October 18, 2017

Georgia Supreme Court Strikes “Blow” To Law Enforcement Breathalyzer Policies

In Olevik v. State, the Supreme Court of Georgia (on October 16, 2017) held that the Georgia Constitution prohibits law enforcement officials from compelling a person suspected of DUI to “blow their deep lung air into a breathalyzer.” The protection against self-incrimination enshrined in the Georgia Constitution, and in Georgia case law dating back to 1879, differs from the United States Constitution, as the latter only provides protection for individuals against incriminating themselves through testimonial evidence. Tangible evidence, such as the results of a breathalyzer test is not protected by the self-incrimination provision of the 5th Amendment.

Georgia law has a two tier DUI statute under which an individual who operates a motor vehicle under the influence of drugs or alcohol can be charged. First, a person is guilty of “DUI per se” when he or she operates a motor vehicle with a blood alcohol content (“BAC”) of 0.08 grams or more. Moreover, regardless of BAC, it is unlawful for a person to drive under the influence of alcohol or drugs to the extent it is less safe to do so. The latter is commonly known as “DUI less safe.” This two tier statutory framework reflects the Georgia legislature’s belief in the importance of combatting drivers who get behind the wheel while under the influence of drugs or alcohol. However, the enforcement of this important policy requires cooperation from the suspect, as determining whether a driver is under the influence requires field sobriety and chemical tests of the driver’s breath, blood, or urine. So, to elicit cooperation from potentially impaired drivers, Georgia enacted an implied consent statute which provides that drivers have agreed to submit to chemical testing as a condition of receiving a driver’s license, and that a person’s driving privilege will be suspended if he or she refused to take a chemical test after being arrested for a DUI offense, or having been involved in a traffic accident resulting in serious injuries or fatalities.

Mr. Olevik was arrested and charged for DUI, and after the trial court rejected his motion to suppress the breath tests on the basis that the he was coerced into taking the test in violation of his right against compelled self-incrimination, Olevik was found guilty of the charges following a bench trial. Olevik appealed the denial of his motion to suppress the breathalyzer results, but the Supreme Court of Georgia ruled that his claims were precluded by earlier case law. However, at oral argument Olevik’s attorney requested that the court reexamine whether the precedent remained good law. Specifically, the Supreme Court held that Klink v. State was wrongly decided to the extent that it “concluded that a breath test did not implicate the state constitutional right against compelled self-incrimination.”

April 27, 2016

Motorist Strikes 3 Children With Car in Atlanta

by Kevin C. Ford, Trial Lawyer

Bellwood: Community comes together to mourn loss of star child student

The northwest Atlanta neighborhood of Bellwood is still in deep mourning following a vehicle incident which resulted in the death of one child and critically injuring another two youngsters. Atlanta police are still investigating the circumstances, although what is known so far is Isiah Ward, 9, has died from injuries sustained while his brother Roland, and friend Timothy Hood, 12 are still in a critical condition. Isaiah was kept alive on life support until Sunday afternoon.

The driver of the vehicle, Ryan Lisabeth, 28, is under suspicion of Driving Under the Influence (DUI) while in control of a vehicle which struck the children on the sidewalk of Joseph E. Boone Boulevard on the evening of Friday 22nd May. While Atlanta police continue with their inquiries, the local community has vociferously expressed their support for the families involved and pledged to seek justice on the children’s behalf. Although Lisabeth had sought to be bailed, the judge denied his bond leaving him in custody – which is perhaps a small mercy given the depth of feeling in the community against him and the groundswell of public opinion about the tragedy.

February 2, 2015

Wrong Way Drivers: What Made Them Do It

by Kevin C. Ford, Trial Lawyer

Fortunately, I have never had the real life experience of seeing a wrong way driver at night on the highway. In the daytime, I have seen numerous wrong way drivers in cities with many one-way streets, like downtown Atlanta and Savannah, but I did not feel threatened as these drivers were traveling fairly slow and I saw that they quickly figured out their mistake without harming anyone. However, recently in Milwaukee, Wisconsin, a city that boasts the highest number of taverns per person in the country, a wrong way driver entered the eastbound lane of I-94 (a major highway) and traveled in the opposite direction and struck an innocent motorist in a head on collision. The collision happened at night and tied up traffic for two miles, and clearing the accident took more than five hours. Sadly, the wrong way driver passed away. The details are sparse and do not contain any information as to whether this wrong way driver was impaired by alcohol and/or drugs. Yet, at 8 p.m. at night, it is hard to believe that such a driver was guilty of simply bad judgment.

