DUI Drugs Lawyer
Georgia DUI less safe charges are one of the most confusing charges to defendants and, unfortunately, many lawyers. The confusion surrounding Georgia DUI less safe charges arises primarily from the belief that in a DUI case there must be a chemical of blood, breath, or urine to establish that the suspect is under the influence alcohol, drugs, or a combination of alcohol and drugs.
DUI – Drugs Charges in Georgia Are Usually Prosecuted As DUI Less SAFE CHARGES
Most DUI drugs must cases must be prosecuted as a DUI less safe charge. For many DUI drugs cases, even if you are not taking a drug under a prescription, the state must still establish that you were impaired as a result of the drugs. In other words, although you were not in lawful possession of the drugs, the state cannot simply rely upon the presence of the drugs within you to establish a DUI charge:
To sustain a conviction of DUI-less safe, it is not sufficient to show merely that Head was driving after having ingested, at some point in time, alprazolam and cocaine. Rather, 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) (“Mere presence of [drugs] is not the issue…. [T]he [s]tate must prove that the defendant had impaired driving ability as a result of [the drugs].”) (Punctuation and footnote omitted); Bowen v. State, 235 Ga.App. 900, 901–902, 510 S.E.2d 873 (1999). Cf. State v. Rish, 295 Ga.App. 815, 816, 673 S.E.2d 259 (2009) ( “If the evidence shows only that a driver is intoxicated and does not show that his consumption of alcohol [or drugs] has impaired his ability to drive, there is no probable cause to arrest for DUI-less safe.”).
Georgia DUI less safe charges are among the difficult concepts for defendants to grasp. If you have questions regarding your Georgia DUI case, please contact our office.
Many lawyers handling DUI drugs cases really don’t have experience with the evidence that must be prepared to challenge in these cases. Many aspects of the DUI drugs case, particularly the quasi-“scientific” field sobriety tests, are different than the field sobriety tests you may see in an alcohol-related DUI case.
- There is no per se blood or urine test limit for a DUI based upon prescribed medications or marijuana. Many prosecutors and state toxicologists will attempt to argue that the suggested therapeutic ranges create per se DUI limit for prescription drugs. Anticipate this argument and testimony at trial.
- There is no validation study for the use of the horizontal gaze nystagmus (HGN) test in DUI drugs cases. There is no case in Georgia approving of the use of HGN evidence under the Harper standard in Georgia.
- A Harper challenge should made as to the admissibility of lack of convergence, romberg, and pupil size evidence in DUI drugs cases.
- DUI drugs cases are generally much more defensible (winnable) than DUI alcohol cases. There are numerous reasons why that is the truth, but it is just important that you recognize that there are some very good reasons to challenge these cases. In this post, I am going to discuss some of the reasons why I really like defending these cases.
- There are commonly mistakes in the charging instruments in DUI drugs cases. In Georgia, there are distinct differences in the DUI drugs less safe statute and the DUI drugs per se statute. Look for the inclusion of “metabolites and derivatives” in a DUI less charge. This presents a great basis for a demurrer to the language of the accusation/indictment.
Below are the 7 drug categories of the drug evaluation and classification (DEC) program employed by drug recognition experts in DUI cases. DREs classify drugs in one of seven categories: Central Nervous System (CNS) Depressants, CNS Stimulants, Hallucinogens, Phencyclidine (PCP) and its analogs, Narcotic Analgesics, Inhalants, and Cannabis. Drugs from each of these categories can affect a person’s central nervous system and impair a person’s normal faculties, including a person’s ability to safely operate a motor vehicle.
Get rid of Drug Recognition Expert Evidence in Your DUI/Drugs Less Safe Case
If you are not filing motions to exclude DRE evidence in DUI drugs less safe cases, you are missing an incredible opportunity. You are missing an opportunity to knock out the evidence that the State really needs in order to attempt to show that your client is impaired as a result of drugs. Many people are unfamiliar with Harper motions. They can be intimidating because it requires lawyers to understand a little bit about the scientific process. That should not be the case.
DRE EVIDENCE IN DUI DRUGS LESS SAFE CASES CAN BE EASILY CHALLENGED
Harper motions motions to challenge the use and admissibility of opinions based upon DRE evidence are simple to make. Once you raise the issue, the State is required to show the Court that the evidence has been accepted by other courts routinely (DRE evidence has not been) or that it is has reached a stage of scientific verifiability (it has not).
