On June 29, 2009 the Court of Appeals of Georgia issued a new GA DUI opinion in the case of Epps v. State. This is a good read if you are cheering for the defense.
The facts (sneak preview... it's looking good for Ms. Epps):
After a bench trial, Miranda Epps was convicted of driving under the influence of alcohol to the extent it was less safe for her to drive and DUI per se. The trial court merged the less safe conviction and sentenced Epps on the per se count to 12 months probation, a $500 fine, 40 hours of community service, and gave her credit for the one day she spent incarcerated. On appeal, Epps challenges the denial of her motion to suppress, arguing that the state did not prove that it complied with the implied consent notice requirements. We agree with Epps and reverse.
Because the issue herein turns on whether the trial court committed an error of law in denying the motion to suppress, we apply the de novo standard of review. The record shows that Epps was involved in a one-vehicle accident wherein her vehicle made contact with a utility pole. Officer Ernest Clayborn of the Clayton County Police Department testified that when he arrived at the scene and encountered Epps, he noticed a strong odor of alcohol emanating from Epps's person; that Epps's ankle was injured; that he allowed E.M.S. to treat Epps; and that Epps was air lifted to Atlanta Medical Center. Clayborn drove to the hospital to meet Epps. Clayborn recalled that as soon as he made contact with Epps, he read the implied consent warning to her, asked her if she would allow the testing of her blood, and informed her that she was under arrest for DUI.
The next witness to testify was Julie Wilson, the nurse who drew Epps's blood. Wilson testified that she heard Clayborn read the implied consent warning to Epps and that she never draws blood without the implied consent being read. Epps testified that Clayborn did not read her the implied consent warning. The trial court denied the motion to suppress.
At the bench trial, the parties stipulated that the testimony from the suppression hearing was the same as that which would be elicited at trial and that Epps's blood alcohol content was .10. Defense counsel stipulated that the evidence would be sufficient to find Epps guilty but for the fact that the test results should have been excluded. The court found Epps guilty of both offenses.
The defense wins one:
On appeal, Epps argues that the trial court erred by denying the motion to suppress for two reasons: (1) there was no evidence of what was read to her; and alternatively (2) even if the implied consent rights were read to her, they were read before she was arrested in violation of Georgia law. Because the state did not demonstrate that it met the implied consent notice requirements, we reverse.
Here's what the judge should have done:
Therefore, the trial court should have granted Epps's motion to suppress the blood test results, and its denial of the motion constitutes error.
In the absence of the blood test results, there is no competent evidence that Epps had "an alcohol concentration of 0.08 grams or more at a time within three hours after driving and being in actual physical control of a moving vehicle, said alcohol having been consumed prior to such driving," as charged in the accusation. Accordingly, Epps's conviction for driving under the influence per se must be reversed due to insufficient evidence. Since Epps' conviction for driving less safe was merged into this charge for sentencing purposes, we remand the case to the trial court for re-sentencing so that Epps can be sentenced on the merged offense.
The take home message: Just because a lot of people testify against you, and just because the judge and the prosecutor think you are guilty, and just because some players in the justice system want to do everything possible to make sure that you get your DUI conviction doesn't mean that they are right.
However, this case is a good example of why you need an aggressive and very competent DUI defense lawyer helping you at every step of your case.
For a trip down memory lane with Georgia DUI appellate case law, see:
Georgia DUI Case about general demurrer
Georgia DUI Law: February 18, 2009 Decision
