Georgia DUI Blog

     “30 Rock” star and former “Saturday Night Live” regular Tracy Morgan was
arrested in predawn hours in November, 2006, in New York on charges of drunken driving.  The 38-year-old comic was charged at the 33rd Precinct.  Morgan was also on probation in Los Angeles for a DUI conviction. He was charged in January, 2006, for driving with a blood-alcohol level of .13 — well above the .08 legal limit — and a month later he pleaded no contest to a misdemeanor charge.
     The comic was sentenced to 36 months of probation and ordered to attend an
alcohol-education program.  Police sources reported that Morgan was stopped at 4:38 A.M. in the Bronx and “was unable to maintain a position in a lane of traffic.”   Morgan was a “Saturday Night Live” cast member from 1996 to 2003, and was known for such recurring characters as Dominican Lou, Mrs. Parker and Captain Munclair Vanderhousen III.   He left the show when NBC offered him a chance to develop his own “Tracy Morgan Show,” but that venture was short-lived.   Morgan has nevertheless stayed busy, appearing in such films as “Little Man” with the Wayans brothers, and “Head of State” with Chris Rock, before returning to TV in “30 Rock.”

     GLENDALE, Calif. —  In October, 2006, Haley Joel Osment pleaded no contest
to misdemeanor drunken driving and drug possession charges resulting from a July accident in which he crashed his car into a mailbox.
     Superior Court Judge John Doyle sentenced the 18-year-old actor to three years probation and ordered Osment to spend 60 hours in an alcohol rehabilitation and education program, as well as attend at least 26 Alcoholics Anonymous meetings over a six-month period.  Osment, who didn’t attend the court hearing, also must pay $1,500 in fines.  The actor’s attorney, David Wood, entered the no contest pleas on his client’s behalf to one count each of misdemeanor driving under the influence and misdemeanor marijuana possession. Two other charges — another misdemeanor DUI and a vehicle code infraction — were dropped by prosecutors.  Osment fractured a rib and injured his shoulder when he crashed and flipped his 1995 Saturn in La Canada Flintridge on July 20. No one else was in the car, which hit a mailbox mounted on a brick base.

     A Texas state lawmaker instrumental in the passage of legislation increasing penalties on drunk drivers was himself arrested late Wednesday (April 30, 2008) for driving while intoxicated (DWI). Texas State House Transportation Chairman Mike Krusee (R-Round Rock) now faces the special $3000 “driver responsibility fee” that he rushed into law in June 2003.

     “Krusee’s drunk driving, and placing our families in danger, is just yet one more disappointment from an elected official who always ignores the public,” Sal Costello, founder of People for Efficient Transportation, told TheNewspaper.

     According to Krusee’s arrest report, state trooper Michael A. Scheffler spotted a black 2007 BMW 530i weaving on Anderson Mill Road near Highway 183 at 10:13pm. Scheffler also noted that the BMW’s registration expired in December 2007 and initiated a traffic stop. The trooper noted Krusee manifested many of the standard indicators of intoxication, including the “strong odor” of alcohol on Krusee, “the driver’s eyelids were red and watery and his eyelids were droopy,” and the failure to pass sobriety tests. Krusee allegedly refused to take a breathalyzer, which means that unless his attorney files an appeal within fifteen days he will be deemed automatically guilty of refusal. Starting June 10, his license would be suspended until he pays a $125 reinstatement fee any time after October 28.

     In his second trial for the same offense, Krusee faces the $3000 driver responsibility fee, a judicially imposed fine of up to $2000 and between three days and six months in jail. Generally, first-time offenders receive probation instead of jail time. This probation involves reporting in to a social worker monthly, attending a 12-hour educational course, performing between 24 and 100 hours of mandatory community service, submitting to various evaluations and attendance at a “Victim Impact Panel.” Each of these additional requirements comes with its own set of additional fees and costs.

     Krusee is one of the most outspoken advocates of toll roads in the state and had been rumored in line for appointment to the Texas Highway Commission. Krusee is not running for re-election.