So, when you are confronted with a DUI “expert” who has been through hundreds of hours of training and claims to be a drug recognition expert, look to the law. Do not be fearful of the science because they do not have any to establish the reliability of this evidence.
Categories of Drugs that DREs Try to Identify in Georgia DUI Drugs Less Safe Cases
1. CNS Depressants and GA DUI Drugs Charges
CNS depressants “slow” down a person’s brain and central nervous system. Alcohol is the most prominent CNS depressant. Other popular CNS depressants include anti-anxiety tranquilizers, anti-depressants, anti-psychotic tranquilizers and various derivatives of barbituric acid. It seems anomalous to classify “anti-depressants” as depressants; however, medical doctors, toxicologists and DREs generally classify drugs according to their effect on the brain and body, not their effect on mood. Specific drugs include Xanax,Valium, Rohypnol, Halcion, Soma, and GHB.
2. CNS Stimulants and GA DUI Drugs Charges
CNS stimulants “speed up” a person’s mind and central nervous system. Cocaine and methamphetamine are the two most commonly abused stimulants. Ritalin, Cylert, ephedrine, and caffeine are other well-known stimulants.
3. Hallucinogens and GA DUI Drugs Charges
Hallucinogens impair a user’s ability to perceive reality by distorting perceptions of sight, sound, touch, and odors. They may even cause “synesthesia,” a phenomenon where a person “mixes” the senses. For example, a person may “see” sounds or “hear” colors. This category includes natural substances like peyote, psilocybin, and morning glory seeds, as well as synthetic substances like lysergic acid (LSD) and Ecstasy (MDMA).
4. Pcp (and Its Analogs) and GA DUI Drugs Charges
PCP and its analogs, including Ketamine, are “dissociative anesthetics.”They are extremely dangerous. People under the influence of PCP may be very violent.
5. Narcotic Analgesics and GA DUI Charges
Narcotic analgesics include opiate class drugs and similar synthetic drugs. Most prescription painkillers are narcotic analgesics. This category includes heroin, morphine, codeine, methadone, Oxycontin, Vicodin, Percodan, Fentanyl, Dilaudid, and Demerol. Narcotic analgesics are the only drugs that routinely constrict a person’s pupils. Narcotic analgesics are highly addictive.
6. Inhalants and GA DUI Charges
Named for their primary method of ingestion, inhalants are breathable chemicals, including volatile solvents, propellant gases or aerosols, and some anesthetic gases. This group includes glue, gasoline, paint thinner, hair spray, insecticides, nitrous oxide (“laughing gas”), amyl nitrite, and ether. Some solvents, like aerosols and anesthetic gases, are extremely fast-acting, short-duration substances, while others, including volatile solvents, may produce effects for several hours.
7. Cannabis and GA DUI Charges
Cannabis is the scientific name for marijuana. The active ingredient in cannabis is delta-9 tetrahydrocannabinol or THC. This category includes cannabinoids and synthetics like dronabinol.\
Georgia DUI Marijuana Charges
Blood test results in Georgia DUI marijuana cases typically are reported as: __ ng/mL of 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid. 11-nor-9-Carboxy-THC, also known as 11-nor-9-carboxy-delta-9-tetrahydrocannabinol, 11-COOH-THC, THC-COOH, and THC-11-oic acid, is the main secondary metabolite of THC which is formed in the body after Cannabis is consumed.
THC binds to cannabinoid receptors and interferes with important endogenous cannabinoid neurotransmitter systems. Receptor distribution correlates with brain areas involved in physiological, psychomotor and cognitive effects. Correspondingly, THC produces alterations in motor behavior, perception, cognition, memory, learning, endocrine function, food intake, and regulation of body temperature.
THC is primarily metabolized to 11-hydroxy-THC which has equipotent psychoactivity. The 11-hydroxy-THC is then rapidly metabolized to the 11-nor-9-carboxy-THC (THC-COOH) which is not psychoactive.
The National Highway Traffic Safety Administration (NHTSA) has recognized that the metabolite of THC in marijuana that is measured in Georgia DUI blood tests is not psychoactive, and if the metabolite is not psychoactive, it does not impair driving ability.