The question becomes…. what would cause a motorist to drive the wrong way on a major highway? I believe the answer is simple: drugs, alcohol or a combination of the two. Studies indicate that the incidence of wrong way drivers increases at night between 1-3 a.m. And, if you are driving by yourself at or around the same time on the highway, then by all means, avoid the fast lane on the far left as if your life depended on it…because it does. That’s because research shows that most wrong way drivers typically enter the far left lane and encounter little resistance…until they do…at a high rate of speed.

Some of these wrong way drivers have been drinking at their favorite bar, restaurant or club. I remember a collision that involved a fatality where the grossly negligent and inebriated driver had just left a “gentleman’s club” in Atlanta. He entered I-75 traveling the wrong way, struck an innocent motorist and both were killed in the ensuing crash. Based on receipts from his credit card and blood alcohol test, it was determined that the at-fault driver had just left the topless bar and was heading home seriously intoxicated.

September 24, 2013

86 PERCENT OF DRIVERS INVOLVED IN 7-CAR PILE UP WERE CHARGED WITH DUI

by Kevin C. Ford, Trial Lawyer

What are the odds that six of seven drivers involved in a chain reaction car wreck in Clayton County, Ga., were driving under the influence? At a simple glance, 86 percent of the drivers. Unfortunately, I do not have access to data to crunch the numerical statistics of how often these variables exist at one time in the United States. However, the number has to be quite, quite low.

Granted, it was a holiday weekend and motorists had free time to travel, see loved ones and friends, to mix and mingle and perhaps…. imbibe a little alcohol. It was with this possible intention in mind that we come to know the facts of the pile-up that took place around 3 a.m. on July 3, 2013, on or around I-75 at C.W. Grant Parkway–north of I-285 close to the exit near the international concourse of Hartsfield-Jackson Atlanta International Airport. Of course, the facts are not complete without mentioning that this chain reaction pile up was allegedly caused by pedestrian that walked or ran onto the southbound lane of I-75 and was promptly struck by the first car.

According to the Atlanta Journal-Constitution article, the wayward pedestrian caused the first vehicle to slow or stop, which proximately resulted in the other six vehicles directly behind it to subsequently crash into the rear-end of each respective vehicle. The pedestrian was taken to the hospital in critical condition and charged with a violation of pedestrian entering the roadway. Six of the motorists were charged with driving under the influence and of these six motorists, two were also charged with following too closely. I think it can be fair to say that speed and decreased reaction time due to alcohol intake were factors in this incident.

Driving under the influence (DUI), driving while intoxicated (DWI), drunk(en) driving, drunk driving, operator under the influence, drinking and driving, impaired driving or driving to the extent less safe are crimes associated with operating and driving a motor vehicle with blood levels of alcohol that are in excess of a legal limit. A review of Georgia DUI laws can be found here as promulgated by the Georgia Governor’s Office of Highway Safety. The prominent and most widely used DUI law connected with the operation of a motor vehicles in Georgia is O.C.G.A. 40-6-391 that sets forth the grounds for driving under the influence of alcohol, drugs or other intoxicating substances. As a majority of the motorists were charged with a DUI violation, it is presumed that the motorists either submitted to an alco-sensor at the scene, failed field sobriety tests, refused testing completely and/or consented to a blood alcohol test.
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May 20, 2013

One Drink Minimum for Drivers Is Coming To A State Near You

by Kevin C. Ford, Trial Lawyer

Over the past 10 years, the standard or benchmark for determining whether a motorist is operating a vehicle under the influence of alcohol has been set at 0.08 blood alcohol concentration (BAC); although, this standard is not applicable to commercial and tractor trailer drivers who are subject to 0.04 BAC. The National Transportation Safety Board (NTSB) promulgated this benchmark.

