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Case Results

Uncommunicative Officer Unappears

August 2022

In a case originating out of Cobb County, Georgia, my client had their license retained by the arresting police officer for allegedly refusing to provide a sample of their breath, blood or urine to the State for use in prosecution against them on a DUI. As my client had retained me right away, I immediately reached out to the arresting officer to see if he'd agree to rescind the 1205 form (what Georgia calls the petition to suspend a DUI arrestee's license), but he was non-committal. The reason I reached out to the arresting officer was so my client, given the time available, could decide whether to (1) appeal the suspension petition (1205) and then get a consent withdraw and dismissal without agreeing to plead to any particular charge, or (2) have an ignition interlock device put in his car and not risk either (a) a year-long suspension or (b) being leveraged into a plea he didn't want to take. In these situations, the arresting officer holds the gun and all the bullets. But, with enough of a heads-up, most of my clients can avoid the most severe consequences of not taking the State breath, blood or urine test.

In this instance, without further communication from the officer, my client decided to roll the dice and appeal the 1205, unsure of what the officer's intent was. Further attempts to communicate with the police officer were to no avail. So, as the hearing date approached, without discovery or an answer to my open records request, I filed a motion for a continuance. I hadn't yet even had a chance to see the bodycam or dashcam videos from the night of my client's arrest, or any other potentially important evidence. But, the Administrative Law Judge (ALJ)  never ruled on my motion (issuing an order granting the continuance is usually perfunctory) and the hearing remained on the calendar. Having no idea if the officer was committed to this case or not, I attended the hearing on my client's behalf. My clients generally do not appear in these matters. The officer was not present. I suspected he wouldn't show, but I wasn't 100% positive. Had he appeared, I'd have let the ALJ know I made a motion for a continuance, and that I tried to communicate with the officer several times beforehand. I have the receipts! But no worries.

Now, it would have been nice if the arresting officer had just said he wasn't going to appear at the Administrative License Suspension (ALS) hearing, and in that case, we could have submitted a consent withdraw of the 1205. I would have then saved myself an early morning trip from Marietta, Georgia down to the Atlanta Office of State Administrative Hearings (OSAH). Oh, well. That's how it goes sometimes. The officer works hard, pulling a graveyard shift, and I hope he got some good sleep. And when the time comes, he'll need to be rested before we get down to substantive, evidentiary hearings on my client's actual case! I've just begun to fight.

Practice area(s): DUI / DWI

Court: Office of State Administrative Hearings

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