According to NHTSA:
It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. THC concentrations typically peak during the act of smoking, while peak 11-OH THC concentrations occur approximately 9-23 minutes after the start of smoking. Concentrations of both analytes decline rapidly and are often < 5 ng/mL at 3 hours. Significant THC concentrations (7 to 18 ng/mL) are noted following even a single puff or hit of a marijuana cigarette. Peak plasma THC concentrations ranged from 46-188 ng/mL in 6 subjects after they smoked 8.8 mg THC over 10 minutes. Chronic users can have mean plasma levels of THC-COOH of 45 ng/mL, 12 hours after use; corresponding THC levels are, however, less than 1 ng/mL. Following oral administration, THC concentrations peak at 1-3 hours and are lower than after smoking. Dronabinol and THC-COOH are present in equal concentrations in plasma and concentrations peak at approximately 2-4 hours after dosing.
Suggested articles regarding DUI marijuana include:
Cannabis findings in drivers suspected of driving under the influence of drugs in Finland from 2006 to 2008. Tom Blencowe, Anna Pehrsson, Sirpa Mykkänen,Teemu Gunnar, Pirjo Lillsunde.Alcohol and Drug Analytics Unit, National Institute for Health and Welfare, P.O. Box 30, FI-00271 Helsinki, Finland. Received 18 May 2011; received in revised form 3 October 2011; accepted 4 October 2011. published online 24 October 2011.
The authors examined driving under the influence of drugs (DUID) cases which were found to be positive in whole blood for cannabis in Finland from 2006 to 2008. Factors studied were the number of cases positive for any combination of Δ9-tetrahydrocannabinol (THC) and the metabolites 11-hydroxy-Δ9-tetrahydrocannabinol (THC-OH) and 11-nor-9-carboxy-Δ9-tetrahydrocannabinol (THC-COOH). Concurrent use of amphetamines, benzodiazepines and/or alcohol was also recorded, as well as the drivers’ age and gender. Altogether 2957 cannabis positive cases were retrieved from the database of the Alcohol and Drug Analytics Unit, National Institute for Health and Welfare. Drug findings were examined in relation to the zero-tolerance policy operated towards DUID in Finland. The number of cannabis positive cases in each year was approximately 1000 and the main demographic of cases was males aged 20–30years. In the majority of cases (51.6%) the inactive metabolite THC-COOH was the only indication of cannabis use, however, associated use of amphetamines (58.8% of all cases) and/or benzodiazepines (63.9%) in cannabis positive drivers was very common. Detections for amphetamines and/or benzodiazepines were especially common in drivers with THC-COOH only (92.8% of these cases). Combined use of alcohol (25.7%) was also prevalent. Suspect DUID cases generally arise from suspicion on behalf of the police and the zero-tolerance policy offers an expedient means to deal with the challenges presented in DUID, particularly in view of the high incidence of multiple drug use – the legislation is not unduly punitive when enforced in this manner.
Georgia DUI Drugs: Cocaine
As we have discussed before, driving under the influence of drugs can be the basis for a DUI charge. Cocaine, unlike some other drugs, can be the basis for a DUI – Per Se charge. That means that the State can allege a violation of Georgia DUI law through simply have cocaine in your blood, urine, or other bodily substance. Often times, I still see DUI drugs cases being prosecuted with DUI – Per Se charges when they could be. DUI Defense Lawyers need to be aware of this oversight, and take advantage of it. If you have a DUI – Less Safe charge only and the blood or urine test shows the presence of cocaine or any other drug, you have been presented with an opportunity. The State must show impaired driving ability as a result of the charge they have elected to proceed upon.
The presence of the cocaine metabolite, Benzoylecgonine, in and of itself is insufficient to establish impaired driving ability for the purposes of a DUI Drugs charge in Georgia. Benzoylecgonine, a cocaine metabolite, does not indicate impairment – driving or otherwise. Benzoylecgonine metabolites can also be produced as a result of the use of some herbal teas. If you have been charged with DUI drugs in Georgia, contact a qualified Georgia DUI defense lawyer to discuss your case.
