DUI (The Basics)

In order to be convicted of DUI, it must be shown that you were driving or in actual physical control of a moving vehicle. The burden is on the State to show that the officer had a reasonable, articulable suspicion for stopping or approaching the vehicle. If you were stopped at a roadblock, the prosecutor must show that the roadblock was set up in accordance with the Fourth Amendment to the U.S. Constitution. These issues are somewhat complex. Lawyers who only handle the occasional DUI will not be aware of the latest cases that affect your rights.

The next stop in a DUI case is the officer’s roadside determination that there is probable cause to arrest you for DUI. The State must show that it is likely that you were a less safe driver as a result of drinking alcohol. Many cases involve the use of field sobriety tests. These tests can help an officer make up his mind about whether you should be arrested OR bolster his previously formed opinion that you are DUI.

After you are arrested, the officer MUST read at the time of arrest the correct Implied Consent warnings. These warnings must be read in substantial compliance with the statute.

There are three different warnings, and the officer must read the correct warning. This warning gives you the option of either taking a State test (or tests) or refusing the test. The officer chooses the test. The officer also must advise you that you have the right to an independent chemical test of your own choosing. Occasionally an officer will not read the Implied Consent warning at the time of arrest or refuses a request for an independent test. This may be grounds for the exclusion of the State test. You do not have the right to have an attorney present at this point in time.

In most DUI’s the final part of the case is the State administered test or lack of a test. If a test is given, the State must prove that the test was done properly and on a machine that was working properly. [Top]

HOW CAN WE HELP YOU?

We will make sure that the State can prove all of the elements of the case. We are entitled to all reports that are favorable to your defense and the identity of all witnesses who may testify against you. We frequently review a videotape prior to going to court. Most prosecutors will allow us to watch the videotape before we go to court, and we can usually obtain a copy from the police with an Open Records Act request. These tapes are very helpful in the defense of a case.

We are entitled to contest certain aspects of the case prior to a trial. We use motions to suppress evidence that has been gathered illegally. In some cases, a granting of a motion or the presentation of a motion to the State will cause them to reduce the charges. We do whatever we can to win the case before we go to trial. In the event that a trial is necessary, we know the expert witnesses who can testify about the field sobriety tests or chemical tests. We can make no promises except one: There is a 100% chance that you will be found guilty if you plead guilty.

IMPORTANT NOTE: If you took a test and the result exceeded .02 (if you are under age 21), .04 (if operating a commercial vehicle), or .08 (all others) or if you refused the test, you must call me as soon as possible so that your privilege to drive is not taken away before we ever set foot in the courtroom. [Top]

ADMINISTRATIVE LICENSE SUSPENSION

Your driver’s license can be suspended before your criminal case is resolved. It is possible to suffer a suspension of your license and then be found not guilty at trial. There are two ways to have your license suspended before you are convicted of DUI.

1. If you refuse to take the requested State administered chemical test.

2. If you take the test and the result is a "per se" violation.

“Per Se” is the blood alcohol level above which it is illegal to drive even if you are not less safe. The illegal act is simply having that specified amount of alcohol in your body. These levels are 0.08 grams or more if arrested after July 1, 2001 and you are age 21 or over, 0.02 if you are under 21, and 0.04 if you were operating a commercial vehicle. (If arrested before July 1, 2001 and you are age 21 or over, the legal level is 0.10 grams or more.)

Following the arrest and test or refusal, the officer is supposed to submit a sworn report to the Department of Public Safety to initiate an administrative license suspension hearing on a DPS form 1205. This process is separate and distinct from the criminal hearing. The “only” penalty is loss of your privilege to drive; no criminal penalties can be imposed in the administrative license suspension proceeding. The Administrative hearing is conducted by the Office of State Administrative Hearings (OSAH) . If you either refuse to take the test or register a "per se" alcohol level, you have ten business days to request an administrative hearing. If you do not request the hearing with ten business days, the following penalties apply: [Top]

REFUSING THE TEST

If a police officer reads the Georgia Implied Consent Warning to you, you are may either take or refuse the State test. Should you refuse to take a test, your license can be suspended for up to one year without any work permit. The only way to get your license back is to win your DUI case in court or have the case reduced to a non-DUI charge. If you did not send a letter within 10 days of arrest, your license will be suspended on the 31st day after arrest. [Top]

THE "PER SE" VIOLATION (REGISTERING ABOVE 0.02, 0.04, 0.08)