The NTSB is a U.S. government investigative agency that was formed in 1967. Allegedly, the NTSB is an “independent group” that is primarily responsible for the investigation of transportation accidents including airplanes, boats, trains, pipelines and vehicles, among others. The NTSB is composed of five members that are nominated by the President of the United States (POTUS) and confirmed by the U.S. Senate for five-year terms. No more than three of the five members can be from the same political party. The most powerful weapon in the arsenal of the NTSB is its safety recommendation(s). The NTSB has advocated more than 13,000 recommendations in its timeline – most of these recommendations have been accepted and adopted – including the previous recommendation of 0.08 BAC for motorists.

States and other governmental entities adopt the recommendations of the NTSB because the NTSB is backed by the purse strings of the federal government. In other words, if any state rejects the new proposed 0.05 BAC benchmark for DUI drivers, then that state risks losing federal highway funding.
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March 13, 2013

Woman Attempts To Elude DUI In Toy Truck

by Kevin C. Ford, Trial Lawyer

This is not just another shocking headline; unfortunately, there was indeed a woman who resided in Craighead County, Ark., who tried to escape from the police using a child’s battery operated toy truck. To provide some background, Craighead County is located in the far northeast portion of the state and has a population just shy of 100,000 people. This county is composed of two county seats: Jonesboro and Lake City, where the sale of alcoholic beverages is prohibited by law. This incident occurred in Jonesboro.

Now to proceed to the facts of the crime. On March 3, 2013, around 5:30 p.m., 29-year-old Jamie Jeannette Craft was operating a 2001 Pontiac Grand Am on the streets of Craighead County. Just prior to the accident, Ms. Craft was traveling in excess of the speed limit and had no regard for the safety of others or their property. She sped around a corner and collided into a stationary mobile home under the panel of said trailer.

Could things actually get worse for the young Ms. Craft? Always crafty on her feet, she got out of her vehicle and immediately grabbed the adolescent daughter of a nearby witness and proceeded to step into battery operated Powers Wheel truck to commence her getaway. Looking ever conspicuous in her white sweatshirt sans pants and shoes, Ms. Craft was still trying to determine how to operate the toy truck when the witness took his daughter inside his home.

The witness then came back outside with his son (owner of the toy truck) and forced Ms. Craft to exit said vehicle at which point Ms. Craft started to scream and made a beeline for her mother’s mobile home. When police arrived, they had to hold Ms. Craft up by the shoulders and administer a portable Breathalyzer test, which registered a 0.217 blood alcohol content (BAC); this is three times the legal limit.
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August 28, 2011

CLAYTON COUNTY WOMAN ON CELL PHONE WITH ONE PERSON KILLS THREE

by Kevin C. Ford, Trial Lawyer

On August 25, 2011, Priscilla Johnson, 48, of Clayton County, Georgia veered off Highway 138 and collided into three teenagers killing all three. The third victim was taken off life support at Grady Hospital on August 27. Ms. Johnson was charged in the Magistrate Court of Clayton County with more than 12 separate offenses, including reckless driving, DUI, hit and run and failure to exercise due care while using a cell phone.

Allegedly, Johnson was on the cell phone arguing with her husband when she drove through a red light, left the roadway and crashed into the teenagers. Tests indicated that Johnson also had a high level of antidepressants in her system. The teenagers were walking on the side of the highway at the time of the impact. One teenager died at the scene and two others died later at the hospital.
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July 9, 2011

Can Hines Ward Dance Out Of The DUI Charge In DeKalb County

by Kevin C. Ford, Trial Lawyer

Hines Ward, current wide receiver for the Pittsburgh Steelers, was arrested early this morning in DeKalb County for driving under the influence (DUI). He previously played football at the University of Georgia from 1994-1997 as a tailback and wide receiver. If you are not a fan of football, you may have seen him dancing on Dancing With The Stars where his fleet feet won him the coveted mirror bowl trophy. My wife, a Georgia graduate, told me the details. In any event, he spent several hours in one of DeKalb County’s finest facilities today.

The facts are somewhat sparse. However, Ward was booked in the DeKalb County Jail around 3:41 a.m. and released on a $1,000.00 bond. He allegedly told officers that he had been at a club in downtown Atlanta and had two drinks. The AJC reports that this is not Hine’s first brush with the law in DeKalb County, Georgia as he was previously charged with reckless driving and speeding. Apparently, he entered into a plea bargain and pled guilty to speeding with the more serious charge of reckless driving being dismissed.

