Prosecuting Attorneys’ Council of

Georgia

Traffic PROSECUTOR Traffic Safety Program

Volume 1, Issue 2

Resources Field Sobriety Tests Under Attack Fay McCormack Traffic Safety Coordinator

404-969-4001 (Atlanta) and certain other [email protected] n May, 2004, the Institute of drugs cause Continuing in Horizontal Gaze I Georgia sponsored the “Georgia DUI Nystagmus. HGN Patricia Hull Update – DUI by the Numbers” Seminar. occurs as the eyes From the introduction of the first move to the side. It Traffic Safety Prosecutor speaker, it became clear that the current is the observation 478-751-6645 (Macon) plan of attack by defense attorneys, of the eyes for HGN [email protected] which has come full circle from the mid- that provides the 1990s, is to once again discredit a first and most enforcement officer’s testimony based accurate test in the upon his/her administration of the Standardized Field Training Above the Horizontal Standardized Field Sobriety Tests Sobriety Test Gaze Nystagmus test is Protecting Lives, (SFSTs) to roadside subjects, and to . Although being administered to an ultimately have this this type of alcohol workshop Saving Futures suppressed. nystagmus is most volunteer. accurate for September 22-24, 2004 The National Highway Traffic determining alcohol impairment, its Safety Forsyth, Georgia presence may also indicate use of Administration certain other drugs. (P. VIII-4, NHTSA (NHTSA) SFST Student Manual, 2002) sponsored Web sites scientific The Walk and Turn and the One- research in the Leg Stand are considered 1970s through psychophysical tests, that is, methods of Georgia Governor’s Office of a with assessing a ’s mental and Highway Safety: the Southern physical impairment. Many of the most www.gohs.state.ga.us reliable and useful psychophysical tests Research employ the concept of divided attention: National Highway Traffic Safety Administration: Institute (SCRI) they require the subject to concentrate www.nhtsa.dot to determine on two things at once. The Walk-and- roadside field Turn is divided into two stages: American Prosecutors Research sobriety tests The 2003 DUI and Vehicular Instructional Stage and Walking Stage. Institute: that were most Homicide Course had a The One-Leg Stand is divided into two accurate. The workshop to show prosecutors stages: Instructional Stage and Balance http://www.ndaa.org/apri/ research intoxication testing methods. and Counting Stage. (P. VII-1-4, NHTSA CMI, Inc. www.alcoholtest.com indicated that SFST Student Manual, 2002) three of these tests, when administered (Intoxilyer manufacturer) in a standardized manner, were a highly For each of the Standardized Field Sobriety Tests, NHTSA has National Association of accurate and reliable battery of tests for distinguishing BACs above .10, and assigned a specific number of clues, Prosecutor Coordinators: measurable indicators of impairment, www.napcsite.org through current research, BACs above .08. These three Standardized Field that the officer may observe when a National Traffic Law Center: Sobriety Tests (SFSTs) are Horizontal suspect performs the test. For example, one clue for HGN is that the subject’s eye www.ndaa.org/apri/programs/ Gaze Nystagmus (HGN), Walk-and-Turn traffic/ntlc_home.html (WAT) and One-Leg Stand (OLS). (P. cannot follow a moving object smoothly; Walk-and-Turn – the subject cannot keep The Accident Reconstruction VIII-1, NHTSA SFST Student Manual, 2002) balance while listening to instructions; Network: and One-Leg Stand – the subject sways www.accidentreconstruction.com Nystagmus is defined as an while balancing. involuntary jerking of the eyes. Alcohol Continued next page Page 2 Georgia Traffic PROSECUTOR Volume 1, Issue 2

Field Sobriety Tests Under Attack

Written by: Patricia G. Hull, Traffic Safety Prosecutor Prosecuting Attorneys’ Council of Georgia