Under 21: Per Se is .02

Over 21: Per Se is 0.08

Commercial Driver in Commercial Vehicle: Per Se is .04

If arrested before July 1, 2001 and over 21, the Per Se is 0.10

For a first offense within five years, your driver's license will be suspended for one year effective the 31st day following your arrest. However, you may obtain a 30-day limited permit. After this permit expires, you can receive early reinstatement of your driver's license if you have completed DUI school and pay the appropriate reinstatement fee ($200.00 via mail and $210.00 if you apply in person). Your license will be suspended for the same period of time if you request a hearing in a timely manner but lose at the administrative hearing. Note, if you are a commercial trucker, the limited permit is NOT valid for a commercial vehicle.

For a Second offense within 5 years, effective July 1, 2001, the period of suspension is three years. No limited permit is allowed for 12 months, and for the next six months you will have a limited permit with an ignition interlock requirement. License reinstatement can take place after 18 months if you have completed the interlock requirements, Alcohol and Drug rehabilitation courses, and DUI school, not to mention paying the restoration fee.

For a third offense within five years, if you do not request a hearing in a timely manner, or if you request a hearing and lose, your drivers license is suspended for five years. No work permit is allowed. You can seek a probationary license after two years.

If you receive an administrative suspension for a “per se” violation, the time should be credited against any suspension that is imposed because you plead guilty or are found guilty.

This applies for all offenders unless it is your third DUI in five years. However, if you receive an administrative suspension because you refused to take the state test, none of the suspension time will be credited against any suspension you receive if you are convicted or plead guilty.

REMEMBER. YOU HAVE 10 BUSINESS DAYS TO REQUEST THE HEARING. MY OFFICE WILL BE HAPPY TO DO IT FOR YOU. PLEASE CALL ME AT 770-830-8560. [Top]

DUI PENALTIES

FIRST OFFENSE WITHIN FIVE YEARS.

A fine of $300 to $1000 plus any statutory surcharges (usually an additional 15-25%); 10 days to 12 months in jail (the Court may suspend all but 24 hours); 12 months on probation, less any jail time imposed; Minimum 40 hours of community service in most circumstances; Suspension of driving privileges for one year. You may apply for early reinstatement of full driving privileges after 120 days if you have completed DUI school and a license reinstatement fee is paid. A limited driving permit may be available for use during the suspension period.

*(for drivers with Georgia license over age 21 and of non-commercial vehicles)* [Top]

SECOND OFFENSE WITHIN 5 YEARS (for arrests made after July 1, 2001)

A fine of not less than $600.00 nor more than $1,000.00 plus any surcharges. A period of imprisonment of not less than 90 days nor more than 12 months (the Court may suspend all but 72 hours in jail). Minimum 30 days of community service, except if you are under 21 where the person's alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service is a minimum 40 hours. License Suspension for at least 12 months. There is no work permit during the first 12 months, and then with the Judge’s consent you can have an interlock ignition device installed on your car for six months. You may be able to reinstate after 18 months. An alcohol and drug evaluation with a 17 week counseling program is required. This is not DUI school, but you will have to attend DUI school as well. Twelve months of probation are mandated, you will have your picture placed in the local legal newspaper, and the license plate for any car you own must be surrendered. [Top]

THIRD OFFENSE WITHIN FIVE YEARS

(You will become a Habitual Violator if convicted) A fine of not less than $1,000.00 and not more than $5,000.00. Mandatory jail time of not less than 120 days nor more than 12 months (the Court may suspend all but 15 days). Not less than 30 days of community service, except if you are under 21 where the person's alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service is a minimum 40 hours. DUI School is mandated along with an alcohol and drug treatment assessment. A FIVE YEAR LICENSE SUSPENSION. A limited (ignition interlock) permit may be available after two years. Your picture will again be published in the local legal newspaper. 12 months of probation are also mandated. [Top]

FIELD SOBRIETY TESTS

In most DUI cases, an officer will ask you to perform three tests - the Horizontal Gaze Nystagmus, the Walk and Turn, and the One Leg Stand. These are the tests that the officer has been trained to administer. The officer will usually write down his observations in a police report. All to often his or her observations will differ from what really took place. Hopefully, there is a videotape that will disprove the officer’s testimony that "The driver could not keep his foot up" , or the tape may reveal that the driver was not quite as unsteady as the officer said. Most officers will exaggerate the driver’s performance on the field tests in order to obtain a conviction. However, effective cross-examination with or without a video usually reveal all the things you did right during the field sobriety tests - things the officer will seldom volunteer. [Top]

