Prosecutor to appeal judge's ruling quashing blood test in vehicular homicide case

tchitwood@ledger-enquirer.comFebruary 27, 2013 

UPDATE (Thursday): The prosecutor in Jack Hughes' vehicular homicide case filed notice he will appeal Muscogee Superior Court Judge Gil McBride’s Wednesday ruling that police had no probable cause to test Hughes' blood after the June 27, 2011 crash that killed Army medic Jerome Curtis Owens.

Assistant District Attorney Wesley Lambertus filed the appeal notice Thursday afternoon.

Allen Trapp, a Hughes defense attorney who specializes in cases of driving under the influence, said he and Columbus attorney Richard Hagler expected an appeal and are prepared to defend McBride’s ruling:

“We fully expect that, but we also expect the Court of Appeals to uphold Judge McBride’s decision,” Trapp wrote in an email. “It is well reasoned, well written, and fully supported by the facts.”

The Georgia Court of Appeals rendered the precedent upon which McBride based much of his reasoning in his decision to suppress Hughes’ blood test that showed the presence of alcohol and three different drugs police say they found in Hughes’ pockets after the fatal collision.

That precedent was State v. Gray, in which police charged a woman in a one-car accident with DUI because she smelled of alcohol and admitted drinking. She told police another car had forced her off the road and into the guardrail, which made her swerve across the road and crash into a concrete median.

Besides cuts on her face from the impact and air-bag explosion, the woman was unsteady on her feet, her eyes were bloodshot, and she looked dazed. Police gave her an alco-sensor test that detected alcohol, then took her into custody and gave her a breath test, the results of which she later moved to quash.

She won. The Georgia Court of Appeals decided all the officer had to go on for probable cause was the smell of alcohol, her admitting drinking, and the alco-sensor test. That was not enough to justify the arrest and later breath test, they said, because merely consuming alcohol does not by itself make a driver unsafe:

“Because none of these factors addressed whether Gray’s intoxication impaired her so that she was rendered a less safe driver, the court concluded that no probable cause supported the arrest,” the appeals court ruled.

After citing that case in his Wednesday ruling, McBride wrote:

“If the mere presence of alcohol inside a person’s body does not furnish probable cause for a DUI arrest as held by the appellate courts of this state, the mere presence of drugs in the defendant’s pockets must also fall short. Accordingly, this court finds that defendant’s manifestations were consistent with the after-effects of an automobile collision where an airbag deployed and concludes that these manifestations did not provide the officers with probable cause….”

HERE is the initial report on McBride's ruling, posted Wednesday:

Muscogee Superior Court Judge Gil McBride has ruled police had no probable cause to blood-test then-17-year-old Jack Lynch Hughes after the June 27, 2011, collision that fatally injured Army medic Jerome Curtis Owens at Macon Road and Elm Drive.

Had investigators not found pills in Hughes’ pockets while arresting him at the accident site, they would have had no reason to suspect he was intoxicated, McBride wrote.

Hughes was indicted on five counts of 1st degree homicide by vehicle — the first alleging his driving was unsafe because he was under the combined influence of alcohol, amphetamine and clonazepam; the second based on driving under the influence of alcohol; the third based on the amphetamine in his blood; the fourth on the clonazepam; and the fifth on reckless driving for running a red light while under the influence.

He was indicted also for three counts of drug possession based on the search.

Assistant District Attorney Wesley Lambertus, who’s prosecuting Hughes, said Thursday that he will appeal McBride's ruling. The ruling primarily affects the alcohol charge based on the blood test, he said, and the prosecution still could pursue the other charges based on the police officers' description of Hughes' apparent disorientation.

Were suppressing the blood test to cripple all the felony first-degree vehicular homicide charges Hughes faces, it could leave only a misdemeanor second-degree homicide by vehicle charge based on his running a red light. The maximum penalty for the felonies would be 15 years in prison. For the misdemeanor it’s up to a year in jail.

During a Dec. 5 hearing on Hughes’ defense motion to suppress the blood test, officers probing the crash testified they noticed before finding the pills that Hughes had glassy, red eyes, seemed unsteady on his feet and was slow to answer questions.

But they did not initiate an investigation into whether he was under the influence until they found the drugs.

“This court is cognizant of the fact that the officers testified that defendant Hughes had glassy eyes with some redness and may have been unsteady on his feet. However, the decision not to conduct any field sobriety tests or otherwise investigate a possible DUI charge prior to the discovery of the pills supports a finding that the officers did not suspect that defendant was driving under the influence of any intoxicant beforehand,” McBride wrote in his ruling issued Wednesday afternoon.

Hughes’ attorneys claimed the behavior the officers noticed was the result of Hughes’ having just been involved in a collision that caused the airbag in his Ford F-150 pickup to explode in his face. Also he suffered from a lack of sleep, they said. Hughes told officers he must have been “trying to fall asleep” when his truck T-boned Owens’ Nissan Altima.

While arresting Hughes for misdemeanor vehicular homicide based on his running a red light, police found that in socks stuffed in his pockets, Hughes had amphetamine, clonazepam and Trifluoromethylphenylpiperazine, a stimulant commonly abbreviated as TFMPP, officers testified.

Hughes then consented to a blood test, which showed the presence of those drugs and a blood-alcohol content of .02 grams, enough to warrant charges for someone too young legally to drink, authorities said.

Among the court precedents McBride’s ruling cited was State v. Gray, in which police charged a woman with DUI in a one-car accident because she smelled of alcohol and admitted drinking. She told police another car had forced her off the road and into the guardrail, which made her swerve across the road and crash into a concrete median.

Besides cuts on her face from the impact and air-bag explosion, the woman was unsteady on her feet, her eyes were bloodshot, and she looked dazed.

Police gave her an alco-sensor test that detected alcohol, then took her into custody and gave her a breath test, the results of which she later moved to quash.

She won: The Georgia Court of Appeals decided all the officer had to go on for probable cause was the smell of alcohol, her admitting drinking, and the alco-sensor test. That was not enough to justify the arrest and later breath test, they said, because merely consuming alcohol does not by itself make a driver unsafe: “Because none of these factors addressed whether Gray’s intoxication impaired her so that she was rendered a less safe driver, the court concluded that no probable cause supported the arrest,” the appeals court ruled.

After citing that case in his ruling, McBride wrote:

“If the mere presence of alcohol inside a person’s body does not furnish probable cause for a DUI arrest as held by the appellate courts of this state, the mere presence of drugs in the defendant’s pockets must also fall short. Accordingly, this court finds that defendant’s manifestations were consistent with the after-effects of an automobile collision where an airbag deployed and concludes that these manifestations did not provide the officers with probable cause….”

Police said the 5:30 a.m. wreck resulted from Owens’ making a left turn west onto Macon from Elm under a green arrow. Hughes had a red light when his eastbound truck T-boned the Altima at the driver’s door.

Owens, a Valdosta, Ga., native stationed here since July 2009 and twice deployed to Iraq with the 3rd Heavy Brigade Combat Team, was rushed to the hospital and pronounced dead there.

Neither the Owens nor the Hughes family has commented on the court case.

These are the past stories the Ledger-Enquirer has published:

June 27, 2011: Fort Benning soldier dies in wreck: Click here.

June 28, 2011: Teen accused of vehicular homicide makes bond: Click here.

June 29, 2011: Family of Sgt. Jerome C. Owens releases statement: Click here.

Feb. 29, 2012: Jack Hughes indicted for vehicular homicide of combat medic: Click here.

Feb. 9, 2013: Lawyers say police had no probable cause to drug-test Jack Hughes: Click here.

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