- Monday, 21 March 2011 16:57
This month’s case shows how you can win a DUI
case without going all the way to a jury. My client, a Nebraska resident, was in Atlanta for a meeting. He got turned around and was driving the wrong way on Spring Street. He was stopped by an Atlanta police officer and subsequently charged with DUI. Even though he agreed to take the Field tests (a no no!), he refused to take the State Breath test.
We decided to fight the case with a jury in the State Court of Fulton County. I had noticed the accusation, which is the charging document, alleged that my client was “driving under the influence of alcohol on Peachtree Street
.” It was also apparent that the State prosecutor had no idea that the accusation was drafted incorrectly.
In a criminal case the State must prove each and every element of the charging document. Once a jury is empaneled , double jeopardy attaches and the Defendant cannot be tried again. So in this case, I waited until the jury was empaneled, let the State’s officer testify and even cross examined him about the facts of the case; my last 2 questions were: Was client X driving on Peachtree Street? Was he ever driving on Peachtree Street to your knowledge?
Of course the answer was “no”. I sat down, let the State rest, and then asked the court to dismiss the charges in what is legally called a directed verdict
. The Court agreed, dismissed the charges, and client was happy!
Was my client lucky? Maybe, although I thought we had a good chance to win even with a jury verdict. Did it help that he decided to spend the money on an experienced DUI lawyer? Absolutely!