Continued from front page that if the officer fails to administer the There are a total of six possible clues tests in accordance with his training, that a subject can exhibit for HGN, eight such variance affects only the weight to possible clues for Walk-and-Turn and be given to the tests, and not their four possible clues for One-Leg Stand. admissibility. The weight and credibility (P. VII-3-6, NHTSA SFST Student Manual, of evidence such as this should be left 2002) for determination. Coates v. State, 216 Ga. App. 93 (1995). On the other Each year it seems that the hand, the found that the Horizontal defense launches an attack upon a Gaze Nystagmus test constitutes a Alcohol is a factor different area in DUI law. This year, it scientific procedure and could be in 19% of Georgia’s appears that the bar is deriving its excluded if the court concluded that ammunition for this attack from NHTSA’s the test’s administration was invalid. crash costs. statement regarding the validation Manley v. State, 206 Ga. App. 281 (1992); studies: “It is necessary to emphasize State v. Pastorini, 222 Ga. App. 316, 319 Alcohol-related the validation of the SFSTs applies only (1996). crashes in Georgia when: The tests are administered in the prescribed standardized manner; the In the seminar, the defense cost the public an standardized clues are used to assess listed the following as the top ten “must the suspect’s performance and the know” SFST cases for attorneys: Bravo v. estimated $3.4 standardized criteria are employed to State, 249 Ga. App. 433 (2001); Hawkins billion in 1998, interpret that performance. If any one of v. State, 223 Ga. App. 34 (1996); State v. the SFST elements is changed, the Holler, 224 Ga. App. 66 (1996); Howell v. including $1.5 validity is compromised.” (P. VIII-19, State, 2004 Ga. App. LEXIS 413 (2004); NHTSA SFST Student Manual, 2002) State v. Leviner, 213 Ga. App. 99 (1994); billion in monetary State v. O’Donnell, 225 Ga. App. 502 costs and almost The Georgia Court of Appeals (1997); State v. Pastorini, 222 Ga. App. has determined that field sobriety tests 316 (1996); State v. Pierce, 266 Ga. App. $1.9 billion in such as the "walk and turn" and the "one 233 (2004); Price v. State, 269 Ga. 222 leg stand," both of which demonstrate a (1998); and Turrentine v. State, 176 Ga. quality of life suspect's dexterity and ability to follow App. 145 (1985). losses. Alcohol- directions, do not constitute scientific procedures. State v. Pastorini, 222 Ga. The challenge for prosecutors is related crashes App. 316, 319 (1996). Testimony from to adequately prepare the officer for this an officer about a suspect's inability to attack. The prosecutor and officer, as a are deadlier and complete such dexterity tests is team, must discuss any problems with more serious than considered behavioral observations by the administration of the SFSTs and fully the officer. Id. Therefore, these two assess whether this performance other crashes. tests and any testimony concerning their compromised the validity of the People other than administration are not subject to the evaluation. If both members of the team standard set out in Harper v. State, 249 are cognizant of the potential attacks by the drinking driver Ga. 519, 525 (1982), for determining the defense, these weaknesses can be whether a scientific procedure is brought out on direct examination and paid $2.1 billion of admissible. The Court further opined turned around for possible strengths. ● the alcohol-related crash bill. Protecting Lives, Saving Futures - NHTSA

the part of officers as to his training, developed by the what evidence prosecutors must have in T American Prosecutors Research an impaired driving case. Conversely, Institute’s, National Traffic Law Center, is this will give prosecutors the opportunity designed to train law enforcement and to know what to reasonably expect from prosecutors together in the detection, officers at the arrest scene and to learn apprehension and prosecution of to ask better questions. They will also impaired drivers (alcohol and other learn from toxicologists about breath, drugs), and youthful offenders. blood and urine tests. Optometrists will teach about the effects of alcohol and Law enforcement officers and other drugs on an individual’s eyes, prosecutors will learn firsthand the specifically horizontal gaze nystagmus challenges and difficulties each other (HGN). ● face in impaired driving cases. This allows for a greater understanding on *Reprinted from NHTSA’s web site. Page 3 Georgia Traffic PROSECUTOR Volume 1, Issue 2

Cooper and the Unconscious DUI ‘Suspect’

