Gwinnett County solicitor sues Recorder’s Court judges over DUI cases

Gwinnett’s solicitor general, Brian Whiteside, peaks into a courtroom at the Gwinnett Justice and Administration Center in Lawrenceville on Friday October 11th, 2019. (Photo by Phil Skinner) AJC FILE PHOTO
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Gwinnett’s solicitor general, Brian Whiteside, peaks into a courtroom at the Gwinnett Justice and Administration Center in Lawrenceville on Friday October 11th, 2019. (Photo by Phil Skinner) AJC FILE PHOTO

Gwinnett County Solicitor Brian Whiteside on Wednesday filed suit against two county judges, saying they were stopping him from moving drunken driving cases into another court.

Whiteside announced last month that he intended to only prosecute DUI cases in Gwinnett State Court, not the county Recorder’s Court where they have traditionally been heard.

The decision was made, he said, because the Recorder’s Court — which handles traffic citations and code enforcement cases — is not a court of record, meaning court reporters are not always present. Additionally, cases heard there can only be appealed to the Gwinnett County Superior Court, while State Court cases can be appealed outside the county.

Whiteside said in a statement that decisions regarding DUI cases are “so impactful” they should have other avenues for appeal.

In the lawsuit, he said the Recorder’s Court judges were stymieing his efforts.

But Kimberly Dymecki, president of the Georgia Association of Criminal Defense Lawyers and a Gwinnett County attorney, said Whiteside’s rationale is flawed.

“It makes him appear as if he’s concerned about the rights of defendants,” she said. “Defendants have their own attorneys representing their rights. This petition isn’t protecting the rights of people who are accused of crimes.”

Dymecki said state law gives defendants the opportunity to ask cases to be moved from Recorder’s Court to a higher court, but not prosecutors. She said if Whiteside moved all DUI cases to State Court, as he intends, it would overwhelm a court system that’s already backlogged because of the pandemic.

She called the writ of mandamus Whiteside filed “pretty extreme.”

“It appears to me this stems from the prosecutor not wanting certain cases to be heard by judges in Recorder’s Court,” she said. “It’s not the appropriate vehicle to get what he wants.”

Jeff West, the clerk of Recorder’s Court, said such cases were not commonplace.

He said the Recorder’s Court functions to rapidly move through cases. Judges Kathrine Armstrong and Wesley Person, who were named in the lawsuit, would not talk about it, West said.

No one in the county law department returned a call seeking comment on the case.

In the suit, Whiteside said Armstrong and Person are continuing to conduct hearings and issue rulings on DUI cases, and have refused to sign documentation that would move the matters to State Court.

“This is really something that’s unbelievable to me,” he said.

The lawsuit says 30 requests to transfer cases to State Court had not been signed; West could not confirm that number.

He did say that of 748 DUI cases so far in 2021, 267 had been sent to State Court, 35% of all cases. In 2020, 40% of DUI cases were sent to State Court, while that number was 38% in 2019 and 35% in 2018.

Whiteside said he would still let people plead guilty or nolo contendere to DUI charges in Recorder’s Court. But Christine Koehler, a Gwinnett criminal defense attorney, said that would punish people who wanted to contest the charges.

Not only that, she said, but moving these cases to State Court would delay other cases that are waiting to move forward there. She said at least two lawyers had asked their clients’ cases stay in Recorder’s Court, where they would be heard more quickly.

The case was “not appropriate,” Koehler said.

“This is like a judge recusal motion on steroids,” Koehler said. “This is essentially a lawsuit saying, ‘You’re not doing your job and another judge has to tell you what to do.’”