How To Use Motions To Suppress Evidence In A DUI Case

One of the most valuable tools in a DUI lawyer’s toolkit is the pre-trial motion used to suppress evidence that could incriminate their client. This type of evidence often includes blood or breath test results, as well as the client’s driving history and prior convictions.[1] Strong grounds for seeking suppression arise when the evidence was obtained illegally or when its potential to prove guilt is outweighed by its potential to create bias. If the motion is successful, the suppressed evidence cannot be presented as part of the State’s main case against the defendant in a DUI case in Georgia.

However, even if the motion to suppress is granted, the risk posed by that evidence has not necessarily disappeared. The State possesses a powerful countermeasure known as impeachment. This legal tactic empowers the prosecutor to introduce exhibits or raise issues not as primary evidence, but solely to challenge certain aspects of the defendant’s testimony. Once accepted for impeachment purposes, this evidence can only be used to undermine the defendant’s credibility, not to establish their guilt.

When evidence, such as the outcome of a blood test administered by the State, is allowed for the purpose of impeaching a witness, it becomes irrelevant whether the evidence was suppressed due to being unlawfully obtained. The United States Supreme Court, through a set of decisions collectively referred to as the Walder-Harris doctrine, has established that unlawfully obtained evidence, which cannot be presented in the main case of the State, can be introduced in a limited manner to challenge a witness’s testimony. This doctrine, outlined in Walder v. United States, 347 U.S. 62 (1954), and Harris v. New York, 420 U.S. 714 (1975), reflects the Court’s cautious approach toward applying the exclusionary rule too broadly. The Court reasoned that the exclusionary rule serves as a deterrent against unconstitutional searches and seizures by law enforcement, rather than as a shield allowing a defendant to commit perjury without consequences. In the Walder case, the Court noted that the fact that evidence was illicitly obtained “does not justify enabling the defendant to resort to false testimony based on the Government’s inability to challenge his credibility.” 347 U.S. 62.

While this doctrine is expansive in terms of admissible impeachment evidence, it is limited in another aspect. In James v. Illinois, 493 U.S. 307 (1990), the Court ruled that, in a criminal proceeding, only the defendant’s own testimony can be impeached using unlawfully obtained evidence. Other witnesses for the defense cannot be subjected to this form of impeachment. Id.

Initially, under the Walder-Harris doctrine, the State was restricted to using unlawfully obtained evidence to impeach only the defendant’s testimony provided during direct examination. However, in United States v. Havens, 446 U.S. 620 (1980), the Court removed the requirement of direct examination, enabling the State to introduce unlawfully obtained evidence to challenge a defendant’s responses during cross-examination when the questions clearly relate to the defendant’s initial testimony. The scope of Havens is even broader in Georgia, where the boundaries of cross-examination need not be confined to those of direct examination, as established in State v. Jeridine, 137 Ga. App. 811, 224 S.E.2d 803 (1976). Essentially, external rebuttal evidence can be presented to challenge a defendant’s cross-examination testimony, even if the line of questioning does not strictly align with the original direct examination. This grants the State considerable latitude to explore subjects that were not addressed directly. In essence, the State appears to have the capability to open a door for itself, or at the very least, the right to knock on it.

Impeachment In Georgia

The Walder-Harris doctrine was integrated into Georgia’s case law through Jordan v. Ensley, 149 Ga. App. 67, 253 S.E.2d 414 (1979), and Knisely v. State, 155 Ga. App. 673, 272 S.E.2d 538 (1980), both of which involved DUI cases in Georgia (DUI in Georgia). In the Jordan case, the court emphasized that “although the test results couldn’t be used to demonstrate the appellee’s intoxication while driving, they could be admitted, with proper foundation, to support expert testimony showing that the appellee wasn’t telling the truth.” This principle is also codified in O.C.G.A. § 24-9-82, which states that “a witness’s testimony can be refuted by disproving the facts they testified about.”

