# 1: Basic Factual Background of Case

• Δ, Ga Tech Grad; 2nd DUI arrest in 5 years, but this time killed pedestrian who was crossing street in Buckhead bar district

• Pedestrian was 0.319 blood alcohol; birthday• Pedestrian walked directly off curb mid-block

in a driving rainstorm, dark clothing, dark hat• Neither Δ nor passenger saw man until

windshield cracked (circular hole)• Δ thought hit by brick, kept driving, Hit & Run

The Value of Getting the Case Early

• Started at City Court of Atlanta – Jury Trial Court for Misdemeanors – Statutory Speedy Trial Demand

• After Prosecutor saw file, learned of man’s death, bound over to Fulton Superior Court

• Felony Charges Brought, Bond set at $40,000• When Trial Started, I asserted Motion for

Discharge & Acquittal• Motion Denied; Immediate Direct Appeal

Outcome – Partial Win, then Total

• Court of Appeals struck down all but 1 felony charge, which DA had alleged as VH by combination of DUI (0.154) and Hit & Run

• Filed Motion alleging Collateral Estoppel, arguing that BOTH DUI AND Hit & Run were “acquitted”; therefore, no FELONY can be “supported by” charges that acquittal granted

• Client walked away from all charges

#2: VH and Vehicular Feticide w/ 0.31

• Did not get case until 18 months after incident happened; referred by original attorney

• Tried to file NEW motions, but other attorney had already filed (and lost) certain motions – Judge denied a “second round” of motions

• All physical evidence had been destroyed or lost, including Δ blood and the damaged F-250 pickup truck – could not have experts test it

Blood Should Have Been Excluded

• Factually, 9 witnesses starting at 9 AM until 10 minutes before wreck (just before 6 PM)

• Registered Nurse: “If that is how the vials were marked, not the blood I drew” – ALWAYS marked the same for my 24 years (0.31)

• Change of Venue NOT Granted, Small Community, Top News Story of Year

• Judge even met with Attorneys: “I’m sorry”

“Victory?” – Saved 6 Years of Prison

• Best Offer to original attorney: 30 serve 10• Judge (after our 2 week trial): 30 serve 4• This type offense, offender must serve 90% or

more of the actual sentence• Appeal did not overturn the conviction,

despite all the errors – 248 Ga.App. 551• Judge was vilified in local weekly newspaper,

but the people complaining did not see trial

#3: Pedestrian Killed – SUV Kept Going

• Male former UGA student, youngest of 8 children, age 23 at time of incident

• Was in Atlanta, watching GA-FLA game on TV with friends – supposed to STAY with friend

• Later drove, for some unexplained reason, into downtown Atlanta, opposite home path

• African-American female walking across downtown street, run over by SUV

Cops Got “911” Calls & Swarmed Area

• SUV was stopped about 20 minutes later, going in DIFFERENT direction and +/- 2 miles away from Death Scene

• “BOLO” (be-on-the-lookout) call was incorrect in three SIGNIFICANT ways and NO TAG INFO

• Officer: would have stopped ANY similar SUV• Client had 0.23 Blood from GBI Report – due

to high reading, GBI never checked for any drugs (marijuana was in blood sample)

The Value of a Motion to Suppress

• Motion alleged violation of Fourth Amendment – Illegal Search and Seizure

• In this motion, burden is on the Prosecution• Issues are heard pre-trial, and often done

weeks or months before jurors are ever summoned to assembly for selection

• 1994 Ga Supreme Ct case – Vansant v. State• Search declared illegal; evidence suppressed

#4: Best Friend Killed in Rollover

• 30-year old car sales person, from Florida• Passenger also in car sales; had been friend 20

years; both had move from FL to ATL area• Had gone to friend’s house in Forsyth County

for “housewarming” party – never been there before; unfamiliar with roadways

• Δ driving Hertz Rental car he had rented in FL• Rural roadway, just before 4 AM

Facts of Case are Too Familiar

• First attorneys had case for over 2 full years• First attorneys had done cursory investigation,

filed one targeted motion attacked one issue• First attorneys suggested Δ accept DA’s 15

year sentence offer, with first 7 in State prison• In the first 8 court appearances, attorneys: 1• Case was already SET FOR TRIAL when Δ first

came to see me to discuss his dissatisfaction

Simultaneous Calls: “911” and from Δ

• Nearby female resident hears tremendous crash of vehicle, multiple points of contact

• Δ explanation to “911”: “Deer Crossing Road”• Good comes in with the Bad: Admissions

against Interest – Will it sway the Jury?• Death/serious injury “team” was deficient• Timeline Did Not Match Up, but Little Time to

Reconstruct the REAL Timeline

Key Facts of Case

• DA never called any witness from the party• Defendant never testified• Blood test (0.142) should NOT have been in

evidence, but judge REFUSED to allow me to revisit motions that first attorneys missed

• 1st Responder – County Fireman (EMT) – “No smell of alcohol” – 1st Cop - “I smelled it”

• Passenger – No Seat Belt, Δ was buckled in

The Most Interesting Witness in Case

• Retired Truck Driver, who lived here in Forsyth County whole life ; over 70 years old

• Not home the night of accident; mule contest• Our investigator, Betty, located him via a Door-

to-Door Investigation of all homes in vicinity• Stated that this was the 5th person to die in this

curve; very familiar with each case• Confirmed Deer Population “Terrible”; Growth• County Had Bought His Land to Straighten Curve

911 Call

Verdict: Split Decision on GA-FL Day

• VH by DUI – NOT VH – Test ≥0.08 - GUILTY• VH by reckless – GUILTY• DUI – GUILTY Per Se DUI (by ≥0.08) (Dir. Ver.)• Reckless – NOT• Driving while suspended - GUILTY• Sentencing – 15, to serve 5 in State Prison• Other Misdemeanors, “concurrent” (not

stacked on end of sentence for FELONY)

Since Trial Date- What has Occurred

• Δ is jailed, being shifted from place to place• Motion in Arrest of Judgment – DENIED• Motion for Bond During Appeal - DENIED• Motion for New Trial – Being Filed Today• If Δ had entered Guilty Plea to DA’s offer of

15, serve 7, no real chance to appeal this• If Client wins Appeal, can’t get back the time

her served; if loses, saves 2 years in prison

TAKEAWAYS

• Vehicular Felony is an UNINTENTIONAL Crime• Situation can Change from Fun to Prison in an

INSTANT – What is in YOUR Bloodstream?• Time is of the ESSENCE after Serious Accident• Choose Attorney in Same Manner You Would

Choose a Surgeon if Diagnosed with Malignant Tumor – Only 1 Shot at Removing the Tumor

• Explore Every Possible Fact, Claim & “Angle”

The Value of Seatbelts