• 2 Investigates: Drivers 'too drunk' to consent get evidence thrown out

    By: Jodie Fleischer

    Updated:

    GWINNETT COUNTY, Ga. - A Georgia Supreme Court ruling earlier this year has created a legal trick by which drunk drivers are getting key evidence against them thrown out by arguing they were too drunk.

    Drivers are convincing judges that they were not thinking clearly when they agreed to take a voluntary breath, blood or urine tests, because of intoxication.         

    Channel 2 investigative reporter Jodie Fleischer found that the drivers can still go to court and plead not guilty later after the prosecutors' best evidence has been suppressed.

    "It certainly is a ruling that's going to impact every DUI case," said defense attorney Mike Hawkins, who doesn't see it as a trick, but a sound constitutional argument.

    "Think about consent in any context. It has to be knowing and intelligently given," Hawkins said arguing that a driver cannot do that when he or she is drunk.

    Attorney Lance Tyler was the first to win the argument for his client, John Williams. The case went all the way to Georgia's Supreme Court, which ruled in March that Williams might not have “actually” consented to giving his blood, and that Gwinnett State Court Judge Joseph Iannazzone should reconsider his earlier decision not to suppress the results.

    "The defendant wasn't actually capable of an informed waiver of his constitutional rights," Tyler argued to Iannazzone in September. A week later, Iannazzone kicked out Williams' blood test, along with the blood-alcohol content (BAC) results for five other drivers whose cases he'd heard.

    "If a DUI defense lawyer is not raising the 'Williams issue' I frankly think it's malpractice," Hawkins said.

    If it sounds ridiculous for a defense attorney to argue that his or her client was too intoxicated to be able to make a sound legal decision about the search, it's equally strange to hear a prosecutor argue that the driver wasn't that drunk.

    "You would think that that's absurd, right?" said Gwinnett County Solicitor Rosanna Szabo, whose office has been the most impacted, mainly due to Iannazzone's interpretation of the Williams ruling.

    But Channel 2 found successful Williams arguments filed in Fulton, DeKalb and Cherokee counties as well.

    Georgia officers and prosecutors have traditionally relied on what's called “implied” consent, expressly given when you get your driver's license.

    The Williams case called the language that officers read along the roadside into question.

    “Think of those first words: 'Georgia law requires you to submit,' Hawkins said. "If I'm told by a police officer that I'm required to do something, you can bet that in all likelihood I'm going to feel pressure to submit to the test."

    "I'm not the legal age to drink and drive, but I haven't had too much to drive," 20-year-old Philip Bowman can be heard telling a Gwinnett police officer during a 2014 traffic stop.

    Court records say the officer did not conduct field sobriety tests because Bowman was too "unsteady" and vomited in the patrol car on the way to jail.

    "I need a yes or a no to this," the officer told Bowman, asking for a breath test.

    "A yes or a no to what?" Bowman replied.

    "Will you submit to a state chemical test of your breath under the implied consent law?"

    "I mean f*** it, man, why not?" Bowman's replied.

    When the officer later asked for consent for a blood test, Bowman replied, "Whatever you've got to do."

    Bowman's blood-alcohol content registered .225 percent but Iannazzone threw out the evidence, noting that Bowman also had "a pretty good accident" which could have ''rattled" him.

    Iannazzone's order says: "This court finds that the state was only able to show that defendant's responses indicated acquiescence to the officer's request... but was unable to show actual consent."

    Judges also take into account whether a driver understands that the test is voluntary.

    A DeKalb judge threw out Abraham Kersse’s breath test because his English was poor, and he couldn't clearly understand the officer's instructions. He pleaded guilty anyway.

    Defense attorneys liken the legal standard to a person's ability to void a contract that they signed while intoxicated. Judges also refuse to accept a guilty plea from a defendant if he or she is under the influence at the time.

    Szabo said she will not dismiss any cases just because her best evidence got suppressed.

    In fact, she's already decided to appeal six of Iannazzone's rulings, which could leave the cases pending for some time.

    She could still use the officer's testimony, field sobriety test results, and dashcam video if the patrol car was equipped with a camera.

    "It is difficult, because when you go in front of a jury and the juries these days watch CSI, they expect scientific tests," she said.

    Court rules prohibit her from telling the jury what happened to the test, or even that there was a test, even if the driver eventually goes to trial and pleads not guilty.

    "Oh, it is frustrating," Szabo said. "I think anybody who values the truth is frustrated to not be able to reveal the truth."

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