Counteracting evidence introduced under O.C.G.A. § 24-9-82 is to be taken into account solely for the purpose of impeachment. Therefore, it is subject to a restraining instruction if requested by counsel (DUI Lawyer), as established in Askea v. State, 153 Ga. App. 849, 267 S.E.2d 279 (1980). However, it’s worth noting that juries may not fully grasp the distinction between substantive evidence and impeaching evidence, or if they do, they might disregard it. Consequently, it’s crucial for defense counsel to take appropriate measures to prevent the jury from considering such evidence, regardless of its purpose for being presented.

A vital point to remember about impeachment is that this legal strategy is only available after the DUI defense lawyer opens the door. O.C.G.A. § 24-9-20(b) states that “evidence of general bad character or prior convictions cannot be introduced unless and until the defendant has first brought up their character as an issue.” In interpreting this provision, courts have held that accidental remarks about character are insufficient to make character an issue. Johnson v. State, 261 Ga. 419, 405 S.E.2d 686, 688 (1991). See also Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988) (“A defendant doesn’t raise their general good character as an issue by mistake, but with intention…”). Furthermore, a witness cannot be impeached on a subject that’s not relevant to the trial’s issues, as seen in J.F. McKinney & Co. v. Darby, 56 Ga. App. 621, 193 S.E. 594 (1937). Additionally, if a defendant claims an inability to recall sufficiently to answer and does so in good faith, their statement cannot be impeached through contradictory evidence, as demonstrated in Waters v. State, 210 Ga. App. 305, 436 S.E. 2d 44 (1993) (discussed further below).

How the door is opened and how to prevent it from happening are key considerations. Previously suppressed evidence might be admitted if the defendant or defense counsel brings up (or even hints at) an issue connected to that evidence. This can transpire in various ways. Defense counsel might inadvertently raise the issue through poorly phrased questions of a witness during direct or cross-examination.[2] Alternatively, while testifying, the defendant might make a statement that touches on an issue previously off-limits to the State.[3]

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Regardless of how it occurs, once the defense opens the door, it seems that all constraints are lifted. The prosecution can undertake cross-examination focused on that issue. As long as the defendant’s answers don’t contradict what the suppressed evidence implies, the State must work with the responses provided. However, if the defendant’s testimony contradicts the implications of the suppressed evidence in any way, the State can introduce that evidence for impeachment purposes.

With the fundamental concept of impeachment explained, it’s helpful to delve into a selection of rulings from Georgia’s courts that deal with these matters. This provides a clearer understanding of how a defendant might be impeached and, ultimately, how to avoid such a situation.

Illegally Obtained Evidence

Drawing on the legal precedent set by the decisions in Jordan and Knisely, Georgia courts have shown a readiness to allow unlawfully obtained evidence for the specific purpose of impeachment in various DUI cases.

In Gregg v. State, 216 Ga. App. 135, 453 S.E.2d 499 (1995), the defendant faced a DUI arrest and underwent a breath test that yielded a result of .17 BAC. The defendant subsequently requested an independent blood test. While this blood test was being conducted, the arresting officer procured a sample of the defendant’s blood from the laboratory technician. This blood sample was then analyzed at the State Crime Lab, with the result showing the same .17 BAC. Despite being suppressed before trial and not presented as part of the State’s primary case, the outcome of the State’s breath test was admitted.

During the trial, defense counsel significantly undermined the credibility of the .17 breath test result by highlighting the defendant’s exposure to methyl ethyl ketone just before testing. However, due to this line of questioning, the prosecution was allowed to introduce the result of its analysis of the defendant’s blood taken during the independent test. The court ruled that this evidence was admissible not only to reinforce the State’s intoximeter test findings, but also to challenge any favorable inference that the defense expert’s testimony might have conveyed. This ruling could be seen as potentially conflicting with the principles established in James v. Illinois, 493 US 307 (199)(supra), as it was the defense theory that was undermined by the suppressed evidence, not the defendant’s testimony.

