Lisabeth’s case is egregious but not unique, said Kenneth Beck, director of the University of Maryland Driving Under the Influence Institute, which offers DUI enforcement training.
“We have seen cases like this before. Thank God this gentleman is in jail now to prevent him from at least having access to a vehicle,” Beck said. “There needs to be an increased level of enforcement, an increased level of prosecutorial vigor and an increased level of adjudication by the judges.”
Search warrant policies vary
Police and court records paint a vivid picture of the day in 2013 when Lisabeth wrecked his red Chevrolet S-10 pickup truck near the IKEA furniture store in Midtown. He rear-ended a teenager who was stopped at a red traffic light in the afternoon that day.
Ryan Dobler, the Atlanta police officer who responded, said he found Lisabeth slumped over his steering wheel. Dobler said he poked Lisabeth on the shoulder to wake him up. When Lisabeth responded, Dobler said, his eyes were “glazed over,” his pupils were small, his speech was slurred and he kept scratching his nose. Dobler said Lisabeth told him he was running late for drug counseling.
The ambulance crew said Lisabeth’s blood pressure was high and that — based on his slow speech — he appeared to be on some type of narcotic, according to Dobler’s incident report. In that same report, Dobler said he asked Lisabeth whether he was on a narcotic. His report doesn’t reflect a yes or no answer from Lisabeth, who instead said he was scratching his nose because he was hot and sweating.
Dobler testified that he did not ask Lisabeth to submit to any standardized field sobriety tests — such as standing on one leg — because he was concerned Lisabeth was overdosing. But his department’s policies list several alternative sobriety tests that should be done under that scenario, including reciting a portion of the alphabet. Further, after he was arrested and taken to jail, Lisabeth refused to submit to a blood test to determine if he had been driving on drugs.
The Atlanta Police Department did not make Dobler available for an interview, so it is unknown why he did not seek a search warrant to get a blood sample from Lisabeth. An Atlanta police spokesman pointed to his department’s policy, which makes seeking such a search warrant optional.
In contrast, Gwinnett County’s policy appears to say that practice is mandatory for certain officers under similar circumstances. It’s optional in Cobb County — with approval from a supervisor. In Dunwoody, where Police Chief Billy Grogan disagrees with forcibly taking blood from DUI suspects, the Police Department’s policy prohibits officers from seeking the warrants. The Cherokee County Sheriff’s Office and the DeKalb County Police Department have no written policies specifically addressing the matter, though their officers do use the warrants.
Several current and former prosecutors who reviewed Lisabeth’s case for the AJC criticized how Atlanta police handled it. The police could have summoned an officer with more experience to the scene to help, gotten Lisabeth to a safe place — given the fear that he was overdosing — and conducted some sobriety tests and then obtained a search warrant to draw his blood when he refused to submit to the test, said Morris “Mo” Wiltshire, a former prosecutor and now an Athens-based criminal defense attorney with extensive experience handling DUI cases.
“It’s definitely a mess,” Wiltshire said of the case. Wiltshire predicted that if Lisabeth had been convicted of the DUI charge in Atlanta: “I don’t think there is any judge in the state that I have ever seen that would not have put this guy in jail for a significant period of time.”
But it takes time to obtain search warrants and busy police departments like the one in Atlanta must set priorities, particularly when they are also fighting violent crime, said Frank Rotondo, the executive director of the Georgia Association of Chiefs of Police, which is led by Atlanta Police Chief George Turner.
And an Atlanta police spokesman dismissed the idea that completing only a portion of the standardized field sobriety test would be effective. He declined to speculate about what could have happened if his department had gotten a sample of Lisabeth’s blood.
“No law enforcement agency in the country is responsible for the acts of criminal conduct perpetrated by a criminal,” Atlanta Police Sgt. Warren Pickard said. “Mr. Lisabeth had several previous arrests and none of these impacted his sense of responsibility or altered his behavior. If the evidence and witness testimony support what we believe occurred, Mr. Lisabeth, and only Mr. Lisabeth, is the only person to blame for the act committed on April 15, 2016.”
After Lisabeth refused the blood test in Atlanta, Dobler submitted paperwork to the state Driver Services Department to have Lisabeth’s driver license administratively suspended for a year. Such a suspension would have ended in 2014.
An admission of guilt
Three months after his car wreck near IKEA, Lisabeth was summoned to Cherokee Superior Court for violating his probation requirements there. Among his many probation violations was his arrest on the DUI charge in Atlanta. He had been on probation for several convictions in Cherokee, including possessing cocaine, stealing a neighbor’s checks to buy cocaine and driving under the influence of cocaine.
