BEFORE YOU OR YOUR LAWYER SIGNS AN ALS WITHDRAWAL AGREEMENT IN YOUR GEORGIA DUI CASE, YOU MUST UNDERSTAND THE ADMISSIBILITY OF ALS AGREEMENTS IN GEORGIA DUI CASES
The interplay between the ALS agreements in Georgia DUI cases and the criminal portion of a Georgia DUI case is really confusing for most people charged with a DUI. To be fair, most lawyers handling DUI cases do not truly understand the ramifications of the ALS case upon the DUI case.However, it is crucial that the affect of the ALS case upon the criminal DUI case be understood, and nothing better exemplifies the significance of the ALS upon the criminal DUI case than the use of ALS agreements in the DUI case.
GEORGIA DUI CASES AND THE USE OF ALS AGREEMENTS AT TRIAL
To the best of our knowledge, there is 1 reported DUI case in Georgia addressing the use of an ALS agreement at the trial of the criminal case. So, it is helpful to see how the State attempts to the introduce and use the ALS agreement. In Flading, the State introduced evidence of the ALS agreement at trial:
At trial, the State also admitted into evidence a copy of the officer's video that was recorded from the time he first observed Flading's vehicle until after he was arrested, which was played for the jury. The State also introduced, over objection, a document entitled “Final Decision” completed at an administrative license suspension hearing (“ALS hearing”). Officer Ott explained that he was present at the ALS hearing and spoke with Sarah Hoffman, an attorney who represented Flading at that time and agreed that, in exchange for pleading guilty to the DUI charge, Flading would be permitted to keep his license. The Final Decision, which was signed by Officer Ott and Hoffman, was read to the jury in part, including the following:
This withdrawal is based on an agreement between the arresting officer and [Flading]. In exchange for the arresting officer's withdrawal of this sworn report, [Flading] shall enter a plea of guilty to the underlying charge of violating O.C.G.A. § 40–6–391. The parties agree that a copy of this final decision may be admitted into any subsequent legal proceeding involving the charge as an admission by [Flading] of [Flading's] guilt or nolo contendere in exchange for the rescission of the
Flading v. State, 327 Ga. App. 346, 347-48, 759 S.E.2d 67, 69 (2014)
THE ALS AGREEMENT AS AN ADMISSION AGAINST A DUI DEFENSE
We turn, therefore, to our general law regarding a party's admissions and stipulations in criminal proceedings. “Admissions by agents or attorneys are not admissible in criminal cases in the sense in which they are admissible in civil cases. They should not be treated as evidence against the accused unless shown to have been authorized by him.” (Citations and punctuation omitted.) Dryer v. State, 205 Ga.App. 671, 672(1), n. 1, 423 S.E.2d 297 (1992).
Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant's conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel's authority to make the statement. The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake. Such an express stipulation should generally be made in writing or in open court.
(Citations and punctuation omitted.) Id. at 672–673(1), 423 S.E.2d 297 (defendant acquiesced to an oral stipulation of facts made in open court for the purpose of dispensing with proof of the agreed facts, amounting to a conclusively binding admission in judicio).
Flading did not claim fraud or mistake in reaching the stipulation at the ALS hearing. Nor did he ever repudiate counsel's authority to make the stipulation. Although on appeal Flading vaguely asserts that “he did not enter into the purported agreement,” he did not argue such to the trial court. To the contrary, at the hearing on his motion in limine, Flading's trial counsel confirmed that Flading hired Hoffman to represent him at the ALS hearing and that she signed the document. At no point did Flading argue that he did not give Hoffman permission to enter into the stipulation. When presenting its argument in response, the State specifically invited Flading's counsel to correct the record if Hoffman was not actually representing him; Flading did not do so. Accordingly, Flading, having accepted the benefit of the stipulation in the form of the reinstatement of his license and having shown no fraud or mistake, acquiesced to his counsel's stipulation to plead guilty to the DUI and to the admissibility of the Final Decision in a subsequent legal proceeding related to the DUI charge. See Muldrow v. State,322 Ga.App. 190, 195(3), 744 S.E.2d 413 (2013).
2. Flading next argues that the Final Decision is extremely suggestive and prejudicial and should have been excluded. Because the motion in limine hearing took place after January 1, 2013, Georgia's new Evidence Code applies.6 See Ga. L. 2011, pp. 99, 214, § 101. Under our new code, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24–4–401 (mirroring Federal Rule of Evidence 401). This relevance standard “is a low standard.” United States v. Sumner, 522 Fed.Appx. 806, 810 (11th Cir.2013). Flading's stipulation that he would plead guilty to DUI in exchange for the return of his driver's license is relevant to, though certainly not dispositive of, the charge that he was driving under the influence of alcohol.7 See United States v. Harrell, No. 6:05–cr–17, 2006 U.S. Dist. LEXIS 26793, at *3 (M.D.Ga. May 5, 2006) (statements made by defendant at a warrant hearing relevant to issues in later criminal trial).
OCGA § 24–4–403, which tracks Federal Rule of Evidence 403, in turn provides:
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Id. The Eleventh Circuit has described Rule 403 as “ ‘an extraordinary remedy which the [courts] should invoke sparingly, and the balance should be struck in favor of admissibility.' ” Sumner, 522 Fed.Appx. at 810 (citing United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir.2011)). “ The reason for such caution is that relevant evidence in criminal trials is inherently prejudicial.” (Citation and punctuation omitted.) Id. The Eleventh Circuit has further explained that “[t]he major function of Rule 403 is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” (Citation and punctuation omitted.) United States v. Aguila–Urbay, 480 Fed.Appx. 564, 567 (11th Cir.2012). We find that the Final Decision at issue in this case is neither of “scant or cumulative probative force” nor introduced by the State merely for the sake of its prejudicial effect.Accordingly, because its probative value is not substantially outweighed by its prejudicial effect, the trial court properly allowed admission of the Final Decision over objection. See id.
Flading v. State, 327 Ga. App. 346, 350-52, 759 S.E.2d 67, 70-72 (2014).
SO, WHAT IS A DUI DEFENDANT TO DO WHEN CONFRONTED WITH THE POSSIBILITY OF LOSING ONE'S LICENSE FOR 12 MONTHS OR AGREEING TO PLEAD TO GUILTY TO DUI?
We are of the opinion that there are viable means of addressing the ALS agreements at trial. One consideration needs to be whether the lawyer that executed the agreement will testify as a witness for the defendant. It is not clear why that lawyer did not testify in Flading. Certainly, the lawyer can provide a coherent explanation as to why a client (who in most cases has not even had an opportunity to view an arrest video at the time of the ALS hearing) would agree to plead guilty.
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The Sessions Law Firm
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Atlanta, GA 30308