes and adjust his patrol car’s path as he planned to move into the far, left lane of the two turning lanes. The lieutenant’s arrest video refuted this, and at the motions hearing, DUI Attorney Head had his Client testify that this never happened and that the lieutenant was already stopped at the light as the Client rolled up to the other left turning lane.
At trial, Mr. Head did not put up a Client, because — with a JURY — this often distracts the jury from focusing on the fact that the STATE has 100% of the burden of proof in a criminal case. Any experienced drunk driving lawyer knows this general rule and almost invariably has his or her Client remain silent if and when a video and audio recording was made at the scene of the pullover and arrest, as existed here.
The arresting officer’s report was a regurgitation of the lieutenant’s claims. Slurred speech, poor coordination, inability to recite a partial alphabet, etc. However, NEITHER officer, after watching the video TWICE with the jury, could point to a single word or phrase where the Client slurred.
Plus, the arresting officer had his microphone attached to his belt, and the sound – and his speech pattern — was rushed, mumbled, and even ran words together. During the arresting officer’s reading of implied consent, his voice and speech were definitely not clear, and he conceded this on my cross-examination. The corded microphone could be lifted up (and the arresting officer DID lift it up, to mumble into the microphone during the field sobriety tests in a whispered voice) showing that the audio could have been clearer.
On my cross of this officer, I played 100% of the video again, and asked about his muffled and mumbled speech, and then asked the officer to point out a single slurred word of my client’s speech.
Here was the UNIQUE, winning ticket. The prosecutor had stated in the State’s opening statement and also later in the closing argument that Client “had 17 of 18 possible clues of impairment” on the 3-test, field sobriety test battery. Plus, he told the jury that this college graduate was not able to recite the partial alphabet, starting at “C” and stopping at “X”, without singing it, due to intoxication.
Mr. Head, in his closing, focused on the ONE thing that the Client did correctly, and that was to NOT put his foot down during the 30-second one-leg stand test. Although the Client hopped on one foot during the entire “one leg stand” sobriety test, the raised foot never touched the asphalt surface. The hopping was not done “in place” as the Client turned 45 degrees or more, and back, in various directions, and somehow was able to NEVER put his raised foot down for 30 seconds, despite hopping.
During Tony Palacios’ direct examination questions, Bubba Head stopped and asked him to think long and hard about this before he answered. “Have you EVER seen ANY field sobriety test subject start hopping and hop continuously through the one leg stand (OLS) test, and NOT PUT HIS OR HER FOOT DOWN at least once?” He paused and then said, “NO, I have never seen that done by anyone in all of the thousands of videos and cases I have reviewed.”
Palacios also decimated the arresting officer’s performance on the HGN as being done too high and likely producing nystagmus. He cited Table 13 of the Robustness study, and the 61% false positive rate revealed by the Robustness study when the stimulus was held too high, as was done with the Client.
Palacios also knew the BAC of the LOWEST false positive in Figure 13 of the 2007 Robustness study, which was a mere 0.019 grams percent, and the arresting officer’s claim (in that incorrect “guess” about an arrest decision, after allegedly finding 6 out of 6 clues — the same number of clues exhibited by Mr. Head’s client.
Based on this remarkable balancing performance, DUI attorney Bubba Head told the jurors: “I guarantee that NOT ONE OF YOU can hold your arms to your sides, and hop around on one foot raised 6 inches off the ground, changing the orientation of the planted foot as Client did, for 30 seconds.”
So, Mr. Head basically told the jurors that NO DRUNK PERSON could pull off this feat and that the Client’s voice, speech patterns, polite behavior, and cooperative attitude on the police video supported sobriety, not impairment. Attorney Head also pointed out that the officer’s instructions (nor NHTSA’s training) say to NOT HOP, and when the Client asked (during his hopping) if hopping was OK, the officer gave no response.
The Cobb County, Georgia jury deliberated for almost 4 hours and only came back into court one time, to replay the very first part of the arrest DVD, to look for any signs of the lieutenant’s “claimed” diverting of his driving path, before delivering all three NOT GUILTY verdicts.
Call 41-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 our DUI law firm, the better chance we have to win your case.
Remember, you only have 30 DAYS to file an administrative license suspension appeal at Georgia DDS or apply for an ignition interlock device, or your driver’s license will be suspended for up to one year! Do not miss this Georgia implied consent law deadline!
Talk to Bubba Head, Larry Kohn, or Cory Yager now. We are available 24 hours a day, on weekends, and on all major holidays. (404) 567-5515
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