Wausau, WI. Mar 28 (AP) – Cars lining the street. A house full of young people. A keg and drinking games inside. Police thought they had an underage boozing party on their hands.

But though they made dozens of teens take breath tests, none tested positive for alcohol. That’s because the keg contained root beer.

The party was held by a high school student who wanted to show that teens don’t always drink alcohol at their parties.  Dustin Zebro, 18, said he staged the party after friends at D.C. Everest High School got suspended from sports because of pictures showing them drinking from red cups.

Zebro purchased a quarter-barrel of 1919 Classic American Draft Root Beer, and by 10 p.m. Saturday, the scene outside his rural Wausau home had all the makings of a teen drinking party – cars, noise and kids…

Nearly 90 breath tests were done, and officers even searched locked rooms for hiding teens.

Now, there’s a lesson to be learned here, but it’s probably not the lesson the cops wanted to teach these youngsters.

Richie Sambora has been arrested for DUI in Laguna Beach, California.  According to news reports, he was cooperative with officers and was arrested without incident.  He reportedly took some field sobriety tests prior to getting arrested.  It appears that in addition to the DUI, he will also be charged with child endangerment since his daughter and another juvenile with him.   The Nanny drove the girls home.  Sambora has reportedly checked into rehab.

In Georgia, if convicted, he could actually get 3 DUI convictions for this one episode and lose his license for 5 years as a “habitual violator.”  DUI and DUI child endangerment charges do not merge and count as separate convictions.  I don’t know what the law is in California, but someone had better refer this man to Lawrence Taylor (after he gets out of rehab).

Atlanta ranks 12th on this list.A sort of interesting article.  They rely on various factors such as liver disease, DUI arrests and some statistics from MADD in determining the ranks.

See article HERE.

Thanks to lawyers that have been fighting for the source code that controls the operation of the Intoxilyzer it looks like the tide is turning. Previously, prosecutors all over the country have been objecting to turning it over because it is a “trade secret” and that the State does not have it in their possession.

Some Judges have Ordered CMI to turn it over and the company has been flatly refusing to do so. See Contempt Order here. cmi-turnover-order.pdf

CMI has finally decided to cooperate. They are willing to let it be examined subject to a protective order. I don’t believe this has been accomplished yet and we have not seen the proposed protective order and how restrictive it will be. See attached. CMI memo

CMI’s new “state of the art” machine has more problems.  Now folks are getting charged with refusals through no fault of their own.

See the attached memo. fdle-memo.pdf

Your hematocrit level is the ratio of aqueous portions and solid portions of your blood.  When alcohol enters your bloodstream it is carried in the plasma (liquid portion).  Alcohol does not get absorbed into the red blood cells and other solid material in your blood  Someone with a higher hematocrit level will have more solid parts in their blood and therefore will have less space for the alcohol to disperse in the liquid portion of the blood.  Normal hematocrit differences can elevate a BAC by 10% to 14%.

Shortly after this blog was launched last year a producer from the “Oprah” show contacted me, because they were considering a segment on bariatric surgery and alcohol consumption.  She had found our last article on the subject while researching on the web and had several questions.  We talked for quite some time, and a few weeks later they aired their segment.  As a result of the publicity a doctor in California hurriedly put together an experiment.  The following story summarizes his findings.

SAN FRANCISCO (Associated Press, June 17, 2007)- People who had obesity surgery got drunk after just one glass of red wine, researchers reported in a small study that was inspired by an episode on “The Oprah Winfrey Show.”

“A lot of people think they can have one glass of wine and be OK,” said Dr. John Morton, assistant professor of surgery at Stanford University Medical Center, who is the study’s lead author. “The concern here is they really can’t.”

Morton has performed more than 1,000 gastric bypass, or stomach stapling, surgeries. He said he routinely warns his patients about drinking alcohol, but it wasn’t until Winfrey discussed the issue on her show last October that the public really took notice. He said questions poured in. “I didn’t find a whole lot in the literature, so that prompted the study,” he said.

