GEORGIA DUI DRUGS CASES ARE NOT FOR INEXPERIENCED LAWYERS
Head v. State, ___ S.E.2d ___, 2010 WL 963658, A09A2039 (Ga. App. March 18, 2010).
After a stipulated bench trial based upon the transcript of a hearing held upon his demurrer, Head was convicted of DUI of any drug to the extent that it was less safe for him to drive, in violation of OCGA § 40-6-391(a)(2) and driving with a controlled substance in his blood, in violation of OCGA § 40-6-391(a)(6). His DUI drugs per se conviction merged into his DUI-less safe conviction. In his appeal, Head contended that the evidence was insufficient to support his DUI-less safe conviction, and that OCGA § 40-6-391(a)(6) violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. The Court of Appeals reversed his DUI less safe conviction finding that the evidence was insufficient to support this conviction. However, the Court rejected Head's constitutional challenge to OCGA § 40-6-391(a)(6). Because Head's OCGA § 40-6-391(a)(6) conviction was merged into his DUI-less safe conviction for sentencing purposes, the case was remanded to the trial court for resentencing so that Head on the DUI drug per se charge.
Head's vehicle collided with the side of a charter bus as the bus attempted to make a left hand turn across Head's lane of traffic. The bus driver was issued a traffic citation in connection with this accident and the officer working the accident found the bus driver to be “at fault.” The investigating officer, however, smelled an odor of alcohol on Head as Head was being treated by EMS personnel. The officer noted that Head had a clear line of sight and what appeared to be time to avoid the accident, yet he saw no evidence that Head attempted to stop prior to the collision and had made only a last moment attempt to swerve. The officer also learned that Head had been at a social function immediately prior to the accident.
Based upon this information, the officer believed Head to be intoxicated, and he read Head his implied consent rights and obtained Head's consent to submit to a state administered blood test. Head admitted at that time that he had consumed alcohol earlier in the evening. The officer thus issued Head a citation for driving under the influence of alcohol to the extent it was less safe, pursuant to OCGA § 40-6-391(a)(1).
The resulting lab report was negative for alcohol, but indicated the presence of alprazolam and benzoylecogonine, a cocaine metabolite. Consequently, Head was accused of DUI-less safe, in violation of OCGA § 40-6-391(a)(2), and driving with any amount, including the metabolites and derivatives, of a controlled substance present in his blood, in violation of OCGA § 40-6-391(a)(6).
Head's DUI less safe conviction was reversed based on insufficiency of the evidence. The evidence showed that Head had ingested alprazolam and cocaine. The Court of Appeals stated once again that merely showing ingestion of drugs in insufficient to sustain a DUI less safeconviction, and the state must prove that Head “was a less safe driver as a result of being under the influence of [these drugs].” (Citation and punctuation omitted; emphasis in original.) Ricks v. State, 255 Ga.App. 188, 190 (564 S.E.2d 793) (2002). See also State v. Ellison, 271 Ga.App. 898, 902(3)(b), 611 S.E.2d 129 (2005); Bowen v. State, 235 Ga.App. 900, 901-902 (510 S.E.2d 873) (1999).
The state presented evidence that Head had alprazolam and a cocaine metabolite in his blood, and further presented the officer's opinion testimony that Head should have been able to avoid the collision, although the bus driver-not Head-was cited with the traffic infraction. No evidence was submitted to the trial court which explained the significance of the alprazolam and cocaine metabolite present in Head's blood, i.e., whether the quantity of the drugs was considered sizeable; whether the quantities indicated recent or merely past usage of the drugs; or what effect the level of drugs found in Head's blood would have on the average person, specifically whether those drugs would cause any physical and/or mental impairment. Significantly, Head elicited expert testimony that the presence of benzoylecgonine in one's blood “is not indicative of any impairment because it is the after-effect” of cocaine. There was evidence presented that cocaine metabolites can be detected in a urine sample for up to 48 hours after the ingestion of cocaine.
It follows that, since the record is completely devoid of any evidence tending to show that Head was a less safe driver as a result of being under the influence of alprozalam and cocaine, we must reverse his conviction on this count. See generally Ricks, 255 Ga.App. at 190; Bowen, 235 Ga.App. at 901-902; Webb v. State, 223 Ga.App. 9, 10-11 (476 S.E.2d 781) (1996). Compare Morris v. State,210 Ga.App. 617, 618(1) (436 S.E.2d 785) (1993). Cf. Camarata v. State, 188 Ga.App. 41, 43(2) (371 S.E.2d 885) (1988).
With regard to his conviction for violating of OCGA § 40-6-391(a)(6), Head argued that the trial court erred in denying his demurrer raising a constitution challenged to OCGA § 40-6-391(a)(6). Head argued that O.C.G.A. § 40-6-391(a)(6) violates the equal protection provision in that it arbitrarily distinguishes between those who are legally entitled to use cocaine and those who are not. See, O.C.G.A. § 40-6-391(b). Head presented evidence that eye drops containing cocaine hydrochloride, a solution form of cocaine otherwise used illicitly, may lawfully be used by opthamologists conducting certain types of surgical and diagnostic procedures. In finding that the O.C.G.A. § 40-6-391(a)(6) did not violation the equal protection clause the Court of Appeals relied on Keenum v. State, 248 Ga.App. 474, 475(2) (546 S.E.2d 288) (2001).
Before you entrust your future to a lawyer, make sure that your lawyer is experienced in defending Georgia DUI less safe drugs cases.
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