THE HORIZONTAL GAZE NYSTAGMUS TEST

The Horizontal Gaze Nystagmus is a test designed to measure the jerking of the eye. There are three ways to measure this "jerking" The first is to check for smooth pursuit. The next check is done to see whether the nystagmus becomes more "distinct" when the eye is moved to a lateral extreme or maximum deviation. The final measure is whether there is an onset of nystagmus before the 45 degrees. By measuring the angle at which the eye begins jerking, an officer can, theoretically, roughly estimate BAC. [Top]

What does all of this mean?

We know when a police officer does not do the tests correctly. Oftentimes, if I am able to catch them, they will look foolish. Most juries can understand that field tests really do not mean all that they are set out to be. Most jurors cannot stand on one leg regardless of whether or not they have been drinking. Field sobriety tests can be handled in court with proper training and questioning. I believe that people who have been drinking will not perform well on these tests, but I also believe that most non-athletic people will not perform well either.

The Horizontal Gaze Nystagmus is used by police and prosecutors as a scientific test. If it is done correctly, it has been shown to have validity. However, road conditions are different than laboratory conditions. An officer with traffic going by, blue lights flashing, and potential for danger does not always do the test as he was taught. Thus, if the test is not done properly, the validity is compromised. [Top]

State Administered Tests of Blood, Breath, and Urine

The police are allowed to ask a driver to submit to a State administered chemical test if the officer has reasonable grounds to believe that the driver is operating a moving vehicle while under the influence of alcohol. In addition, the Legislature has determined that any person who operates a moving vehicle in this state has given consent to have a blood, breath, urine, or test of other bodily substances to determine if he or she is under the influence of alcohol.

Once you are arrested for DUI, an officer should read the implied consent warning. This warning advises you of the consequences of taking a test and gives you the option of refusing a test. In addition, the warning advises you of your right to your own chemical test once you take the State test. Contrary to public opinion, the law does not give people the right to an attorney prior to taking a test. [Top]

Breath Tests

If asked to take a breath test at the police station or jail, you will be tested on the Intoxilyzer 5000 machine. This is the only machine approved for use in Georgia. The Intoxilyzer 5000 works by measuring wave lengths of light. It measures the degree that alcohol absorbs infared light. The more alcohol present the greater the absorption of light and the higher the level of alcohol. [Top]

Problems With Breath Testing:

The Intoxilyzer 5000 is a machine and is subject to error. For example, if a person gives a breath test of 0.10 grams on their first try, the next test will be valid if it is as low as 0.08 or as high as 0.120 grams. The range is + or - .02 grams or more. That is a huge leeway in order for a test to be valid.

To bring it closer to home: Would you feel comfortable if I told you that ten people were going out on a boat and the law required me to have a life jacket for each of them. However, the law gave me some leeway and told me that it would be o.k. if I had anywhere between 8 and 12 jackets on the boat. Would you feel comfortable getting on that ship?

There are numerous things that can affect a breath test such as proximity to electronics that emit radio waves, like police walkie-talkies. These items should be turned off when in the room where the Intoxilyzer test takes place. The machine if properly working should detect any radio interference.

A person's physical condition, or exposure to certain substances, may also cast doubt onto the accuracy of the Intoxilyzer 5000. Some forms of diabetes, hernias, gastric reflux, or other illnesses may yield inaccurate results on a breath test. In addition, exposure to certain chemicals like acetone may result in an inaccurate breath alcohol test result. Further, some diets like high protein diets may impact a breath test.

The machines are only tested four times a year in Georgia. In some states, there is the ability to save the breath sample for re-testing. However, Georgia has chosen not to have this feature on its machine. Although our breath machine has a filter that should eliminate interfering substances such as toluene, acetaldehyde, and acetone, from a breath test, routine inspection only includes testing for acetone filtration. Moreover, there is nobody in Georgia who can repair a broken machine. Rather, the machine must be packed and shipped to the factory for repair. The officer who gave the breath test has generally only been through a sixteen hour course to administer tests. They do not know much more than how to turn the machine on and off. However, following recent court decisions, it is highly likely that the breath test will be admitted into evidence at trial. Therefore, it may be necessary to hire an expert to testify and educate the jury about the deficiencies in the breath test. It may be likely that there were some problems with a breath test. If there were, a good lawyer should be able to attack the result. [Top]

MOST COMMON QUESTIONS OUR CLIENTS HAVE ABOUT THEIR DUI CASES

Can we really win?

