Lawyers say police had no probable cause to drug-test Jack Hughes

Around 5 a.m. Monday, June 27, 2011, Jack Hughes had just 3 miles to drive from Pacelli High School to his home on Bondale Drive in Sears Woods.

According to court records, he had not slept much. The 17-year-old that Sunday night had been to a sleepover where alcohol was served. He had argued with his girlfriend there and left, driving his 1998 Ford F-150 pickup truck to St. Anne-Pacelli Catholic School, off Macon Road at Forrest Road, where he had parked in the school lot and tried to get some sleep.

After a friend came by to talk to him, Hughes decided to head home, cutting over to Macon Road and going east toward Sears Woods.

Jerome Curtis Owens was a 39-year-old Army medic with a wife and two children. He lived on Japonica Drive, off Macon Road near Elm Drive. Leaving for work at Fort Benning in his 2002 Nissan Altima that Monday, the staff sergeant cut over to Elm from Japonica and turned north toward the traffic light at Elm Drive and Macon Road.

It was about 5:15 a.m.

Fatal collision

According to police, Owens had a green arrow to make a left turn west onto Macon from Elm. Hughes had a red light when his truck reached the intersection in Macon Road's left, eastbound lane.

Owens started across Macon Road, and Hughes' pickup did not slow down as it T-boned the Altima at the driver's side door, police said. The impact sent both vehicles out of control, so they came to rest near a Chevron station on Macon Road's north side, at University Avenue, investigators said.

That is how Owens, a Valdosta, Ga., native stationed here since July 2009 and twice deployed to Iraq with the 3rd Heavy Brigade Combat Team, was killed just blocks from his Columbus home.

But it was what happened next that now could determine whether the felony vehicular homicide charges Hughes faces will be gutted by his defense attorneys' motion to suppress a blood test police got from the Pacelli baseball player.

That test found alcohol and other drugs in Hughes' blood, according to court records. Without that evidence, he could face only a misdemeanor charge of homicide by vehicle, not the five felony counts on which he last year was indicted.

Hughes today is an 18-year-old freshman at Chattahoochee Valley Community College. According to family, he was not permitted to enroll at Pacelli or any other high school for the 2011-2012 school year but completed his senior year through an independent home study program offered through St. Anne Church and the Catholic Diocese of Savannah. His family did not make further comment or agree to be interviewed for this story.

Owens was laid to rest with full military honors on July 2, 2011, according to the Valdosta Daily Times. He had served in Iraq, Bosnia and Korea. Survivors included his wife, Natieba Stewart Owens, and children Marquis and Rheanna.

Owens' family did not respond to an interview request.

The aftermath

Officers arriving on the wreck scene at 5:19 a.m. that day saw Owens' injuries were critical. As an ambulance rushed him to the hospital, they summoned the motor patrol unit that investigates traffic fatalities.

According to court records, Hughes told officers he must have dozed off. He didn't know what color his traffic light had been. He didn't know until after the impact that he had hit another automobile.

According to a brief filed Jan. 2 by Assistant District Attorney Wesley Lambertus, who's prosecuting Hughes, officers questioning the teenager noticed his eyes were red and glassy, his pupils were dilated, he swayed back and forth and from side to side, appeared half-asleep, "spaced out," and was slow to answer questions.

Investigators decided to charge him with misdemeanor 2nd degree vehicular homicide, based on his traffic violation of running a red light. As is standard for placing someone in custody, they read him his Miranda rights and searched him.

In socks stuffed in his pockets, Hughes had amphetamine, clonazepam and Trifluoromethylphenylpiperazine, a stimulant commonly abbreviated as TFMPP, police said.

Police Cpl. Timothy Green then read Georgia's implied consent warning to Hughes. In part, it states:

"Georgia law requires you to submit to state-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial."

Hughes agreed to let police test his blood. The test showed the presence of drugs and alcohol, according to court records, and he already had told police that alcohol was available at the get-together he'd attended the night before.

The charges

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 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, said his Carrollton, Ga., attorney Allen Trapp, who specializes in DUI defense. Columbus attorney Richard Hagler also represents Hughes.