Using the Winek Chart for Determining Therapeutic Drug Levels in DUI Drugs Cases
It is not uncommon for people to be charged with driving under the influence of prescription drugs in Georgia. DUI charges based upon the alleged consumption of prescription drugs have been steadily increasing. However, there remains a great deal of confusion about how blood test results should be interpreted. Most criminal defense attorneys have no idea how to decipher blood test results showing the presence of prescribed medications. This post is intended to provide you with some guidance in using the Winek Chart for determining therapeutic drug levels in DUI drug cases. The Georgia Bureau of Investigations Division of Forensic Sciences reports drug levels in mg/L (milligrams per liter), but Winek’s chart is reported in micrograms per milliliter. You do not need to know much about the measurements, but you do need to know that there is a difference in the unit of measurement. Do not be caught off guard with this difference.
How Do You Convert Milligrams per Liter to Micrograms per Milliliter, so That We Can Determine Whether a Client’s Blood Levels Are Within Therapeutic Ranges?
- 1. First, obtain your client’s blood test levels from the GBI.
- 2. Review Winek’s chart to determine the applicable therapeutic/”normal” blood levels for your client.
How Do You Fight a DUI Drugs Case in Georgia?
This is an example of the types of issues/problems that we challenge in DUI drugs cases:
If you are handling DUI Drugs cases in Georgia, you must anticipate law enforcement use of DRE evaluations. You have to expect in the DUI drugs case in order to make the approximate motions to exclude evidence that has not been shown to scientifically reliable in Georgia. If you are defending Georgia DUI drugs cases, be sure to get a cheat sheet like this:
Below are two examples of motions to exclude DRE evaluations that I typically file in Georgia DUI drugs cases. The first example is much more extensive than the second. Below the second motion is a link to a Maryland order excluding DRE evaluation under the Daubert standard. Remember that in Georgia, our Harper standard should be greater than the Daubert/Frye standard our courts apply in civil cases.
DRE Evaluations and Motions to Exclude
Brief in Support of Motion to Exclude Romberg Evidence
The evidence and testimony addressed in this motion is generically referred to as the “Romberg test” by law enforcement. It is more accurately called the “Modified Romberg Balance Test.” The “Romberg test” at issue, in this case, consists of the following:
- The subject is instructed to stand straight with their feet together and their arms down at their sides;
- The subject is instructed to remain in that position until instructions are completed;
- The subject is instructed that when told to begin, the subject should tilt their head back slightly and close their eyes.
- With their head titled back and eyes closed, the subject is instructed to estimate the passage of 30 seconds.
- The subject is instructed to bring their head forward, open their eyes, and say “Stop” when they believe that 30 seconds has elapsed.
- When the subject opens their eyes, ask them how much time they thought elapsed.
The determination of whether a scientific principle or technique is admissible in a criminal case in Georgia is governed by the rule stated in Harper v. State, 249 Ga. 519, 525-26, 292 S.E.2d 389 (1982). The Harper rule requires that the Court in a criminal case determine “whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law….” Id. at 525. Otherwise stated, the Court must determine whether the scientific principle or technique “has reached a scientific stage of verifiable certainty” or “‘rests upon the laws of nature.’” Id. (citations omitted). “[E]vidence based on a scientific principle or technique is admissible only if the science underlying the evidence is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law.” Parker v. State, 307 Ga.App. 61, 704 S.E.2d 438 (2010).
In Harper, the Georgia Supreme Court described the types of evidence that our trial courts should look to in determining whether a scientific principle or technique has reached a scientific stage of verifiable certainty. The Harper court explicitly expressed its disapproval of the “counting heads” rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Id. According to the Harper Court:
The trial court may make this determination from the evidence presented to it at trial by the parties; in this regard, expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises, or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.
Id. at 525-26. “[O]nce a procedure has been utilized for a significant period of time, and expert testimony has been received thereon in case after case, the trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace.” Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, 807 (1996).
Certain evaluations commonly employed in DUI investigations, such as the “ABCs,” the “Walk-and-Turn Test,” and the “One-Leg Stand Test,” have been recognized as “physical dexterity exercises that common sense, common experience, and the ‘laws of natures” share are performed less well after drinking alcohol.” Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, 807 (1996). Accordingly, “[t]he screening of these gross motor skills is hardly the type of ‘scientific principle or technique’ to which Harper referred, and this Court will not hold these physical manifestations of impairment, which could be as obvious to the layperson as to the expert, to such a standard of admissibility.” Id.