The same day of his probation revocation hearing in Cherokee, Lisabeth signed a petition admitting to the 2013 driving under the influence of drugs offense in Atlanta. A transcript of his hearing shows that a Cherokee prosecutor asked Lisabeth's mother, Debbie, what caused her son to wreck in Atlanta in 2013. She responded that her son told her he had "relapsed" and that using heroin caused him to crash his car.
The Cherokee prosecutor who handled Lisabeth’s probation revocation case did not receive any requests from Fulton prosecutors for records of Lisabeth’s admission or his mother’s comments, said Cherokee’s chief assistant DA, Rachelle Carnesale. Carnesale said her office would have helped had Fulton authorities asked. She added it was not incumbent on her office to alert them about those documents.
“This may sound like a gap in the system to you,” Carnesale said in an email, “but it’s one of the primary reasons prosecutors run criminal histories on defendants. Collecting documentation on other related cases on a defendant is a primary part of working up the case.”
Carnesale said that if she discovered the person she was prosecuting had signed a document in another court admitting to the offense, she would attempt to use that record to convict him, though it would be up to the judge in that case whether that document would be admissible.
Fulton County Solicitor General Carmen Smith declined to comment when the AJC asked her if her office knew about the existence of Lisabeth’s admission or his mother’s testimony when one of her colleagues attempted to prosecute him. But a transcript of Lisabeth’s March 10 bench trial in Fulton does not mention those records.
“We only had circumstantial evidence based on the officer’s observations and communications at the accident scene,” Smith said in an email. “The defendant did not perform field sobriety tests or submit to a test of his blood, breath or urine.”
On March 17, Fulton State Court Judge Diane Bessen found Lisabeth guilty of reckless driving and following too closely but not guilty of driving under the influence of drugs.
“There was no evidence of drugs or drug paraphernalia at the scene, no odor of marijuana, nor any admission of consumption,” Bessen wrote in her decision. “Without establishing what might have caused defendant’s condition, there is no way this court can make a finding beyond a reasonable doubt on this charge.”
Kim Keheley Frye, a former prosecutor and now a DUI defense attorney who reviewed Bessen’s decision for the AJC, said the judge had no choice but to find Lisabeth not guilty.
“The officer was not properly trained,” Frye said of Dobler. “The state did not provide enough information regarding the cause of any impairment beyond a reasonable doubt.”
‘A failure of the justice system’
Last September, a Cherokee County Superior Court judge sentenced Lisabeth to a year in jail for violating his probation on burglary and forgery convictions by testing positive for opiates. Lisabeth, however, served only a fraction of that time — putting him back on the streets in December.
Four months later, Atlanta police arrested Lisabeth again, this time for allegedly plowing his car into the three young boys as they walked on a sidewalk along Joseph E. Boone Boulevard.
Cherokee Sheriff Roger Garrison said Lisabeth was given 38 days credit for time he had already served behind bars, and he received additional credit for good behavior and for working in the jail, which contributed to his early release. Georgia’s efforts to keep nonviolent offenders out of state prisons has also diverted people to county jails like the Cherokee detention center, leading to overcrowding, Garrison said. On May 31, Cherokee’s jail, which has capacity for 512 detainees, was holding 649.
“Sadly, it’s a common occurrence,” Garrison said about such early jail releases. “It’s virtually impossible to hold anyone the entire length of their sentence.”
Lisabeth is now at the Fulton County Jail facing a vehicular homicide charge in the death of 9-year-old Isaiah Ward. He has been placed in solitary confinement for his own protection because he has been receiving death threats, his attorney said. Police say he bought heroin somewhere nearby off Joseph E. Boone Boulevard and injected it minutes before he struck the boys. A police officer who investigated the accident scene said a syringe and a bag of heroin were found in Lisabeth's car.
Kellen Flatt was the motorist Lisabeth rear-ended in 2013 near IKEA. She said he appeared intoxicated. He was incoherent, his eyes were unfocused and his head was rolling around, she said. Flatt added Lisabeth had fallen asleep or passed out after he hit her and that she had to pat his cheek to wake him up. The wreck totaled her 1999 Volkswagen Jetta.
Flatt called the not guilty decision Lisabeth got for his DUI charge “a failure of the justice system because they are supposed to protect us.” She added that Isaiah Ward “had to pay the ultimate price because somebody along the line wasn’t completely faultless in doing their job.”