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Incidental beneficiary to sale of dealership lacked standing under Franchise Practices Act.

Topic: Franchise Practices Act, Decided by Judge Malihi 
Docket Number: 1635899 , Decision Date: 2016-05-25 
Attachment: Click here to download the decision. 

Welborn Chevrolet, a motor vehicle dealer, challenged General Motors’ (GM’s) refusal to approve of an agreement between two other dealers.  The agreement, if finalized, would have resulted in the relocation of a Buick-GMC dealership such that it would share a location with Welborn Chevrolet’s dealership.  [..] Read More..

Traffic stop did not commence when officer briefly activated emergency lights.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1635960 , Decision Date: 2016-05-25 
Attachment: Click here to download the decision. 

An officer’s activation of emergency lights may constitute a “show of authority” effectuating a seizure.  However, activation of blue lights is not irrefutable evidence of a traffic stop; whether an individual has been seized must be determined by analyzing “all of the circumstances surrounding the [..] Read More..

Registered nurse suspended indefinitely for diverting controlled substances for personal use.

Topic: Professional Licensing, Decided by Judge Malihi 
Docket Number: 1634115 , Decision Date: 2016-04-11 
Attachment: Click here to download the decision. 

While working in the emergency room of a hospital, a registered nurse repeatedly withdrew controlled substances from an automated medication administration machine, and failed to document that she thereafter administered them to patients.  The results of a drug screen indicated that the nurse had three [..] Read More..

Doctor subject only to sanctions that are supported with evidence.

Topic: Professional Licensing, Decided by Judge Malihi 
Docket Number: 1620386 , Decision Date: 2016-02-03 
Attachment: Click here to download the decision. 

The Georgia Composite Medical Board (“the Board”) sought to fine a doctor for failing to employ adequate diagnostic, examination, treatment, and recordkeeping procedures in his treatment of one patient.  Additionally, the Board requested that the doctor pay $265.00 as reimbursement for the peer review, and [..] Read More..

In DUI arrest, state failed to establish probable cause given totality of the evidence.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1614221 , Decision Date: 2015-12-31 
Attachment: Click here to download the decision. 

Minor driving infractions (speeding, crossing the dashed lane marker, slightly grazing curb upon stopping), watery eyes, and moderate odor of alcohol, were insufficient to demonstrate probable cause when weighed against clear indicia that the driver was not intoxicated, including his clear speech, normal gait, and [..] Read More..

Qualified aliens subject to five-year waiting period before receiving Medicaid.

Topic: Public Assistance, Decided by Judge Malihi 
Docket Number: ***** , Decision Date: 2015-10-07 
Attachment: Click here to download the decision. 

Petitioner and his family, all of whom entered the United States legally in 2012, were ineligible for Medicaid during a mandatory five-year “waiting period” absent a showing that they met a statutorily-prescribed exception.

Affidavits to support opposition to a motion for summary determination must be sworn.

Topic: Professional Licensing, Decided by Judge Malihi 
Docket Number: 1444768 , Decision Date: 2015-08-18 
Attachment: Click here to download the decision. 

A physician attached two affidavits to her response to the Georgia Composite Medical Board’s (“Board’s”) motion for summary determination.  The two affidavits, one of which was unsigned, and neither of which was sworn to in person before a notary public or other officer empowered to [..] Read More..

Personal testimony, change in address on driver’s license insufficient evidence of residency.

Topic: Elections, Decided by Judge Malihi 
Docket Number: 1555803 , Decision Date: 2015-06-08 
Attachment: Click here to download the decision. 
Attachment: Click here to download the decision on appeal. 

A candidate for State House affirmatively established that he resided in the district for which he sought office approximately eleven months prior to the date of the election.  However, the only evidence the candidate presented to support his contention that he resided in the district [..] Read More..

The Court again declined to apply Williams in a subsequent case held before Judge Michael Malihi.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1511892 , Decision Date: 2015-05-07 
Attachment: Click here to download the decision. 

Arresting officers need not ensure that DUI suspects understand implied consent notice.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1530697 , Decision Date: 2015-03-23 
Attachment: Click here to download the decision. 
Attachment: Click here to download the decision on appeal. 

The fact that an arresting officer read a DUI suspect the implied consent notice shortly after advising him of his Miranda rights, including his right to an attorney, did not render the implied consent notice defective.  Because the arresting officer read the applicable implied consent [..] Read More..

Decision to refrain from performing operation reasonable under the circumstances.

Topic: Professional Licensing, Decided by Judge Malihi 
Docket Number: 1511102 , Decision Date: 2015-03-20 
Attachment: Click here to download the decision. 

The Georgia Composite Medical Board sought disciplinary action against a surgeon for his decision not to immediately operate on a patient displaying signs of infection, but rather to wait until the following morning.  However, considering the risks of immediate surgery given the patient’s unstable condition [..] Read More..

Deposition transcripts from prior malpractice case admissible over hearsay objection, Daubert challenge.

Topic: Professional Licensing, Decided by Judge Malihi 
Docket Number: 1511102 , Decision Date: 2015-02-09 
Attachment: Click here to download the decision. 

Transcripts from a deposition in a prior medical malpractice lawsuit involving the same facts giving rise to the Georgia Composite Medical Board’s disciplinary action against Respondent, a surgeon, were admissible under a hearsay exception because the Board demonstrated that the witnesses were unavailable and Respondent [..] Read More..

Testimony consisting of witnesses’ interpretation of statutory provision improper and irrelevant.

Topic: Procedure, Decided by Judge Malihi 
Docket Number: 1512455 , Decision Date: 2015-02-20 
Attachment: Click here to download the decision. 