The research team gave 36 men and women - 19 who had obesity surgery and 17 who did not - five ounces of red wine each to drink in 15 minutes. Using a breathalyzer, their alcohol levels were measured every five minutes until it returned to zero. More than 70 percent of the surgery patients hit a blood-alcohol level of 0.08 percent, which qualifies as legally intoxicated in California, and two reached levels above .15, Morton said. By contrast, most of the control group had levels below 0.05 percent, the study reported.

Researchers also found that obesity patients took longer to sober up. After matching the control group with the patient group for age, gender and weight, they found the patients took 108 minutes on average to return to a zero blood-alcohol level versus 72 minutes for the control group. Morton said the obesity surgery patients don’t produce as much of an enzyme that breaks down alcohol because their stomachs are smaller. Also, the alcohol passes to their small intestine faster, speeding up absorption, he said.

Dr. Madelyn Fernstrom, director of the weight management center at the University of Pittsburgh Medical Center, said Morton’s results support alcohol warnings normally given to gastric bypass patients. However, she called drinking five ounces of wine in 15 minutes an “artificial” test. No one - let alone bariatric surgery patients - would be advised to drink that amount of alcohol so quickly, she said.

TAMPA - Daniel Brock won high praise for jailing impaired motorists. Mothers Against Drunk Driving honored him. So did his bosses. But one of Hillsborough County’s most aggressive DUI deputies may have wrongly sent dozens of people to jail, the Sheriff’s Office acknowledged on Thursday, June 14, 2007.

The agency fired Brock on May 24^th. In one year, Brock arrested 58 people whose blood-alcohol content was below 0.08, the level at which state law presumes a driver is impaired, an internal affairs audit showed. “I don’t prescribe to the theory that somehow you have to be 0.08 to be drunk or impaired, ” Brock, 38, told investigators. (Editor Note: I bet he “prescribes” to the theory that somehow everyone is impaired or too drunk to drive at .08)

A driver may be charged with DUI in Florida if the blood-alcohol level is between 0.05 and 0.08 percent, but there must be other evidence of impairment, such as a swerving vehicle. In 43 of those 58 cases, motorists demonstrated no visible impairment behind the wheel, according to an internal affairs report made public Thursday. In 41 arrests, Brock also failed to make a case with urine samples, the report states.

Repeatedly, investigators found Brock reported failures in field sobriety tests when his patrol car video camera documented the opposite. He wrote, for instance, that a driver on Oct. 25, 2005, lost balance while turning. The video of the encounter showed that wasn’t the case. The driver blew a 0.01 in the breath test but was arrested anyway. He said drivers incorrectly recited the alphabet, used arms for balance and slurred speech - when the video showed correct alphabets, perfect balance and clear speech.

Records show he pulled people over on DUI stops 17 times while his cruiser was occupied with other prisoners. That’s against procedure. He routinely filed arrest reports days, even weeks, after making an arrest. He told internal affairs Detective Bruce Crumpler that he always reported the results of field sobriety tests based on memory. Wouldn’t that leave room for errors, Crumpler asked? “Well, there’s room for error, ” Brock told Crumpler. “I’ve never had a problem.” (Editor’s Note: Until now his job was not on the line, his liberty was not restrained, and his license was not jeopardized. No wonder he had never had a problem.)

His paperwork became the subject of scorn at the Hillsborough State Attorney’s Office, where prosecutors said the deputy tarnished his reputation by filing inaccurate arrest reports that lacked important details. “He doesn’t have a very good reputation for being a very good DUI officer that we care to work with, ” prosecutor Jennifer Gabbard told Crumpler. “It’s almost like whatever you can do to make it look like you’re arresting people.”

From October 2005 to October 2006, Brock made 313 arrests for driving under the influence. He failed to activate his cruiser’s audio and video equipment in 40 percent of his stops, instead relying on his “wrought memory” to recall important arrest details, the audit showed. Within the Sheriff’s Office, Deputy Brock previously had been praised for his “outstanding professional service” and was consistently recommended for raises. His superiors rated his performance “satisfactory” and called him a credit to the office. He was lauded as a dedicated deputy who spoke to high school students about the perils of impaired driving.

