Last week I spent a month in Gilmer County. Actually it only felt like a month. Normally, I limit my DUI practice to the North Metro Atlanta area with occasional trips to Athens; however, this DUI case win
was referred to me by a lawyer friend who’d moved his practice from its Gwinnett County law firm
My client in this case is a 67 year old retired doctor who moved to the mountains from Mississippi. On February 25, 2010, he was stopped by Ellijay Police for drifting over the center line, supposedly almost striking the officer. The stop was on video, but the driving was not. The officer smelled alcohol on my client’s breath, and also my client had a half full beer bottle in his car, which had spilled onto his floorboard. After submitting to two field sobriety balance tests, and 2 portable breath tests
, my client was arrested for DUI
. He refused to take the State breath test.
Upon reviewing the video
, I did not see any physical manifestations of alcohol impairment: slurred speech, unsteady walk, etc. Even though my client did ok on the field tests, I knew that police training manuals recommend a person over 65 years old be given something other than the balance field sobriety tests
. So other than the one bad driving event, the smell of alcohol, admission of drinking, and the open container of beer there was really no evidence of alcohol impairment.
My client had been helping decorate for a charity fundraiser before he was stopped, and several of the other charity event volunteers agreed to testify that my client did not appear impaired when he left that day.
I tried to convince the prosecutor to reduce or dismiss the DUI
, but was unsuccessful. Instead, we were scheduled on the trial calendar and worked as quickly as possible to prepare as my client’s driver’s license was administratively suspended
due to his refusal to take the State breath test.
On Thursday, at 9am, we were scheduled to begin the trial; however the judge apparently remembered that one of the jurors had previously been indicted for child abuse. During jury selection the DA asked, “Does anyone currently have any matters pending with the District Attorney’s office?” No one raised their hands. It took about an hour for the DA’s office to confirm that this juror and his wife had indeed been indicted, but the charges were “dead docketed”, meaning that the charges were “on hold”, and had theoretically come back up. So the concern was that the juror might have some bias either for or against the DA’s office, depending on whether he thought the case was over or not. However, the judge decided to keep the juror on the panel. The trial began, and at 5:30 on Thursday the jury got the case. At 6:30 pm, they still did not have a verdict. The judge told the jury they could go home and return on Friday morning.
However, there was another issue: the same juror had been selected as the jury foreperson, meaning he could have potentially influenced how the case was decided. I was concerned because I thought the jury would come back with a not guilty verdict
in less than an hour, and when they did not- I started sweating! The judge THEN decided to excuse the juror from the panel to be replaced the following day with an alternate juror.
On Friday morning, I made my last one hour twenty minute drive to Ellijay. The jury was out in thirty minutes with that sweet, two word verdict: NOT GUILTY!!