This presentation includes what I think are the big issues in DUI law in 2017. If you think I missed something big, drop me a line.

1. Georgia Association of Criminal Defense Lawyers
Fall 2017
DUI Update: Same Crime,
Different Requirements
Ben Sessions
The Sessions Law Firm, LLC
715 Peachtree St., NE, Ste. 2061
Atlanta, GA 30308
TheSessionsLawFirm.com
@Ben_Sessions

2. What’s new?
A lot…
❖ Use of & comment upon refusal of breath tests after
Olevik (and what about “test” cases?)
❖ Harper / scientific evidence challenges - HGN
limitations & DRE evidence
❖ Source code & Harper challenges to the Intoxilyzer 9000
❖ Ignition interlock permits in lieu of the ALS process

4. We went from 1966 (Schmerber) to 2013 (McNeely) with
virtually no change. Things are vastly different in the
DUI world now.

5. Can the State still comment on a refusal?
As we noted, the United States Supreme Court ruled it was not
fundamentally unfair to allow the refusal into evidence against the
driver because “the driver's ability to refuse to submit to chemical
testing was not a right of constitutional dimension,” but rather was
“a matter of grace bestowed by the South Dakota legislature.” South
Dakota v. Neville, supra at 565, 103 S.Ct. 916. Indeed, this Court has
readily acknowledged that to be permitted to refuse to submit to
chemical testing is not a right of constitutional magnitude but is
one created by legislative enactment, and that a violation of due
process is not implicated when the statutory implied consent notice
does not inform the driver that test results could be used against
the driver at trial. Klink v. State, 272 Ga. 605, 606(1), 533 S.E.2d 92
(2000).
Sauls v. State, 293 Ga. 165, 167, 744 S.E.2d 735, 737 (2013) overruled by
Olevik v. State, No. S17A0738, 2017 WL 4582402 (Ga. Oct. 16, 2017)

6. Can the State still comment on a refusal?
Accordingly, we overrule Klink and other cases to the
extent they hold that Paragraph XVI of the Georgia
Constitution does not protect against compelled breath
tests or that the right to refuse to submit to such testing
is not a constitutional right.
Olevik v. State, No. S17A0738, 2017 WL 4582402, at *12
(Ga. Oct. 16, 2017)

7. Can the State still comment on a refusal?
See, e.g., Sauls v. State, 293 Ga. 165, 167, 744 S.E.2d 735
(2013); Cooper v. State, 277 Ga. 282, 290 (V), 587 S.E.2d
605 (2003); Lutz v. State, 274 Ga. 71, 73 (1), 548 S.E.2d
323 (2001); Fantasia v. State, 268 Ga. 512, 514 (2), 491
S.E.2d 318 (1997); Oliver v. State, 268 Ga. App. 290, 294
(2), 601 S.E.2d 774 (2004); State v. Coe, 243 Ga. App.
232, 234 (2), 533 S.E.2d 104 (2000); State v. Lord, 236 Ga.
App. 868, 870, 513 S.E.2d 25 (1999); Nawrocki v. State,
235 Ga. App. 416, 417 (1), 510 S.E.2d 301 (1998).
Olevik v. State, No. S17A0738, 2017 WL 4582402, at *12
Look at the cases that Olevik overruled:

8. Can the State still comment on a refusal?
Recently, the Supreme Court of Georgia decided that a compelled
breath test also falls under the Georgia Constitutional right against
self-incrimination, which protects individuals from having the results
of a compelled breath test, or their refusal to submit to such testing,
admitted against them in any criminal proceeding.
THE STATE v. COUNCIL, No. A17A1218, 2017 WL 4875582, at *2 (Ga.
Ct. App. Oct. 30, 2017)

9. What’s the next step?
Does this argument apply equally to blood tests?
Maybe. (Refer to the Fourth Amendment argument in the motion.)

