A. Day – TRIAL OF DUI CASE WITH NO BREATH TEST OR BAC RESULTS

Recently, I tried this case in Dekalb County State Court.  My client, (renamed to protect her privacy as “A. Day”) was a very professional young woman who was arrested at 3:00 a.m. on New Year’s Eve.  Ms. Day was pulled over for speeding on Peachtree just where the speed limits change suddenly from 35 to 45.  There were few cars on the road at the time, and Ms. Day slowed down, then safely pulled off of Peachtree and into a well lit parking lot.  All of the maneuvers she took in pulling her car over were conducted safely, meaning that she signaled and did not weave or demonstrate any unsafe driving clues.

The officer, a DUI task force officer, was polite and professional throughout the encounter.  He asked Ms. Day how much alcohol she had consumed that night, and then put her through the battery of standardized field sobriety tests, or SFSTs.  The first of these tests was the HGN, a test which the police dash cam cannot display what the officer sees or is looking for.  The second test was the walk and turn, and the third test was the one leg stand.

Throughout the stop, the video shows Ms. Day to have done what any layperson would call a very good job in these SFSTs.  She does not appear to be at all intoxicated.  She is responsive, cooperative, and her demeanor does not exhibit any typical signs of intoxication, such as slurred speech, confusion, or a loss of coordination.  However, keeping in mind that the officer is a specially trained task force officer, he observed what he determined were clues indicating intoxication, even if to the untrained eye Ms. Day would have passed all of the tests.

In fact, the officer didn’t just see a few clues, he saw all of them.  Ms. Day was arrested and subsequently refused to submit to an breathalyzer test, meaning that she might very well lose her drivers license for a full year without any work or limited driving permit.  Despite the very positive video, Ms. Day was given no alternative to a DUI plea and chose to assert her right to a jury trial.

At trial, the officer was just as professional as he was at the scene of the arrest.  He testified to his extensive experience and training.  The officer gave a detailed account of every step of the stop and why and how he came to make the decisions he made.  The difficulty in this case was that where many officers will go out on a limb and try to “advocate” for the State to get a conviction, leaving them open to a forceful cross-examination, this particular officer told the facts for exactly what they were.

The purpose of a jury trial is for the factfinder, the jury, to determine what the facts are, or what happened.  In this case, the jury was able to see for themselves the stop and arrest, as well as all the tests and statements that transpired.  They saw this quite clearly.  And yet my client and I shared a fear that the jury would trade its own sense of reason and perception for that of a well-qualified and well-trained professional officer.

Because the officer did perform the tests in accordance with his training and the standards set forth by the National Highway Transportation and Safety Authority, or NHTSA, I was unable to credibly suggest much more than that the conclusions he drew did not jibe with what we all know and recognize to be signs of intoxication.  In essence, it left me with little to demonstrate that his conclusions were wrong.

Instead of taking this approach, we put forth our own expert who was to question the very validity of the field sobriety evaluations.  Our expert was also very well-trained and had a wealth of experience as a former DUI task force officer himself, but the very capable prosecutor quickly dispatched with our expert’s ability to speak to much of the scientific data which he was attempting to scrutinize before the jury.  Ultimately, the best function he served for us was to provide a buffer between the jury hearing the arresting officer’s testimony and the time at which they were to deliberate.

After our expert was cross-examined, we rested our case.  I then stood up for my closing argument, in which I implored the jury not to leave their own sense of reason at the door of the courthouse when they came in.  I discussed reasonable doubt, explaining that this was a very important decision and that they should be able to leave knowing that they did justice in their unanimous verdict.  I had to address Ms. Day’s decision to decline the breath test, as that refusal could be taken by them as circumstantial evidence pointing to her guilt of being under the influence of alcohol to the extent she was a less safe driver.

The prosecutor stood up to give his closing argument after mine.  He pulled out all the stops.  He revisited every bit of the criteria for which the officer stated his decision to arrest for DUI was made.  He painstakingly covered every single provision of the law for which he asserted Ms. Day was proven to have violated.  After the judge read the law to the jury and charged them, they exited the courtroom and we anxiously awaited their decision.

As is often the case, my client braced herself for the worst case scenario.  It was now after 6:15 p.m. and we were waiting on the jury to come back with a decision.  I had a fear that they might make a rash decision, or that jurors who might be inclined to hold back from convicting due to reasonable doubt would give in so that they did not have to return to court for further deliberation the next day.

Shortly after my nerves began to get the best of me, the jury had a decision.  We all went back into the courtroom and the foreman read the decision…not guilty as to DUI.  We had opted to admit to the speeding charge in opening argument and never once questioned whether or not she was actually speeding that evening.  The verdict was read so suddenly that Ms. Day did not even fully understand at that moment that she was acquitted, and she asked me what the verdict meant.  I whispered to her that we had won, and everyone in the room must have sensed her relief.