Allegedly, Ward was arrested for driving under the influence of alcohol. He failed a field sobriety test at the scene and refused to take a breathalyzer. In Georgia, the law mandates that a motorist shall not drive or be in actual physical control of a vehicle if the motorist was under the influence of alcohol, drugs or toxic vapor that makes it less safe to drive. Since Ward refused the breathalyzer, then under Georgia law his driver’s license would be suspended for one year and the solicitor would be able to admit evidence of his refusal in court against him. However, Ward could request an administrative hearing on his license suspension.

Yesterday at 11:05 a.m., the day before his arrest, Ward posted on his official Facebook page that he was “bad” about driving and texting saying “I am bad at doing that. It’s very unsafe. Help remind me from time to time to stop texting, tweeting, or facebook while driving. Let’s help each other!” Fourteen minutes later, he wrote ” I know it’s dangerous. Trust me, I love my LIFE! But it’s a bad habit I have. So let’s help each other to knock my habit. And ladies putting on make up while driving is just as bad.”

Ward’s penchant to text and drive is a bit concerning inasmuch as he apparently resides in Sandy Springs, Georgia in the off-season and presumably is driving regularly on the roads in Georgia. Ward is but one of many motorists that text and drive. And the purpose of this blog is not to focus on Ward or to insinuate that he is a bad person. He’s not. He is just human and makes mistakes as humans do. Rather, the issue should be focused on inattentive drivers on the roadways in Atlanta and Georgia.
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July 5, 2011

Georgia Convenience Stores Now Liable To Third Parties For Selling Alcohol to Intoxicated Persons

by Kevin C. Ford, Trial Lawyer

In a stunning move that has broad implications, the Georgia Supreme Court issued an opinion today in Flores et al. v. EXPREZIT! Stores 98-Georgia, LLC., et al., S10G1652, that found a Georgia convenience store was liable to the families of individuals killed and injured as the result of an intoxicated person who purchased beer at the store and subsequently caused an auto collision. The justices voted 6-1 (Judge Benham the lone dissent) and held that Georgia’s Dram Shop Act, O.C.G.A. 51-1-40, applies when a store sells “closed or packaged containers of alcohol not intended for consumption on the premises to a noticeably intoxicated adult.”

Previously, case law in Georgia never expanded the Dram Shop law to include grocery stores, convenience stores or mom-and-pop stores. For those who are unfamiliar with the definition of a dram shop, a dram shop is a shop (e.g. tavern, bar) that sells alcohol or liquor by the dram (a unit of measurement for liquid). Dram Shop law are statutes or laws that impose legal liability on businesses/establishments that sell alcohol to noticeably intoxicated persons who then cause injury or death to persons as a result of crashes or accidents that are alcohol related.

In the case before the Supreme Court of Georgia, Billy Joe Grundell drove to Exprezit! Stores 98-Georgia with his friend and bought a twelve pack of beer roughly four hours before the crash. The facts showed that Grundell was noticeably intoxicated at the time that the clerk sold him the beer. Grundell left the store, got into his vehicle and drove away consuming the twelve pack at a later point in time. Thereafter, Grundell crossed the centerline of a highway and crashed into a van traveling in the opposite direction. Grundell’s blood alcohol concentration (BAC) was 0.181 grams per 100 milliliters which was equivalent to twice the legal limit in Georgia. As a result of the car collision, six people were either killed or injured.

The trial court and the Court of Appeals both agreed that the Dram Shop did not apply to the sale of closed or packaged alcoholic beverages that were not intended to be consumed on the premises of the shop. However, the Supreme Court interpreted the terms “sells, furnishes, or serves” alcohol to also include sales of alcohol at places other than taverns, bars and nightclubs inasmuch as convenience stores are indeed selling alcohol. The Supreme Court further found that one of the two optional exceptions in the Dram Shop law imposing legal liability applied to Exprezit inasmuch as the store’s clerk furnished or served alcohol to a noticeably intoxicated adult (Billy Joe Grundell). The store argued that it had no idea that Grundell would soon be driving and that convenience store clerks have limited time to determine whether a customer was noticeably intoxicated at the time of sale.
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