If his attorneys successfully persuade Muscogee Superior Court Judge Gil McBride to suppress the blood test, Hughes' only homicide charge could be second degree homicide by vehicle, a misdemeanor with up to a year in jail. That would be based solely on his causing Owens' death by running a red light.

McBride heard arguments Dec. 5. He has yet to rule.

Probable cause

In their motion, Trapp and Hagler argue police had no probable cause to investigate Hughes' driving under the influence: The officers decided to invoke the implied consent law only after finding the pills, and until then initiated none of the roadside tests used to determine whether a driver is intoxicated -- an indication that they had no suspicion until they searched Hughes.

Defense attorneys maintain the signs of intoxication police later described -- Hughes' swaying, red eyes and delayed responses to questions -- were to be expected from a teenager who was exhausted from lack of sleep and stunned from the impact, which included an air bag exploding in his face.

Citing police testimony from the Dec. 5 hearing, defense attorneys wrote:

"After talking with Officer Dustin Allen, the defendant also told Cpl. Green that the day before had been a 'long day.' He recounted arising early for batting practice, a game in the morning, work in the afternoon, followed by a quick nap, dinner with his family, and an evening out with friends. Apparently he and some other teenagers were having a 'sleep over' when he and his girlfriend argued. He left the house and went to sleep in the parking lot at his high school. A friend came to speak with him and he decided to head home."

Hughes had driven just half a mile when he crashed into Owens' car.

His attorneys do not deny the crash was caused by Hughes' running a red light, but all the signs of intoxication police reported resulted from the impact, they argued, writing: "All of the symptoms allegedly observed by the police were to be expected from a 17-year-old who has just lived through a crash with a fatality, struck a utility pole, and been smashed in the face by an exploding air bag. In fact, none of the police offered any explanation for not believing his symptoms were consistent with the accident, and not only did they fail to perform any field sobriety tests to determine, and did not attempt to explain, how they could distinguish Jack's being dazed and unsteady on his feet due to to the crash as opposed to Jack's being impaired by mood-altering drugs."

Trapp, who has won cases before the Georgia Supreme Court and Georgia Court of Appeals, said Friday the courts more than once have said police must have probable cause to initiate a DUI arrest and search. A mere suspicion is not enough.

The precedents

As the Georgia Court of Appeals decided in the 2003 case Malone v. State, probable cause for a DUI arrest requires the officer "have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely."

In the 2004 appeals court case State v. Gray, an officer coming upon a one-car freeway accident noticed the driver smelled of alcohol, and she admitted drinking. She told him another car 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.

He 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 judges 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...."

In his reply to Hughes' defense motion, Lambertus took State v. Gray and turned it around, arguing that having noted Hughes' signs of impairment during questioning, police here had much more evidence for probable cause than the officer had in Gray's case.

Trapp and Hagler countered that no, the officers had less: "None of the officers present testified that they suspected Mr. Hughes was under the influence of alcohol, nor did any of them even mention the odor of alcohol. Each of the manifestations cited by the state is consistent with surviving a severe accident, but upon discovery of the pills Cpl. Green quickly 'concluded' that the defendant must be under the influence of stimulants."

Drivers get caught with illegal drugs all the time, and never on that evidence alone are they subjected to tests to determine whether they're driving under the influence, the defense argued: "They are not because the mere discovery of drugs, particularly when tightly packaged as in this case, simply does not provide probable cause for a DUI arrest or the invocation of the implied consent statute."

Going to trial

In a telephone interview Friday, Trapp said police had nothing to go on until they found the pills: "Nothing plus nothing equals nothing, and merely discovering that doesn't give you probable cause, or you'd arrest every single person on the highway who's charged with a drug offense -- you'd arrest them for DUI, too," he said.

Hagler and Trapp said their motion to suppress Hughes' drug test does not mean they concede other aspects of the case. This is an initial step, and more may follow, they said.

They expect the case to go to trial.

CORRECTIONThis story was corrected at 1 p.m. Sunday to reflect that Hughes did not return to St. Anne-Pacelli after the wreck, but finished his senior year through a home study course and is now enrolled at Chattahoochee Valley Community College.

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