In contrast to those tests which, in large part, test gross motor skills, certain tests typically employed in DUI investigations required a determination that the Harper standard has been satisfied. In Hawkins, the Court of Appeals clarified that the horizontal gaze nystagmus test is a scientific test that required a Harper foundation, and the Court further held “that the “HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” Id. at 808. Thus, the Hawkins Court held that the trial court was no longer required to hear expert testimony in order to introduce evidence of HGN. Id. In reaching its conclusion that the production of evidence to satisfy the Harper standard for admissibility was no longer required, the Court observed the following:
- the effect of alcohol on the eyes and inducing horizontal gaze nystagmus is recognized in The Merck Manual of Diagnosis and Therapy;
- the horizontal gaze nystagmus test has undergone validation studies sanctioned by the National Highway Traffic Safety Administration (Burns & Moskowitz, “Psychophysical Tests for DWI Arrest,” S. Department of Transportation, Rep. No. DOT-HS-802-424 (1977); Schweitz & Snyder, “Field Evaluation of a Behavioral Test Battery for DWI,” U.S. Department of Transportation, Rep. No. DOT-HS-806-475 (1983);
- the horizontal gaze nystagmus test has been employed by law enforcement in all 50 states;
- the relationship of horizontal gaze nystagmus to alcohol consumption was recognized in the premier DUI defense treatise (Erwin, Defense of Drunk Driving Cases (3rd ed. 1985), 8.15A);and
- “The characteristics, theory, and scientific acceptability of HGN testing in relation to DUI cases has been discussed in numerous articles and in numerous judicial opinions. See particularly, State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, appendices A & B 182-184, 149 Ariz. 269, 718 P.2d 171 (1986); State v. Nagel, 30 Ohio App.3d 80, 506 N.E.2d 285 (1986); see also, e.g., Barnes, The Effects of Ethyl Alcohol on Visual Pursuit and Suppression of the Vestibulo-Ocu- lar Reflex, 406 ACTA Otolaryngol Supp., p. 161 (Sweden 1984) (ethyl alcohol disrupted visual pursuit eye movement by increasing number of nystagmic “catch-up saccades”); Goldberg, Effects and After-Effects of Alcohol, Tranquilizers and Fatigue on Ocular Phenom- ena, Alcohol and Road Traffic, p. 123 (1963) (of different types of nystagmus, alcohol gaze nystagmus is the most easily observed); Zyo, Medico-Legal and Psychiatric Studies on the Alcoholic Intoxicated Offender, 30 Japanese J. of Legal Medicine, No. 3 (1976), p. 169 (recommends use of nystagmus test to determine somatic and mental symptoms of alcohol in- toxication, as well as blood alcohol content).”
Hawkins, 476 S.E.2d at 807-808.
When a given type of scientific evidence or technique has been recognized as meeting the Harper foundation, the scope of the opinions which may be rendered based upon the scientific evidence or technique must still be scrutinized to determine compliance with Harper. Hawkins authorized the use of the HGN test as a basis for an opinion regarding “impairment” by alcohol. However, Hawkins does not authorize the use of the HGN test as a basis for an opinion as to a specific numerical blood-alcohol concentration. Bravo v. State, 304 Ga. App. 243, 696 S.E.2d 79 (2010)(expert testimony regarding use of the HGN to determine a specific blood-alcohol concentration was insufficient to meet the Harper standard for admissibility).
There is no authority for judicial notice that the “Romberg Test” satisfies the Harperstandard. No Georgia court has addressed whether the “Modified Romberg Balance Test” has satisfied the Harper standard of reaching a scientific stage of verifiable certainty. There are Georgia cases in which a “Romberg test” was admitted as evidence and considered by trial courts, but there is no case in which an objection to the admissibility of “Romberg” evidence was preserved for consideration on appeal. The Romberg test is not which has repeatedly presented to the Court of this state and supported by expert testimony accepted.
Respectfully Submitted, this ___ day of ____________, ———-.
Motion in Limine to Exclude Evidence of “Romberg” Evaluation, Eyelid Tremors, Body Tremors, Reddening of The Conjunctiva, and Raised Tastebuds From the Trial of This Case
Comes Now, the Defendant, by and through the undersigned counsel of record, and moves this Honorable Court to exclude from trial all evidence regarding the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds as being indicative of the Defendant driving under the influence of drugs to the extent that he was a less safe driver. In furtherance of this motion, the Defendant shows this Court the following:
On _________________, ——– of the —————- requested that the Defendant perform a field sobriety test. The test is referred to as the “Romberg” evaluation. Trooper —- stated that he observed that the Defendant improperly estimated 23 seconds to be 30 seconds, and the Defendant allegedly exhibited eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds.
