GEORGIA DUI FIELD SOBRIETY TESTS: WHAT NOT TO TRY TO EXCLUDE AT A MOTIONS HEARING
Sometimes, DUI lawyers are confronted with an officer that doesn't know what he is doing and a trial court judge that wants to do what they can to help a defense attorney get rid of a case even if the law doesn't directly support the decision. The problem, however, is that sometimes the prosecutor won't let the charade go on. That is, the prosecutor will not turn a blind eye to a judge's decision that is contrary to the law even though the officer clearly does not know what he is doing. What happens in cases like this? The answer is: further bad case law for DUI defendants and trial court judges that no longer trust the lawyers for criminal defendants.
The problem that is created in these types of cases is that the trial court judge, who is clearly doing everything possible to give the benefit of the doubt, may be very reticent to stick their neck out for a defendant in the future. The case below illustrates just such a case. Georgia case law has long held that any error in the administration of the walk-and-turn and one-leg-stand tests goes to the weight, not the admissibility, of these tests. There is never any reason to seek the exclusion of these tests. I have no idea why a lawyer would seek exclusion of these tests, given Georgia's well-established DUI case law. Why not simply ask the trial court to limit the opinions that can be drawn from such tests? And if the officer truly botched the administration of the DUI field sobriety tests and the evidence was truly unreliable, why not simply ask the trial court judge to evaluate the credibility of the witness and the evidence and suppress the evidence based on a lack of probable cause to arrest the defendant for DUI?
What follows below is a great example of why DUI lawyers in Georgia have to know the law and know “when to fold 'em”:
James Smith was charged with driving under the influence of alcohol to the extent that it was less safe for him to drive and failure to maintain his lane. Following a hearing, the trial court suppressed the results of two field sobriety tests because they were not properly administered. The State appeals, and we reverse for the reasons that follow.
State v. Smith, No. A14A1127, 2014 WL 5900665, at *1 (Ga. Ct. App. Nov. 14, 2014).
So viewed, the record shows that on January 31, 2013, Kennesaw Police Department Detective Michael Maynard initiated a traffic stop after he observed Smith's vehicle weave, cross the center line multiple times, strike the right curb, and travel partly off of the roadway. Detective Maynard called for backup and then approached the vehicle and spoke to Smith, at which point he detected the odor of alcohol emanating from Smith's breath. Detective Maynard then returned to his vehicle to await Officer J.C. Ferguson, who arrived on the scene shortly thereafter, at approximately 12:45 a.m.
While speaking with Smith, Officer Ferguson detected the odor of alcohol coming from Smith and noticed that his eyes were bloodshot and watery, he mumbled, and his speech was slurred. When asked whether he had been drinking, Smith replied that he was coming from a business meeting and had consumed two glasses of wine and two beers, the last one at 11:00 p.m. Smith then complied with the officer's request to exit his vehicle and approach the police car, walking unsteadily as he did so.
Smith refused Officer Ferguson's request to submit to an alcosensor evaluation, but agreed to submit to field sobriety tests; the tests were videotaped and the tape was played at the suppression hearing. Officer Ferguson testified at the hearing that Smith exhibited six out of six indicators of impairment and the existence of VGN during his HGN and VGN testing. Believing that Smith may have been impaired, Officer Ferguson also administered the “walk and turn” and “one leg stand” field sobriety tests.Officer Ferguson testified that he observed five out of eight indicators of impairment during the walk and turn test and four out of four indicators during the one leg stand test.
According to Officer Ferguson, although it was drizzling and very windy that night, which conditions he conceded could affect the dexterity and balance tests, he did not believe the conditions were dangerous, and he considered the “totality of the circumstances” when evaluating Smith's performance.
At the conclusion of the hearing, the trial court suppressed the results of the HGN, VGN, walk and turn, and one leg stand tests. In a written order, the court stated that it suppressed the test results because Officer Ferguson failed to comply with National Highway Transportation Security Administration (“NHTSA”) standards while administering the tests. The court further concluded that because of the attendant weather conditions, specifically including the wet road surface, the walk and turn and one leg stand tests were “conducted in an unsafe manner,” and “the discrepancies between Officer Ferguson's police report and the driver impairment form g[a]ve th[e trial] court doubt as to the propriety of [the] administration of [those tests].”
State v. Smith, No. A14A1127, 2014 WL 5900665, at *1-2 (Ga. Ct. App. Nov. 14, 2014).
GEORGIA DUI FIELD SOBRIETY TESTS: WHAT YOU WILL NOT GET EXCLUDED
In a single enumeration, the State argues that the trial court erred by suppressing the results of Smith's walk and turn and one leg stand tests. We agree.
It is well-settled that although HGN and VGN tests constitute scientific procedures,
field sobriety tests such as the walk and turn and the one leg stand, both of which demonstrate a suspect's dexterity and ability to follow directions, do not constitute scientific procedures. And, testimony from an officer about a suspect's inability to complete such dexterity tests does not amount to testimony regarding scientific procedures, but instead amounts to testimony as to behavioral observations on the officer's part. Therefore, these two tests and any testimony concerning their administration are not subject to the standard … for determining whether a scientific procedure is admissible.
Thus, a defendant's arguments regarding proper administration of walk and turn and one leg dexterity tests, including compliance with NHTSA standards, go to the weight of the evidence, not to admissibility. Therefore, the trial court erred by suppressing the results of Smith's walk and turn and one leg stand tests based solely on its conclusion that they were not properly administered.
State v. Smith, No. A14A1127, 2014 WL 5900665, at *2 (Ga. Ct. App. Nov. 14, 2014)
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