Yes. In my opinion a win is obviously a not guilty verdict or an outright dismissal. However, we also look at a win as a DUI charge that is dropped or reduced to another offense. Frequently, either before or during a hearing on a motion to suppress, a prosecutor will appreciate the weakness of the case and reduce the charge, because they understand that a DUI may be difficult to prove. After learning of the facts of your case, we will tell you what we need to do to win and what our chances of success are. [Top]

Can I plead Nolo or No Contest?

A nolo plea for offenses prior to July 1, 1997 could save your driver’s license. However, it is of little use today, because it will not save the license. It may carry some benefits in the event of an auto accident where liability is an issue. [Top]

Will the Prosecutor know my record?

The State has access to your history. In most cases the State will know all about your prior record, although some states (e.g., Florida) do not report on-line. They will also know if it is clean. The prosecutor may obtain a national criminal history which should show prior offenses in other states. We do not present this evidence to the State, but we must know the truth so we can adequately prepare your defense. [Top]

How long does a DUI stay on my record?

In Georgia a DUI will remain on your record forever. [Top]

I do not live in Georgia, so how will this affect me, and will I have to return for court?

Georgia can suspend your privilege to drive in this State, but it cannot suspend your license. In addition, it cannot issue any kind of limiteed permit for a person with an out-of- state license. However, if convicted, your state will most likely find out and issue some sort of suspension. Most likely, you will have to return to Georgia for at least one court appearance. [Top]

Will I go to jail for this?

Yes, a DUI carries a maximum penalty of 12 months in jail and a minimum period of 24 hours in jail, with two exceptions (first in five years with a refusal or BAC under .08). DUI has become a very serious issue, and most judges will give jail time for even a first offense. Most judges will look at a lifetime record. Even though the law only has specific penalties for DUI’s within a five year period, it is not uncommon for a Judge to look outside that window to determine a sentence. [Top]

Can I get a work permit if I am convicted?

It depends on a number of factors. If it is a first offense and you are not administratively suspended for a refusal and you have a Georgia Driver’s License, you should be able to get a permit unless you are under 21. The limited permit will not permit you to operate a commercial vehicle. Of course, if we obtain a non-DUI disposition, you will not suffer any suspension, and an administrative suspension is erased.

If it is a second offense in five years, you cannot get a limited permit until 12 months after the suspension goes into effect and you have an interlock ignition device installed on your car. If it is a third offense in five years, a permit is only available after two years. However, if you have been administratively suspended, these answers may change. There are many different situations, so an individual analysis is what you need. It costs nothing to talk to me, just call me at 770-830-8560 or at 1-800-564-6728 if you are outside our area code. [Top]

What is an interlock ignition device?

It is a device that is installed on the steering column of the car and requires a breath sample in order for the car to start. In addition, it will beep at intervals and require breath samples. If any alcohol is detected, the car will shut off. An interlock device is required on all second offenses within a five year period. Some judges require an interlock on all second offenses lifetime and can impose it as a special condition of probation, even on a first offense lifetime. [Top]

When can I speak to you?

We are in court on a regular basis. If you are in the west Georgia area, just call the office for a free initial consultation. If you are not, we will return your call if you just leave your name and number and let our receptionist know that you want to speak to us about a DUI. [Top]

WHAT TO DO IF STOPPED BY THE POLICE FOR DUI

What should I do if pulled over and am suspected of a DUI?

If you are over twenty one and have not been convicted of a DUI in the last five years:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY, SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT).

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT [Top]

If over twenty one and have been convicted of a DUI in the last five years:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. UNLESS YOU HAVE HAD 2 DRINKS OR LESS DO NOT SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT; HOWEVER A 2ND OFFENSES DUI WITHIN 5 YEARS WILL LEAD TO 12 MONTHS WITHOUT A LICENSE ANYWAY).

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. IF YOU TAKE THE TEST ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT [Top]

If under twenty-one:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. POLITELY REFUSE TO TAKE THE REQUESTED CHEMICAL TEST. (One drink may put you over the legal limit)

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED (Any admission of drinking may lead to a separate charge for underaged possession of alcohol). [Top]

If a commercial driver:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD ALCOSENSOR

3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT)

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT [Top]