“We always felt he was a good officer, ” said Becky Gage, 55, the victim advocate for Hillsborough’s MADD chapter. “As long as officers are within the scope of the law, then we support their efforts to remove impaired drivers.” (Editors Note: MADDs leadership embraces a “zero tolerance” standard for everyone, so they believe a person who drank one beer at a ball game should be arrested.)

However, the former deputy encountered a few bumps in the road. He was suspended and sent to driving school in 2000 after a string of what the Sheriff’s Office deemed avoidable traffic accidents. In 2006, he was named in a federal lawsuit alleging that he physically attacked the mother of a teenage boy he arrested in 2002. The Hillsborough County woman said Brock forced himself into her home, pushed her into a corner and sprayed her with pepper spray. The lawsuit is unresolved.

During the recent internal affairs investigation, Brock denied trying to boost numbers for personal recognition. It was unclear Thursday whether Brock intends to appeal his firing. He told investigators that given the chance, he would conduct his DUI stops the same way. Said Brock: “I mean, perfect world, we need more deputies and fewer people.”

Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at www.aafp.org/afp/990301ap/1161.html). The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.

In People v. Bonutti, ___ Ill.App.3d ___, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period.  However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant’s claim the breath test was invalid.

In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).

The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD.  In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.

Dr. Ronald Henson, Ph.D., C.P.C.T.

Georgia legislator, Ben Harbin, was arrested on Sunday for DUI. He was released on $1200.00 bond. Read the story from the AJC here. Here is a quote from the story.

At about the time of the crash, Robby Russ, a waiter at the Standard Food & Spirits, heard what he said sounded like a boom and looked out through the large window of the bar to see a utility pole “crooked like the Leaning Tower of Pisa.” Russ, 41, said he ran out to help. He said Harbin was coherent and without any visible signs of injuries. He wasn’t in “bad shape on the intoxication level,” said Russ, who has been tending bars for 18 years. “I know he’s been charged with DUI, and I know he’s an important guy. But he wasn’t wasted,” he said. “He wasn’t slurring his speech or falling over his face. He composed himself very well.”

Sounds pretty good, right? Check out this arrest photo. Not bad.

This article was published by Reuters on April 7, 2007.

LONDON, April 7 (Reuters) - An airline pilot arrested just before take-off on suspicion of being over the alcohol limit was not drunk and the diet he was on may have been to blame for the confusion, airline Virgin Atlantic said on Saturday.

Police arrested the 47-year-old pilot of a New York-bound Virgin Atlantic [VA.UL] plane at London’s Heathrow airport last Saturday after being tipped off by security staff who thought the pilot had been drinking.

While an initial breath test showed the pilot to be over the alcohol limit, police told the pilot on Saturday that a blood test was negative, Virgin Atlantic spokesman Paul Charles said.

“The result showed the amount of alcohol in the blood was consistent with that of a non-drinker,” he said.

No charges will be brought against the British pilot, whose name was not released. The pilot, suspended after the incident, will be able to resume his duties immediately, the airline said.

“He is elated with the news and is keen to resume his flying career as soon as possible,” Charles said.

Charles said a diet the pilot had been on may have been the cause of the mistake. A laboratory that carried out a blood test on the pilot said some diets led the body to generate increased levels of acetone, he said. “It would smell like alcohol on someone’s breath,” he said.

11Alive.com - Fatal DUI Wreck Brings 10 Year Sentence

One interesting fact here is that the victims’ families were siding with the defense and asking for probation.

If this bill gets out of committee and passes as written, here is what you can expect. Oh yeah, and when it hits the floor it will likely get an amendment that will gut Georgia’s implied consent law.