After exchanging witness lists, the parties filed various motions seeking to exclude the testimony of various witnesses at the evidentiary hearing, citing evidentiary law governing relevance and expert and lay witness testimony.  In response, the Court issued an order outlining the general rules that would [..] Read More..

Failure to accommodate request for independent test renders state’s test results inadmissible.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1500263 , Decision Date: 2015-02-11 
Attachment: Click here to download the decision. 

The arresting officer obtained an additional state-administered chemical test in response to a DUI suspect’s invocation of her right to an independent test.  Provision of the second state-administered test was insufficient to meet the statutory requirement that the arresting officer make efforts to accommodate the [..] Read More..

Unsupported breathalyzer test results not considered in appropriateness of sanction.

Topic: Educators, Decided by Judge Malihi 
Docket Number: 1512159 , Decision Date: 2015-03-03 
Attachment: Click here to download the decision. 

The results of a breathalyzer test obtained from an educator who came to school intoxicated were not admissible in the determination of the appropriateness of her sanction.  Because the technician who administered the test did not testify at the evidentiary hearing, inclusion of the test [..] Read More..

Suspect placed in handcuffs for transport to hospital was under custodial arrest absent indicia to the contrary.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1446835 , Decision Date: 2014-11-10 
Attachment: Click here to download the decision. 

An arresting officer’s testimony that he placed a suspect in handcuffs for transport to the hospital by ambulance sufficiently established that the suspect was under custodial arrest.  The officer’s subsequent reading of the implied consent notice was therefore proper and timely.

Need to respond to four-vehicle collision justified delay in reading implied consent.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1454144 , Decision Date: 2014-11-07 
Attachment: Click here to download the decision. 

An arresting officer’s delay in reading the implied consent notice to Petitioner was excusable in light of the ongoing exigencies presented by a four-vehicle car crash.

Convicted felons may not register to vote absent pardon or restoration of voting rights.

Topic: Elections, Decided by Judge Malihi 
Docket Number: 1516735 , Decision Date: 2014-12-09 
Attachment: Click here to download the decision. 

Respondent, a convicted felon, violated state law by registering to vote without having pardoned or having had his rights restored.  Accordingly, he was ordered to cease and desist from violating election laws and subject to a $250.00 fine and public reprimand.

State bears the burden of demonstrating that a SOURCE recipient’s communication deficits are caused by a non-covered diagnosis.

Topic: Health Law, Decided by Judge Malihi 
Docket Number: ***** , Decision Date: 2014-10-27 
Attachment: Click here to download the decision. 

Petitioner, a SOURCE recipient, was entitled to remain on the SOURCE Program absent evidence that her severe communication deficits were attributable to developmental or psychiatric diagnoses, which are not covered by SOURCE.

Driver’s initial encounter with the Trooper did not escalate into a custodial arrest.

Topic: DUI, Decided by Judge Malihi 
Docket Number: 1439471 , Decision Date: 2014-07-21 
Attachment: Click here to download the decision. 

The Trooper’s statement that he observed indicia of intoxication did not elevate the police-citizen encounter to a third-tier custodial arrest.  Rather, the Trooper’s statement amounted to an explanation of his request for field sobriety tests.  The statements certainly did not constitute a formal arrest.  Moreover, [..] Read More..

Deadline for filing challenges to the qualifications of candidates is exactly two weeks from the close of qualifying at 12:00 Noon.

Topic: Elections, Decided by Judge Malihi 
Docket Number: 1101550 , Decision Date: 2010-08-06 
Attachment: Click here to download the decision. 

Petitioner, Justin Chaney, challenged Adrienne Hunter-Strothers’ qualifications to run as a candidate for the Georgia Court of Appeals.  Petitioner filed his challenge at 1:40 p.m. on July 16, 2010, precisely two weeks, one hour and forty minutes after the close of the qualifying period at [..] Read More..

Admission to practice law in another state may fulfill the Georgia Constitution’s requirement that potential judges “shall have been admitted to practice law for seven years.”

Topic: Elections, Decided by Judge Malihi 
Docket Number: 1104352 , Decision Date: 2010-09-08 
Attachment: Click here to download the decision. 

The Georgia Constitution provides that “[a]ppellate and superior court judges shall have been admitted to practice law for seven years.” Secretary of State Brian Kemp challenged Ms. Adrienne Hunter-Strother’s candidacy for the Georgia Court of Appeals asserting that the valid date for determination of her [..] Read More..

Homestead exemption is not the sole factor in determining a candidate’s legal residence.

Topic: Elections, Decided by Judge Malihi 
Docket Number: 0831497 , Decision Date: 2008-06-24 
Attachment: Click here to download the decision. 
Attachment: Click here to download the decision on appeal. 

Secretary of State Karen Handel challenged James Powell’s qualification to be a candidate for Public Service Commission, District 4, asserting that Powell’s homestead exemption for an address in Cobb County demonstrated that he resided outside of District 4.  Judge Michael Malihi concluded that Powell produced [..] Read More..

Individual sanctioned for submitting absentee ballot application using the name of her deceased mother.

Topic: Elections, Decided by Judge Malihi 
Docket Number: 1315920 , Decision Date: 2012-12-03 
Attachment: Click here to download the decision. 

Individual who submitted an absentee ballot application in the name of her deceased mother subject to a fine and public reprimand for violations of election laws.

Candidate, Ralph David Abernathy III, disqualified from running for State Senate seat due to bounced check.

Topic: Elections, Decided by Judge Malihi 
Docket Number: 98-005-60 , Decision Date: 1998-07-08 
Attachment: Click here to download the decision. 

Mr. Ralph David Abernathy III, the incumbent Senator for Senate District 38, submitted a personal check to pay his qualifying fee.  When this personal check was returned for insufficient funds after the close of the qualifying period, the Secretary of State was authorized to remove [..] Read More..

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