Forsyth County GA DUI Client was denied the right to obtain an independent test at the hospital location of his choice.
By William C. “Bubba” Head, DUI Attorney Atlanta
The case report of this Client of William Head starts with the fact that the Client had previously come to the Atlanta DUI lawyer for a prior Gwinnett County DUI arrest. Mr. Head was able to have that case reduced to reckless driving.
So, the Client had learned from Mr. Head what to do, if he ever faced with a new DUI arrest. When the Client was pulled over a couple of years later for a “lane violation” and arrested in Forsyth County, GA, he knew not to attempt any of the roadside evaluations (called the standardized field sobriety tests), but (if arrested for DUI anyway) that he should TAKE the State-administered Intoxilyzer test, but to demand his own independent test or tests, of his own choosing, from a hospital of his own choosing.
The arresting officer, a Forsyth County Deputy (now serving with Homeland Security) was known in Forsyth County, Georgia for his aggressive traffic stops and liberal use of verbal persuasion tricks to get people to comply with his requests for roadside evaluations. Thus, the Client was prepared for the barrage of demands by the Forsyth officer, but did not participate in any of the so-called sobriety tests or verbally self-incriminate.
The Forsyth County DUI officer was not deterred by not getting any field sobriety test evidence. He cuffed and stuffed the Client, and took him to jail for breath alcohol tests on an Intoxilyzer machine at the Forsyth County Jail. After blowing two breathalyzer results in excess of 0.180 grams percent, the Client asked to be taken to Northside Hospital, for a blood test. The Forsyth County GA officer refused, saying “I am not taking you to Atlanta.”
The Client explained that his mother was employed there, and that he had been born there, and that he had medical records there already. The Forsyth County DUI officer told him to pick another location, and then suggested to Client that Hall County, Gwinnett County or the local Forsyth County Hospital would all be acceptable. The Client told the DUI officer that, if he was not going to be allowed to choose, that the Forsyth police officer may as well select where to take him. The arresting officer went to the nearest hospital, which was Forsyth County, Georgia, about 4 miles away.
At a pre-trial motion hearing, Atlanta DUI attorney Bubba Head was able to get the reluctant Forsyth officer to admit that he refused to drive his Client to Northside Hospital. Additionally, DUI Lawyer William Head was able to get the Officer to identify the OTHER hospital locations that the Arresting Officer found to be acceptable places for a blood test. Mr. Head next got the Forsyth County DUI officer to admit that he did not know where Northside Hospital was located, and to admit that this was where the DUI attorney’s Client wanted to be taken for independent testing. Mr. Head then got him to admit that he did not know where Northside Hospital was located. He did not know.
Next, DUI attorney William Head used copies of screen shots taken from Google maps to demonstrate that both the Gwinnett County Hospital and the Gainesville GA (Hall County) Hospital were both further away than Northside, and (following Google maps directions) would take longer to reach than Northside, which was about 17 miles due south of Cumming, GA.
The Judge in State Court of Forsyth County, GA ruled against Mr. Head’s motion to exclude all tests proving a violation of the type of Georgia DUI law proscribing DUI-alcohol when the BAC is over the legal alcohol limit of 0.08 grams percent or more. Mr. Head then requested and received permission from the same Judge of Forsyth County State Court to request that the Georgia Court of Appeals review this important ruling. The Judge admitted that “it was a close call” and that he was initially undecided on the issue, but gave the Officer the benefit of the doubt about the refusal to accommodate Client’s request to go to Northside.
This ruling violated a core premise of judicial interpretation of Georgia implied consent law, that these statutorily-required evidential tests are “in derogation of common law” and must be strictly construed against the State. When the case was considered by the Georgia Court of Appeals, the Forsyth County DUI Court judge’s ruling was overturned. The Client DID have the right to choose. This appeal by William Head can be found at 245 Ga. App. 750 (2000).
Plus, because implied consent laws were not part of the Common Law (our laws that we enjoyed under English rule, before obtaining our independence), all issues relating to interpretation and analysis of these laws must be strictly construed against the State, because such new laws created NEW laws limiting our legal rights. These laws are in derogation of Common Law, and (by virtue of this rule of legal interpretation) require the State to be strictly compliant with setting forth the rules in a statute, and then strictly and precisely sticking to those rules.
These important prior appeals have firmly established this maxim, as it relates to implied consent law. “OCGA § 40-5-67.1 is in derogation of common law and must be strictly construed against the State.” Steed v. City of Atlanta,172 Ga.App. 839, 840, 325 S.E.2d 165 (1984). State v. Frazier, 229, Ga. App. 344, 494 S.E.2d 36 (1997). Also see, Hardison v. Chastain, 151 Ga.App. 678, 261 S.E.2d 425 (1979); State v. Gerace, 210 Ga. App. 874, 437 S.E.2d 862 (1993). The Georgia Constitutional provision relating to this important principle is Ga. Const., Art. I, §I, ¶XXIX, Enumeration of rights not denial of others.
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 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