First lifetime DUI
10 days in jail, can suspend or probate all but 24 hours if BAC is under a 0.08
Ignition interlock for 120 days
40 hours Community service (as low as 30 if under .08)
Risk Reduction
Clinical evaluation
Fine 300-1000

Second lifetime DUI
Please note there is no 5 year lookback period, this is 2nd lifetime!!!!!
High and aggravated misdemeanor (no good time credit at jail)
10 days in jail, cannot suspend or probate if BAC is over 0.08 (can suspend all but 96 hours if BAC is under .08)
30 days of community service (as low as 60 hours if under a .08)
RR
Eval
Fine 750-5000.00

3rd DUI in 10 years
FELONY — 1 to 5 years in prison
180 days in jail not suspended or probated
At least 60 DAYS of community service
RR
Eval
Fine 1000-5000.00
Probation of 5 years less jail time

3rd outside of 10 years (i.e. 3rd lifetime)
FELONY — 1 to 5 years I prison
60 days not suspended or probated
60 DAYS of community service
RR
Eval
Fine 1000-5000
Probation of 3 years less jail time

4th or subsequent lifetime DUI
FELONY– 1 to 5 years
1 year not suspended or probated
60 DAYS of community service
RR
Eval
Fine 1000-5000
Probation of 5 years less jail time

If you are in prison for any of the above sentences, there is no early release, pardon or parole unless the defendant agrees to go to a drug court program under OCGA § 15-1-15 or something similar authorized by the court.
To start with, they are only going to start looking back at the convictions obtained after 7-1-2002 for sentencing purposes under this law.

Under 21 — 1st conviction lifetime
10 days to 12 months all but 24 hours can be suspended or probated regardless of BAC
Fine 300 to 1000
40 hours of community service
RR
Eval

Under 21 — 2nd conviction lifetime
High and aggravated misdemeanor
Fine 750-5000
120 days to 12 months in jail and all but 72 hours can be suspended or probated.
30 days of community service
RR
Eval

Under 21 — 3rd lifetime conviction
FELONY 1 to 3 years in prison
All but 120 days can be suspended or probated
Fine 1000-5000
60 Days of community service
RR
Eval
Probation of 3 years less jail time

ANY SECOND OR SUBSEQUENT LIFETIME DUI CONVICTION RESULTS IN A RED STRIPE ON YOUR DRIVERS LICENSE (ADULT OR JUVENILE).

The FDA has requested that new warnings be placed on the labels of various prescription sleep medications.  The warning includes the risk of “sleep-driving.”  Yes, sleepdriving, just like sleep-walking and sleep-eating is one of the risks.  Here is an ABC news story about the risks of driving while taking Ambien.  It is estimated that 26 million prescriptions were written for the drug last year.  People that have any quantity of alcohol and then take a sleep aid are at greater risk for this occurance.  The people that this happens to are charged with DUI even thought they had no intent to drive and don’t even usually remember the driving or the encounter with police.

FDA Requests Label Change for All Sleep Disorder Drug Products

The U.S. Food and Drug Administration (FDA) has requested that all manufacturers of sedative-hypnotic drug products, a class of drugs used to induce and/or maintain sleep, strengthen their product labeling to include stronger language concerning potential risks. These risks include severe allergic reactions and complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.

The 58-year-old singer was arrested in December 2002 after she was seen driving the wrong way on a road in Tucson. She was found to be more than two times the “legal limit”, and pleaded no contest to a resulting charge.   She was allowed to enter her plea telephonically and did not have to return to Arizona for either that court appearance or to serve her sentence.  She was allowed to serve 48 hours at a jail in Greenwich, Connecticut.

Prosecutors in Tucson, Arizona, later fought to have the veteran star incarcerated again, claiming she was allowed to come and go as she pleased during her 48- hour stay at the Greenwich, Connecticut facility.  Arizona Magistrate T. Jay Cranshaw initially agreed that Ross had failed to serve her allotted time, saying she left jail three times and had been released an hour early. But Judge Cranshaw reconsidered his ruling after appeals by Ross’ lawyers.  In the end she escaped returning to jail again on the DUI charge after the judge ruled she had already completed her two-day sentence.