ARE JUDGES DOING CONTORTION TRICKS TO AVOID GRANTING YOUR OLEVIK DUI MOTIONS?
Defending DUI cases frequently involves challenging the admissibility of the State’s evidence. The idea is that if we can take away the State’s strongest piece or pieces of evidence, we can obtain a good result in the case. It is almost always the case that if there is a blood, breath, or urine test in a DUI case, that evidence is the piece of evidence that the prosecutor is going to rely upon most heavily. So, a lot of effort and time needs to be committed to making sure that we do everything possible to challenge the ability of the state to use and introduce in evidence the results of those tests.
Does it seem like Judges are doing contortionist maneuvers to avoid granting your Olevik DUI motions? A handful of lawyers throughout Georgia are routinely arguing Olevik motions in both refusal and breath test DUI cases. (Yes, everybody can and should be arguing them!). And what we are seeing should not be a surprise. Some Judges have taken the easy path: Our appellate courts have recognized that a DUI defendant has a constitutional right to refuse a DUI breath test, and we do not allow the State to attempt to punish a person for exercising constitutional rights. This is not a bold position. It is not controversial. If a Judge is unconcerned with helping the State gain a conviction, it is not a hard call to make.
So, what do you do if your Judge is the type that is unwilling to exclude evidence of a DUI defendant exercising a constitutional right?
- Most trial Judges really like to rely upon clear and well-established principles of law when they are excluding pieces of the State’s case (yes, there are different rules for Defendants’ evidence). The decision to exclude refusal of the State’s breath test is not a controversial decision after Olevik. I call arguing a position that is not well-established “a reach”. I know reaches very well. I reach all the time. I try to extend and twist the law to help my clients. I know what reaching looks like, and I know what it sounds like. Judges and prosecutors are reaching and really contorting the law when they attempt to take the position that refusals of DUI breath tests remain admissible after Olevik. (If you want an example of the type of twists they’re reaching with, drop me a line.) Slow down and point out to the Judge how tenuous the State’s position is.
- One of the most helpful things that I believe that you can do with the Judge is to point out that they are not being their normal self in reaching out on a very tenuous limb to deny the motion. Point out how simple this issue is and how conjectural the counter-argument is. Consider suggesting that the trial Judge stick with a principle that has typically steered him/her right: the simplest explanation is usually correct (Occam’s razor). [“For each accepted explanation of a phenomenon, there may be an extremely large, perhaps even incomprehensible, number of possible and more complex alternatives. Since one can always burden failing explanations with ad hoc hypotheses to prevent them from being falsified, simpler theories are preferable to more complex ones because they are more testable.” https://en.wikipedia.org/wiki/Occam%27s_razor)]
- Keep the faith. Keep filing and arguing the motion.
- Keep the “ball in the air”. Keep your case alive with the hope that a case affirming our belief that the State cannot use DUI refusals will be issued soon.
- Preserve the issue – even if that means bench trying the case.
- Get your motion for new trial and notice of appeal ready. (Need templates? Drop me a line.)
Ben Sessions is the owner of The Sessions Law Firm, LLC, and he is 1 of 4 Board-Certified DUI attorneys in Georgia. He has been consistently recognized as a SuperLawyer in the area of DUI defense, and he serves as the Co-Chair of the Georgia Association of Criminal Defense Lawyers’ Legislative Committee.