10. What’s the next step?
Georgia courts have consistently held that misinformation regarding
the impact of a refusal of the requested chemical test should result in
the exclusion of the state-administered chemical test or refusal
thereof.
Deckard v. State, 210 Ga. App. 421, 436 S.E.2d 536 (1993);
State v. Pierce, 257 Ga. App. 623, 571 S.E.2d 826 (2002);
Kitchens v. State, 258 Ga. App. at 412;
State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995)

11. What’s the next step?
If implied consent improperly tells a suspect that a refusal may be
introduced against them, shouldn’t that test induced by
misinformation be suppressed?
See:
Deckard v. State, 210 Ga. App. 421, 436 S.E.2d 536 (1993);
State v. Pierce, 257 Ga. App. 623, 571 S.E.2d 826 (2002);
Kitchens v. State, 258 Ga. App. at 412
State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995)

12. What’s the next step?
Should Miranda advisements be given to an in-custody request for
the suspect to the performance of incriminatory act?

13. Harper Challenges
❖ Opinion of toxicologist as to
impairment by drugs
❖ Lack of convergence
❖ Rhomberg / Romberg Test
❖ HGN for drugs
❖ HGN for a BAC above a
certain level?
❖ Intox 9000?

14. Harper Challenges
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).

15. Harper Challenges - The Romberg Test
On cross-examination, however, the officer acknowledged
that he was not aware of any validation studies for the
Romberg test, “not like there are for the other three tests,
no, sir.” He also acknowledged that the range of plus or
minus five seconds as an indication of impairment had not
been established. His knowledge of the test was based on
his participation in DRE or “drug recognition expert”
school. No scientific or medical testimony was presented
at the hearing.
Mitchell v. State, 301 Ga. 563, 802 S.E.2d 217, 221–22 (2017).

16. Harper Challenges - The Romberg Test
We conclude that, on the basis of the evidence presented at the hearing in
this case, admissibility of the Romberg test is subject to the Harper
standard. The significance of eyelid tremors or an individual's “internal
clock,” how they may be affected by the consumption of alcohol, and
particularly whether a range of five seconds above or below the actual
passage of 30 seconds establishes impairment, are not matters of
common sense or experience, nor are they obvious to the average lay
observer. The trial court therefore erred in failing to conduct a Harper
analysis, whether through the evaluation of expert testimony or through
the examination of exhibits, treatises, or the law of other jurisdictions.
Harper, supra, 249 Ga. at 525-526 (1), 292 S.E.2d 389. We therefore reverse
this portion of the trial court's order.
Mitchell v. State, 301 Ga. 563, 802 S.E.2d 217, 221–22 (2017).

17. Harper Challenges - HGN for Drugs?

18. Harper Challenges - HGN for a BAC?
Here, the State failed to meet that standard, presenting less supporting
evidence than that found insufficient in Bravo. On cross-examination, the
officer testified that his knowledge of the HGN test was based on his
participation in police training totalling (sic) approximately two weeks,
and that he had no medical, physiological, or other specialist training.
While the officer testified, over objection, that the test was “scientific”
because his training “has shown [him] that there's a correlation between
the clues observed in this evaluation and blood alcohol content. There's a
direct connection between the two of them,” and that “several studies”
supported this, he did not identify the studies and they were not admitted
into evidence. No scientific or medical testimony was presented at trial.
Spencer v. State, No. S16G1751, 2017 WL 4341409, at *4 (Ga. Oct. 2, 2017).

19. Harper Challenges - HGN for a BAC?
We conclude that the evidence presented by the State in this case was
insufficient to establish the scientific validity or reliability of any
correlation between a particular number of clues on an HGN test and a
numeric blood alcohol content, whether a specific percentage or “equal
to or greater than” a specific percentage. The trial court therefore abused
its discretion in admitting this evidence. In light of the repeated
questioning regarding the offending evidence, as well as testimony that
Spencer was not stopped for unsafe or erratic driving, that the officer
acknowledged on cross-examination that she did not exhibit many of the
usual signs of intoxication, that Spencer had had recent surgery, and that
Spencer presented evidence that she was not less safe to drive, we cannot
say that this error was harmless, and we therefore reverse Spencer's
conviction for DUI (less safe).
Spencer v. State, No. S16G1751, 2017 WL 4341409, at *4 (Ga. Oct. 2, 2017).

20. Client refused but must fight their case?

21. Got a question?
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Thank you!
Ben Sessions
The Sessions Law Firm, LLC
715 Peachtree St., NE, Ste. 2061
Atlanta, GA 30308
TheSessionsLawFirm.com
@Ben_Sessions