Written by: Logan Butler, Third Year Law Student, Georgia State College of Law; Intern, Prosecuting Attorneys’ Council of Georgia

injury. Buchanan, ow does Cooper v. State, 277 264 Ga. App. 148, H Ga. 282; 587 S.E. 2d 605 149. The court (2003), and its progeny affect the held that the ability of the State to obtain blood results of the test samples for DUI analysis from were inadmissible persons who are unconscious or because the otherwise unable to refuse consent chemical test was where they have not yet been conducted based placed under arrest because their on the seriousness injuries are being treated at the of the injuries in hospital? O.C.G.A. § 40-5-55(b) an accident rather permits the State to obtain such than on probable samples from “[a]ny person who is cause that the person had violated dead, unconscious, or otherwise in a the Georgia DUI . Id. at 150. Photo from www.car-accidents.com condition rendering such person incapable of [refusing the test].” In Currently, under Georgia held that the chemical test results Cooper, the Court did not address law, to chemical were inadmissible because the this section of the implied consent testing for DUI analysis cannot be defendant was misled about the statute. However, the logic used to invoked based solely on the consequences of refusing to consent support the Cooper decision could seriousness of injuries received in to the tests. Id. at *9. In reaching easily be applied to situations an accident. This effectively leaves this decision, the court clarified a where samples have been obtained the State with three options: statement it made in Buchanan v. pursuant to O.C.G.A. § 40-5-55(b). (1) a sample may be extracted via State, 264 Ga. App. 148 (2003). The In order to defend against a Cooper implied consent where the court stated: “Buchanan’s statement challenge to DUI evidence obtained person has been arrested and that testing may be authorized pursuant to subsection (b) of the exists without an accused’s ‘actual implied consent statute, the officer supporting the DUI arrest; consent’ refers to the situation should have probable cause before where the accused is unconscious having a sample extracted from a (2) a sample may be extracted and does not give ‘actual person who is “dead, unconscious, where the person has consent’…nor does he withdraw the or otherwise in a condition voluntarily given consent; and implied consent authorized under rendering [that] person incapable of (3) a sample may be extracted [O.C.G.A. § 40-5-55(b)], and [refusing the test].” pursuant to O.C.G.A. § 40-5- therefore testing is permissible under those circumstances.” 55(b) if the person is dead, The Georgia Supreme Collier, 2004 Ga. App. LEXIS 465 at Court’s decision in Cooper v. State, unconscious, or otherwise unable to refuse consent. *8; see also Buchanan v. State, 264 277 Ga. 282 (2003), found a portion Ga. App. 148, 150. of the Georgia implied consent However, relying solely on § 40- statute unconstitutional. 5-55(b) to obtain evidence for a The Collier decision Specifically, the State may no longer DUI prosecution may leave the appears to give full effect to rely on implied consent for State vulnerable to a Cooper O.C.G.A. § 40-5-55(b) which states: obtaining samples for DUI analysis challenge to the admissibility of “Any person who is dead, where that consent is based solely that evidence. unconscious, or otherwise in a on the fact that the person was Neither Cooper v. State, 277 condition rendering such person involved in a traffic accident Ga. 282 (2003), nor Buchanan v. incapable of refusal shall be involving a fatality or serious injury. State, 264 Ga. App. 148 (2003), deemed not to have withdrawn the consent provided by subsection (a) The State must have probable cause address the validity of O.C.G.A. § to believe that the driver was 40-5-55(b). However, § 40-5-55(b) of this Code section, and the test or driving while impaired in order to was addresses by the Georgia tests may be administered, subject to Code Section 40-6-392.” obtain the sample. Cooper v. State, Court of Appeals in Collier v. State, 277 Ga. 282, 291 (2003). Also, the 2004 Ga. App. LEXIS 465 (Apr. 5, Additionally, because the Georgia driver must be placed under arrest 2004). In Collier, the read the allows the State to compel citizens to take a blood or for the implied consent statute to be defendant his implied consent rights applicable. O.C.G.A. § 40-5-55(a). after he was arrested but the breath test, the Georgia implied consent statute grants a suspect the In Buchanan v. State, 264 Ga. defendant refused to submit to a chemical test. The police then opportunity to refuse to take a App. 148; 589 S.E.2d 876 (2003), the chemical test. Cooper, 277 Ga. 282, results of the chemical test of the threatened to get a search warrant and to forcibly obtain the samples 290; see also Allen v. State, 254 Ga. defendant’s blood were excluded. 433; 330 S.E. 2d 588 (1985). The defendant was not under arrest by using a catheter. The defendant but was told he had to submit to the then gave his consent to the Continued next page testing because he was involved in chemical test. Collier, 2004 Ga. an accident involving a serious App. LEXIS 465 at *4. The court Page 4 Georgia Traffic PROSECUTOR Volume 1, Issue 2