The Defendant challenges the admissibility of the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds as being indicative of the Defendant driving under the influence of drugs to the extent that he was a less safe driver. These evaluations and observations constitute scientific evidence and as such should not be received into evidence without the proper foundation. See Harper v. State, 249 Ga. 519 (1982).
Scientific evidence is evidence-based upon principals of science and “shrouded in the mystery of professional skill or knowledge.” See, Metropolitan Life Insurance Company v. Saul, 189 Ga. 1, 9 (1939). Such evidence is “beyond the ken of the average [person].” See, Williams v. State, 254 Ga. 508, 510 (1985). The evaluations and observations described above constitute scientific evidence. The average person would not understand that alleged problems estimating the passage of time, eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds or other such alleged symptoms would be indicative of someone under the influence of drugs. These are not commonsense evaluations and observations.
—————’s alleged evaluations and observations are similar to the Horizontal Gaze Nystagmus test that police officers often administer in DUI cases. “The HGN is a test manifesting in an involuntary rapid and then slow jerk of the eye.” Manley v. State, 206 Ga. App. 281 (1992). That evaluation is a “scientific procedure.” State v. Pastorini, 222 Ga. App. 316, 319 (1996). On the other hand, field sobriety evaluations that “demonstrate a suspect’s dexterity and ability to follow directions do not constitute scientific evidence.” Id. at 318. For evaluations such as the One Leg Stand test, which was not used in Defendant’s case, an average person can have an understanding that such evaluations would generally be performed less skillfully by a person who was under the influence of an intoxicant. This, however, is not true for evaluations and observations such as HGN, the Rhomberg Evaluation, tremors, and eye symptoms about which the officer reported in Defendant’s case. There is not a commonsense conclusion accessible to the average person that these observations are indicative of someone who is under the influence of an intoxicant. These are not “behavioral observations.” Rather, the evaluations and observations in question are medical observations that require knowledge of the health sciences, medicine, or perhaps toxicology to fully comprehend. See Id. at 319. It is simply not commonsense that a person who is under the influence of an intoxicant, be it marijuana or anything else, would have trouble estimating the passage of thirty seconds, would have tremors, raised taste buds, or other eye symptoms.
Because the evaluation and observations constitute scientific evidence, the State must establish the foundation required by Harper v. State, 249 Ga. 519 (1982), before the Court can admit the evidence. Harper requires that the court make the determination that the evidence “has reached a scientific stage of verifiable certainty… [and that the] procedure rests upon the laws of nature.” Id. at 525. The court makes such a determination from “the evidence available to [it];” this may include expert testimony, exhibits, treatises, or the rationale of cases from other jurisdictions. Id. at 25-26. Once the evidence is “recognized in a substantial number of courts” the court may take judicial notice that the scientific evidence has reached a stage of verifiable certainty, the way that a court may admit the results of the HGN evaluation. See Harper, 249 Ga. at 525.
The Appellate Courts of this State have not considered the evaluation and observations at-issue in this case in the way that the courts have considered the HGN evaluation. Unless the State establishes the foundation required by Harper, the evaluations, the observations, and any conclusions drawn from them should not be admitted against the defendant.
Defendant instead contests the science and the validity of using these evaluations and observations to form the basis of an opinion that the Defendant was under the influence of intoxicants at the time of his arrest. Because the officer’s investigative technique constituted the gathering of scientific evidence that has not been recognized by a substantial number of courts and has not been utilized for a significant period of time with expert testimony being offered in case after case, the trial court is not authorized to admit the evidence without the proper foundation. See, Izer v. State, 236 Ga. App. 282 (1999).
The Defendant respectfully requests that this Honorable Court enter an order that the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjuctiva, and raised tastebuds, in the context of being indicia of a person who is under the influence of drugs to the extent that the person is less safe to drive, are scientific evidence. As such, the Court should require the State to meet the foundation required under Harper before the Court can receive the evidence in question.
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).
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