Regarding the fact that the arresting officer took a portion of the defendant’s blood drawn by the independent testing facility, the court observed that O.C.G.A. § 40-6-392 did not prohibit such action. This statute did not prevent a police officer from taking a portion of blood lawfully drawn during an independently requested test and sending it to the crime lab for subsequent analysis, either for control purposes or as potential rebuttal evidence.

In Shipman v. State, 221 Ga. App. 160, 471 S.E.2d 225 (1996), the defendant’s breath test results were suppressed prior to trial due to an invalid implied consent warning. During the trial, the defendant testified that he had not been impaired at any point on the night of his arrest and had consumed only 3 beers over a 3-hour period before the arrest. By testifying about his level of intoxication, the defendant inadvertently made way for the admission of the breath test result (.09) and the arresting officer’s testimony indicating outward signs of intoxication. These pieces of evidence were presented for the purpose of impeaching the defendant’s credibility.

In Charlton v. State, 217 Ga. App. 842, 459 S.E.2d 455 (1995), the defendant’s breath test results were suppressed due to a lack of proper implied consent warning. During the trial, the defendant claimed to have consumed only 4 beers on the night of the arrest. His expert, relying on this testimony, testified that given the quantity of alcohol consumed, the defendant’s blood alcohol content (BAC) could not have exceeded .05. In response, the State introduced its own expert, who testified that if the defendant’s claims were accurate, his BAC could not have been more than .01 or .02, in stark contrast to the .09 reading from the breathalyzer. Notably, in this instance, it was the defendant’s expert testimony that was contradicted by the unlawfully obtained breath test result. Although the evidence was brought in to challenge the testimony of the defendant’s expert and not the defendant’s own testimony, the defense expert’s testimony was based on that of the defendant. When the State’s expert relied on the breath test, which conflicted with the defendant’s statement, it consequently challenged the defense expert’s testimony. Thus, there was no violation akin to that described in James v. Illinois.

Prior Convictions

When evidence of prior convictions is excluded before trial, it’s because the trial judge has determined that such evidence doesn’t align with the guidelines of O.C.G.A. 24-2-2: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” This exclusion isn’t due to the evidence being unlawfully obtained, so the rules governing the exclusionary doctrine don’t apply.

Several Georgia cases have helped establish the boundaries for using prior convictions for impeachment purposes, even if initially considered too prejudicial. The court has ruled that “[testimony may be admissible for the purpose of impeaching the veracity of a witness even if it would be impermissible if offered for the purpose of impeaching the defendant’s character.” Martin v. State, 205 Ga. App. 591, 593, 422 S.E.2d 876 (1992).

In Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988), the court explained that incomplete candor might justify impeachment under certain circumstances:

If a defendant testifies and acknowledges prior criminal behavior, it doesn’t put his character ‘in issue’ under O.C.G.A. § 24-9-20(b). Instead, he has raised a matter that can be fully explored by the State during cross-examination. However, if the defendant claims to have committed only one crime, implying it’s his sole criminal record, his testimony can be contradicted by proof of other crimes he has committed.

In Warren v. State, 197 Ga. App. 23, 24, 397 S.E.2d 484 (1990), a defendant was ruled not to have opened the door when he “volunteered that he had two previous convictions for driving under the influence,” but didn’t suggest this comprised his entire criminal record. Additionally, making a passing reference to the defendant’s record doesn’t introduce his character into evidence. Johnson v. State, 256 Ga. 604, 351 S.E.2d 623 (1987).

Another restriction on the admissibility of prior convictions in Georgia is that nolo pleas can’t be used for impeachment. Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44 (1993); Rocco v. State, 191 Ga. App. 655, 382 S.E.2d 391 (1989). Lastly, “when a witness provides an unresponsive answer impacting the defendant’s character, it doesn’t put the defendant’s character in question under O.C.G.A. § 24-9-20(b).” Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988).

In Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987), the defendant was asked during direct examination whether he drove unsafely on the night of an accident. He responded, “[n]o sir, I been driving for 25 years and I ain’t never had no wrecks or nothing.” On cross-examination, the State focused on the “or nothing” part of his testimony, leading the defendant to admit to two prior DUI convictions and multiple speeding tickets. The court determined that by discussing his safe driving over the past 25 years and implying a clean driving record, the defendant opened the door for cross-examination on this topic. Had the defendant not admitted his prior convictions, the State might have been able to introduce his previous driving record for impeachment, following the Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988) precedent. Nonetheless, this testimony could be argued as an inadvertent statement, hence insufficient to make the defendant’s character an issue. Johnson v. State, 261 Ga. 419, 405 S.E.2d 686 (1991).

In Long v. State, 185 Ga. App. 277, 363 S.E.2d 807 (1987), the court permitted the State to present evidence of 2 prior DUI arrests to challenge the defendant’s testimony that he declined the breath test because he was unfamiliar with implied consent warnings and had never heard them before. Despite the defendant’s statement that he couldn’t recall if he had received implied consent warnings in his previous DUI arrests, the court held that his testimony about familiarity with the implied consent warning opened the door for cross-examination. Though the State’s attempt to impeach may not have been successful, there was no jury instruction to disregard the evidence. Essentially, the court seemed to endorse the State’s impeachment effort even if it wasn’t entirely effective. This seems contradictory to the ruling in McCarty v. State, 139 Ga. App. 101, 227 S.E.2d 898 (1976), where the court noted that evidence of prior arrests, confinement, or indictment can’t be admitted as evidence for impeachment purposes.

In Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986), the defendant stated during testimony that he always refrained from drinking more than one drink before driving. Realizing that he had inadvertently opened the door, he tried to limit his statement to the past year. Despite this partial retraction, the State was allowed to challenge his testimony with evidence of his prior DUI convictions. The defendant’s testimony was found to have triggered the opportunity for impeachment. It’s worth noting, however, that in Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44 (1993), the court held that the defendant had not created an opportunity for discussion about his previous driving record. This happened when he mentioned being pulled over 3 or 4 times in the past but quickly retracted his statement, indicating uncertainty about the number of times.

Since he hadn’t made a statement that could be contradicted, there was no valid reason to introduce evidence of his past driving record or convictions. In essence, the door hadn’t been opened.

A noteworthy point is that in 2005, a draconian statute (HB170) was enacted, allowing prosecutors to introduce the defendant’s reputation and character as evidence during trial if the defendant decides to testify.

Hypothetical Scenarios

A pre-trial motion to suppress evidence that could incriminate a client’s case is perhaps the most potent asset in a DUI lawyer’s defense arsenal. In DUI prosecutions, such evidence often involves blood, breath, or urine test results indicating the client’s Blood Alcohol Content (BAC) at the time of arrest, or the client’s previous DUI convictions. These two types of evidence can heavily sway a jury and have significant implications for your client. Successfully suppressing this evidence can significantly enhance the likelihood of an acquittal. However, inexperienced attorneys might inadvertently raise the issue by asking inappropriate questions.

As impeachment-related issues frequently emerge during trials, it’s essential to be adaptable. To assist in this regard, the following hypothetical scenarios are presented to foster a basic understanding of the consequences of creating opportunities for impeaching evidence on previously excluded evidence.

