By: William C. Head, DUI Lawyer of Atlanta
Bubba Head, DUI book author and veteran DUI lawyer Atlanta, was contacted by an attorney who was facing a seemingly hopeless Gwinnett County driving under the influence case. The blood alcohol results were 0.266, and the man had driven his car through his own home, while his wife sat in the passenger seat. This would be the accused attorney’s second offense DUI.
After taking his wife out for dinner and drinks, the client was entering his driveway when the car suddenly accelerated at full speed! The possessed car proceeded at full throttle through the back wall of the home, onto a wooden deck, and through the wooden railing of the deck! The car then sailed off the deck and into the back yard, launching itself a distance of over 27 feet and dropping 12 feet before landing on the ground–finally striking a massive tree!
Both the client and his wife were injured, but the client was more seriously injured (fractured back) than his wife. Neither one was still sitting in the vehicle when the police and EMTs arrived. The wife had managed to crawl to the front of the house, while the driver was on the ground outside the wrecked vehicle, lying on his back. Police reported “an overpowering odor of alcohol” as they came into the backyard area. Mr. Head’s client asked the arresting officer to help him stand up, and extended a hand to assist him to his feet. The police officer declined to allow him to try to stand up, in light of likely injuries.
When the client called Bubba Head for a “second opinion,” the case already was about a year old. The first Gwinnett County DUI lawyer had transferred the case from the local Municipal Court to the State Court of Gwinnett County, GA. After the initial drunk driving lawyer reviewed the case, he advised the client that the evidence was too strong and was “impossible to win.” That is when the client came to see DUI lawyer Bubba Head.
Mr. Head told client about a new appeal from the Georgia Court of Appeals that had been just been decided on a Georgia implied consent law issue that was similar to the facts of the client’s case. That case, Underwood, was from Cherokee County State Court. Additionally, Mr. Head had done some investigation of the vehicle recall history of BMW models from 1995, and consulted with DUI expert witness Bob Autry, a former Georgia State Patrol accident reconstruction expert. After gathering these experts, Mr. Head opted to waive jury trial and allow the Gwinnett County judge to hear the case as a non-jury (bench) trial.
The arresting officer, at the bench trial, admitted that he had called for an ambulance BEFORE locating Mr. Head’s client in the backyard. The officer also confirmed that the client admitted to the arresting officer that he had two glasses of wine, but the officer never established a timetable of WHEN the alcohol was consumed. The client also advised the officer that the BMW accelerator stuck, but otherwise was disoriented.
The officer testified that he came to the immediate conclusion that this man was drunk, but NOT seriously injured before he read the implied consent advisements to him. However, he sought to have the driver checked for possible head and neck trauma due to the circumstances of the crash. The issue of whether the driver was seriously injured was the key issue in the Underwood appeal.
The officer READ the implied consent notice to Mr. Head’s client in the ambulance, but never said “I am arresting you for DUI” nor stated in any way that he would be charged with DUI.
The implied consent warning was read again at the hospital, but still NO ARREST was ever announced. A copy of the DUI ticket was later handed to the client’s wife, who was also at the hospital being treated. By getting the officer at trial to admit that he did not assess the case as a serious injury case, Mr. Head was able to set up a way to block the 0.266 blood alcohol content results under the Georgia implied consent law. The trial judge was hesitant to agree, but eventually excluded the high BAC results from the case. Therefore, the DUI per se case was eliminated.
Once the Prosecutor “rested” its case with no blood alcohol test in evidence and no sobriety tests in evidence, Mr. Head put two witnesses on the stand. These were both DUI expert witnesses. First, a medical doctor explained that the manifestations of head trauma can mimic intoxication. The doctor also cited a well-known scientific article on the “smell of alcohol” by Burns, Moscowitz, and Ferguson that studied the ability of experienced police officers to accurately predict high blood alcohol levels from smelling the “strong odor” of alcohol on a DUI driver’s breath. The study concluded that police officers were not able to reliably correlate the strong odor of alcohol with high BAC levels.
Next, an experienced accident reconstruction expert, Robert (Bob) Awtrey, reviewed federal government recall records for sudden acceleration issues with this model of BMW [all 418,000 that were sold in the United States had a defective throttle control sleeve], as well as explaining the probability that the vehicle defect launched the vehicle through the house and into the backyard, rather than the driver causing this to occur.
Based upon the lack of evidence from the prosecutor (due to mid-trial rulings) and the DUI expert witness testimony of the doctor and the reconstruction specialist, the Gwinnett County State Court judge ruled that evidence was insufficient to prove beyond a reasonable doubt that the client was too drunk to drive. Case won!
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