PAC’s Traffic Safety Program

Mission Statement: Our goal is to effectively assist and be a resource to our fellow prosecutors in keeping our highways safe by helping to prevent deaths and accidents on Georgia roads.

The Georgia Traffic Prosecutor addresses a variety of matters affecting prosecution of traffic-related cases, and is available to prosecutors and others involved in traffic safety. Upcoming issues will provide information on a variety of matters, such as ideas for presenting a DUI/Vehicular Homicide case, new strategies being used by the DUI defense bar, alerts and Fay McCormack Patricia Hull other traffic related matters. If you have suggestions or comments, please Traffic Safety Coordinator Traffic Safety Prosecutor contact Fay McCormack or Patricia Atlanta Macon Hull at PAC.

This newsletter is a publication of the Prosecuting Attorneys’ Council of Georgia. The Georgia Traffic Prosecutor encourages readers to share varying viewpoints on current topics of interest. The views expressed in this publication are those of the authors and not necessarily of the State of Georgia, PACOG or the Council staff. Please send comments, suggestions or articles to Fay McCormack at [email protected].

Cooper and the Unconscious probable cause to gain consent. sample based solely on the fact that DUI ‘Suspect’ Cooper, 277 Ga. 282, 292. The a person was involved in an defendant in Cooper was not under accident with injury, it logically continued from page 3 arrest. Moreover, situations that follows that a court could hold that would allow the State to withdraw the State may not obtain a chemical This reasoning seems to support the samples for chemical testing test sample based solely on the fact validity of O.C.G.A. § 40-5-55(b). pursuant to O.C.G.A. § 40-5-55(b) that a person was unable to refuse However, the Cooper decision limits are necessarily situations were the pursuant to O.C.G.A. § 40-5-55(b). the applicability of this reasoning. have not yet been placed However, O.C.G.A. § 40-5-55(b) has Cooper states that the use of the under arrest because they are not been determined word ‘suspect’ in Allen’s statement being treated for injuries. unconstitutional by the Court yet. The State may rely on O.C.G.A. § that the Georgia implied consent Under the facts posed by the statute grants a suspect the 40-5-55(b) to obtain samples for question at issue, the potential chemical testing from persons who opportunity to refuse to take a defendant is not yet under arrest chemical test reveals a flaw. In are dead, unconscious, or otherwise and is probably best described as a unable to refuse consent. However, order to obtain a sample for suspect. Without some basis of chemical testing pursuant to the to protect against a Cooper probable cause, the State probably challenge to the admissibility of implied consent statute the person cannot take a sample for a chemical tested must be suspected of DUI. such evidence, officers should also test based solely on the fact that the be able to articulate probable cause The portion of the implied consent person is incapable of refusal statute that allows for testing without that the person tested was operating pursuant to O.C.G.A. 40-5-55(b). a vehicle under the influence. individualized suspicion or Although subsection (b) of the probable cause simply because the Samples should not be taken for implied consent statute provides chemical analysis based solely on person was involved in an accident that a person incapable of refusal with injury is constitutionally flawed. the fact that the person is dead, will be deemed to have consented, unconscious, or otherwise unable to Cooper further distinguishes Allen in the facts under which these refuse. ● that under the facts of Allen, the situations arise are very similar to defendant was under arrest for DUI the facts of Cooper. Where Cooper thus providing the State with does not allow the State to obtain a