Case Con­clu­sion Date: May 12, 2011

Out­come: DUI charges dis­missed for lack of prob­a­ble cause

Court: Pooler Munic­i­pal Court

Actual Court Judg­ment: Actual Judgment-Chemical Engineer’s DUI Dismissed

Descrip­tion

Jacob is a chem­i­cal engi­neer. He’s got a clean record. He depends on his license to work.  Jacob ran a red light, went left and got on to the ramp for I-95 North­bound. He was imme­di­ately pulled over just off the ramp by Cop 1. Cop 1 wrote in his report that Jason “had slow motor func­tions and an odor of an intox­i­cant was being emit­ted from the vehi­cle.” The cop asked Jacob “How much have you had to drink tonight?” Jacob said “I haven’t been drink­ing.” He asked Jacob to get out of his truck and walk to the rear. He gets out. The cop says he stag­gered walk­ing to the rear of his truck. Cop 1 asks him if he’ll take some Field Sobri­ety Tests. Jacob said Yes. Cop 1 then calls Cop 2 to come out and give the field sobri­ety tests. Cop 2 comes and does. Jacob feels like he passed.

But then, he was hand-cuffed, searched, and shoved into the back of Cop 1’s police car. He was arrested for DUI less safe based on what the cop saw.

Cop 1 asked him to take the breath test, and he agreed as long as a pro­fes­sional gave it. He was taken to the police sta­tion and sat down in front of the Intox­i­lyzer 5000, which is Georgia’s Breath alco­hol test. They asked him if he would take it. He said he wanted to see the officer’s cer­ti­fi­ca­tion to give the test. They did not show him any cer­ti­fi­ca­tion. Next, Jacob wanted a doc­tor to give him a blood test. Then he asked to speak with a lawyer. The cops told him nei­ther request was going to hap­pen.  He didn’t take the breath test and was charged with DUI less safe because he refused to take the breath test.

In Geor­gia, you’ve got a right to requests an inde­pen­dent test. The cop’s fail­ure to let you take one must not be jus­ti­fied. You must request or arrange for your own test after you sub­mit to the state test. You must pay for it, unless you are poor.

The police report says Jason asked for an inde­pen­dent test. So, the bur­den shifts to the State to show that he was not denied an inde­pen­dent test. I’m con­fi­dent that we would have won on this if it had got­ten there.

I get ready for the Pre­lim­i­nary hear­ing. I pre­pared cross-examination ques­tions for all the cops involved. There are sev­eral defenses here. The Field Sobri­ety was done all wrong. The inde­pen­dent test was vio­lated. There’s more than that even, but the thing went down a dif­fer­ent road.

At the pre­lim­i­nary hear­ing, I see two of the offi­cers and talk to them about the case. I asked them where Cop 1 was and they said they didn’t think he would be com­ing back because of the way he left. He’s no longer with the police depart­ment. So, they’ve got the field sobri­ety offi­cer and they’ve got the breath test offi­cer. But, they have no stop­ping offi­cer. Cop 2 tes­ti­fies that Jacob was drunk and failed the field sobri­ety tests. Cop 3 tes­ti­fies that he pre­pared the breath test and Jacob refused to take it. The judge looked over to me and said: “Any ques­tions, Mr. Cerbone?”

I had pre­pared cross-examination ques­tions for both of them. It would have been stim­u­lat­ing to do it. Rather, I looked up at the judge and said “I request you dis­miss the DUI because there is no tes­ti­mony show­ing prob­a­ble cause to stop my client. There­fore, it was an ille­gal arrest. Dismissed.