1. Defense counsel has successfully suppressed the state’s breath test results. While cross-examining the arresting officer, counsel asks about Officer McCrackin’s actions after arresting Moe. Officer McCrackin cheerfully responds that he administered a breath test. On redirect, the prosecutor seeks to reveal the results of the test. Is this permissible? The state will likely be allowed to question Officer McCrackin about the test results since defense counsel opened the door. To prevent such situations, it’s best to avoid open-ended questions during cross-examination.
2. During direct examination, defense counsel questions a defense witness, Willy, who was with Dan, the defendant arrested for DUI in Georgia. Willy is asked if, in his opinion, Dan was intoxicated during the arrest, to which Willy answers negatively. When asked how he knows this, Willy cites his observations of Dan’s drinking that night and their long acquaintance. On cross-examination, the prosecutor questions whether Willy has ever seen Dan drive while intoxicated. Can the prosecutor proceed with this line of questioning? Can Willy be impeached using evidence of Dan’s previous DUI conviction where Willy was also a witness? Because Willy opened the door by discussing his long relationship with Dan, the prosecutor can explore this relationship during cross-examination. Willy must answer the question. However, since Willy isn’t the defendant, his answers stand, and the prosecutor can’t impeach Willy’s testimony, even if it contradicts suppressed evidence.
3. During a DUI cross-examination, a prosecutor asks the defendant, Mrs. Robinson, if she is a good driver. Mrs. Robinson responds that she prefers to be driven. Has the state unintentionally opened the door? Assuming Mrs. Robinson’s driving record was suppressed before trial, can the prosecutor introduce evidence of her multiple traffic violations and past DUI convictions? The state’s question is likely inappropriate, as it probes a topic not yet raised by the defense. Essentially, the state is opening a door for itself. Moreover, under Georgia law, non-responsive answers on cross aren’t grounds for impeachment. Nonetheless, the trial judge might demand a responsive answer, enabling the state to potentially impeach her testimony based on her subsequent answer.
4. On cross-examination, the defendant claims he didn’t know the Alco-Sensor reading during the roadside test due to the officer’s refusal to inform him. Can the prosecutor present evidence from a video where the officer does disclose the numerical result of the breath test? This situation appears suitable for admitting suppressed evidence to impeach the defendant’s credibility. Refer to Shipman v. State, 221 Ga. App. 160, 471 S.E.2d 255 (1996).
5. During cross-examination of the arresting officer, the officer mentions that the alco-sensor yielded a positive reading for intoxication. Defense counsel then raises questions about the reliability of the alco-sensor and its responses to various alcohol quantities. On redirect, can the prosecutor ask the officer for the exact numerical readout from the alco-sensor? Yes, defense counsel’s questions have opened the door to evidence about the machine’s capacity for quantitative alcohol level measurement. This is illustrated in Price v. State, 222 Ga. App. 655, 475 S.E.2d (1996).
6. Before trial, breath test results are suppressed due to an inadequate implied consent warning. During trial, the defendant takes the stand, and his attorney queries, “How many beers did you drink the night of your arrest?” The defendant responds, “Four beers.” A defense expert attests that, considering the defendant’s testimony, he wouldn’t be considered a less safe driver. On cross-examination, the prosecutor aims to introduce the results of the Intoxilyzer 8000. Can this be done for impeachment purposes?

Answer: Yes. The client’s admission of consuming only 4 beers opens the door, allowing the Intoxilyzer 8000 results (alongside expert testimony) to demonstrate that he actually consumed more than 4 beers. This situation could have been avoided if the client had responded that he couldn’t recall.

Where evidence from a State-administered blood test is used for impeachment purposes, its admissibility isn’t affected by whether it was suppressed due to illegal acquisition. The Walder-Harris doctrine, established by the U.S. Supreme Court, permits illegally obtained evidence, inadmissible in the State’s main case, to be used solely for impeaching a witness’s testimony. This doctrine prevents the exclusionary rule from being used to enable perjury. The Court in Walder stressed that the fact that evidence was illegally obtained isn’t a reason to allow perjurious testimony to go unchallenged. Under this doctrine, initially, the State was only allowed to impeach a defendant’s direct examination testimony. However, in United States v. Havens, 446 U.S. 620 (1980), this limitation was removed, enabling the State to use illegally obtained evidence to impeach a defendant’s answers during cross-examination that relate to their direct examination.

It’s important to note other relevant cases such as Oregon v. Hass, 420 U.S. 714 (95 S. Ct. 1215, 43 L. Ed. 2d 570), and Charlton v. State, 217 Ga. App. 842, 459 S.E.2d 455 (1995).

This article concentrates on two common forms of impeachment and types of evidence often used to challenge a defendant’s testimony. (See Hypothetical 2 in [2]). (See Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987), and Long v. State, 185 Ga. App. 277, 363 S.E.2d 807 (1987), infra).