A seven-judge panel of the Georgia Court of Appeals has rejected a local judge’s ruling in favor of Jack Hughes , the Columbus youth who at age 17 caused a June 27, 2011, two-vehicle collision that killed Army medic Jerome Curtis Owens.
Issued Thursday, the 4-3 appeals court decision overturns Muscogee Superior Court Judge Gil McBride’s Feb. 27 ruling that police had no probable cause to test Hughes’ blood for intoxicants after the accident at Macon Road and Elm Drive, where at 5:19 a.m. Hughes’ eastbound Ford F-150 pickup truck ran a red light and T-boned Owens’ Nissan Altima.
After the initial impact, Hughes’ truck hit a utility pole, and the driver’s air bag deployed. He told police probing the wreck that he must have dozed off. He did not know he had hit Owens’ car, nor remember what color his traffic light had been, police said.
Officers could see Hughes was slow to answer questions and seemed unsteady on his feet, and his eyes were red. But they did not try to determine whether he was under the influence of drugs or alcohol until they arrested him for misdemeanor homicide by vehicle, based on his having run a red light. While searching him, they found pills in his pockets. Suspecting he was under the influence of drugs, they persuaded Hughes to submit to a blood test, which showed the presence of drugs and alcohol in his system. He subsequently was charged with five separate counts of felony homicide by vehicle.
His attorneys argued police had no probable cause for the blood test because they had not suspected Hughes was intoxicated until they found the pills. The signs of intoxication the officers said they noticed before finding the pills were the result of Hughes’ being battered and disoriented by the impact of the crash and the airbag that blew up in his face, his lawyers said.
Hughes also was sleep deprived, having had only a few hours' sleep over the past 24 hours.
McBride’s Feb. 27 ruling suppressing Hughes’ blood test was based partly on an appeals court precedent, State v. Gray, in which police charged a woman with DUI after 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 and crash into a concrete median.
Besides cuts on her face from the impact and air-bag explosion, she 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. Ruling in her favor, 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 precedent in his February decision, 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.”
Hughes’ case is not the same as Gray’s, the appeals court concluded:
“Here, the fact that Hughes had drugs in his possession was not the only credible evidence that he may have been driving while impaired. The undisputed evidence also showed that Hughes was incapable of driving his vehicle safely and that he exhibited manifestations consistent with being impaired. The fact that drugs were found in his possession put into context his disjointed demeanor, and the combination of these facts provided the officers with a reasonable basis for believing that Hughes was driving under the influence.”
Hughes’ attorneys have stressed the investigating officers never subjected Hughes to field-sobriety tests, and said that shows they didn’t suspect he was intoxicated before they found the pills. The appeals court dismissed that contention, writing, “the officers’ failure to conduct field sobriety testing in this case does not demand a finding that the officers lacked probable cause to request a blood test.”
The court should consider all that the officers observed before they sought the blood test, the majority wrote:
“Under the totality of the circumstances, when viewed objectively from the standpoint of the officers at the time, we find that the facts were sufficient to give the officers probable cause to upon which to request a blood test.”
The three judges who dissented said the majority improperly substituted its judgment for McBride’s, even though McBride was the “trier of fact” who heard testimony directly from the officers involved, and weighed their testimony against other evidence. Unless he made some obvious error, the appeals court should have deferred to his ruling, the dissenters said.
They cited this example: McBride at one point found an officer’s testimony questionable when the investigator said “he believed that Hughes was under the influence of mind-altering stimulants.” This was inconsistent because the officer also said Hughes appeared sleepy, and “stimulants would cause agitation,” the dissent said.
It added: “Rather than defer to the trial court’s resolution of the credibility issues raised in this case, the majority imposes a credibility determination not made by the trial court – that the officers were credible and, therefore, their testimony must be accepted as fact.... Viewing the evidence in the light most favorable to the trial court’s ruling, there is evidence to support the court’s conclusion that the police officers lacked probable cause.”
Hughes is represented by Carrollton attorney Allen Trapp, who specializes in DUI law. Trapp said he will ask the appeals court to reconsider, and should it decline, he will appeal to the Georgia Supreme Court.
Said Wesley Lambertus, the assistant district attorney who appealed McBride's decision: "Whatever they do, we'll be prepared."
Trapp said he agreed with the dissent’s view that judges in the majority should have deferred to McBride. “They should have deferred to the finder of fact, because he was able to hear it all, and noticed some discrepancies,” Trapp said. “I don’t think they deferred to the finder of fact. As the dissent points out, they just substituted their own opinion.”
Trapp reiterated what the defense long has claimed to be the origin of Hughes’ disorientation: The teen not only was battered by the impact of the crash, but suffering from sleep deprivation and dozing off.
The appeals court decision repeated some of that evidence, noting Hughes told police he had risen early the day before for baseball practice, played a game that ended at 11 a.m., and worked from noon to 4 p.m. Then he took a short nap before attending a party from 9 p.m. to 3 a.m., and slept in his truck in the Pacelli High School parking lot from 3 a.m. to 5 a.m. before heading east toward his home on Bondale Drive in Sears Woods.
After the crash, police searching him found that in socks stuffed in his pockets, Hughes had amphetamine, clonazepam and Trifluoromethylphenylpiperazine, a stimulant commonly abbreviated as TFMPP, police said. His blood tested positive for drugs and alcohol, and he told police alcohol was available at the get-together he'd attended the night before.
He faces 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 because the test showed a blood-alcohol content of .02 grams and he was too young legally to drink; 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.
If convicted of felony homicide by vehicle, Hughes faces a maximum of 15 years in prison, his attorney said.
Owens, a Valdosta, Ga., native who had been stationed at Fort Benning since July 2009 and twice had deployed to Iraq with the 3rd Heavy Brigade Combat Team, was 39 years old. He left behind a wife and two children.