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
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 the correct Implied Consent
warning. The correct warning must be read in substantial compliance with the
statute and must be read at the time of arrest or as soon thereafter as
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 designates the test. The officer also
must advise you that you have the right to an independent chemical test of your
own choosing to be performed by qualified personnel of your own choosing.
Occasionally an officer will not read the Implied Consent warning at the time of
arrest or does not reasonably accommodate 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 and had all of its
electronic and operating components attached and in good working order. [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
video recording prior to going to court. Virtually all prosecutors will allow us
to watch the video before we go to court, and in most cases we can obtain a copy
from the police with an Open Records Act request. These recordings 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
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 you are at least 21
years of age, 0.02 if you are under 21, and 0.04 if you were operating a
Following the arrest and test or refusal, the officer is supposed to submit a
sworn report to the Department of Driver Services to initiate an administrative
license suspension hearing on a DS form 1205. This process is separate and
distinct from the criminal proceeding. 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 limited 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
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. 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
have a commercial driver’s license, the limited permit is NOT valid for a
For a Second offense within 5 years, 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, a clinical assessment, 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, with the first six months requiring the use of an
ignition interlock device.
If you receive an administrative suspension, the time should be credited against
any suspension that is imposed because you plead guilty or are found 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]
FIRST OFFENSE WITHIN TEN YEARS
A fine of $300 to $1000 plus any statutory surcharges (usually an additional
50%); 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; DUI school; and a clinical evaluation unless
waived by the judge. The license suspension provisions of the law still contain
a five year “lookback” period. Therefore, on a “first in five” you will face a
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. However, if a conviction
for DUI-drugs is reported to the Department of Driver Services, a limited permit
is not available, and the period of “hard suspension” is six months.
*(for drivers with Georgia license over age 21 and of non-commercial vehicles)* [Top]
SECOND OFFENSE WITHIN TEN 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
will be imposed, in addition to 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).
At a minimum 30 days of community service will be required, along with an
alcohol and drug evaluation, a 17 week counseling program, DUI school, and
twelve months of probation. If the offense is a second within five years, the
license is (theoretically) suspended for three years. There is no limited permit
whatsoever during the first 12 months, and then you can have an interlock
ignition device installed on your car for six months. You may be able to
reinstate after 18 months if you have completed DUI school, the clinical
evaluation, and the 17 week treatment program. If the offense is a second in
five years, you will have your picture placed in the local legal newspaper (many
judges require this for a second offense within ten years), and the license
plate for any car you own must be surrendered. [Top]
THIRD OFFENSE WITHIN TEN YEARS
You will become a Habitual Violator if convicted of a third offense within
five years. However, if you are convicted of a third offense within ten years,
the court will impose a fine of not less than $1,000.00 and not more than
$5,000.00 with mandatory jail time of not less than 120 days nor more than 12
months (the Court may suspend all but 15 days). At least 30 days of community
service is required, plus DUI School, a clinical evaluation, and another 17-week
treatment program. For a second offense within five years, A FIVE YEAR LICENSE
REVOCATION is imposed. A limited (ignition interlock) permit may be available
after two years. Your picture will again be published in the local legal
newspaper (for a third offense within five years), and 12 months of probation is
also mandated. [Top]
FOURTH OFFENSE WITHIN TEN YEARS
Georgia’s felony DUI law went into effect on July 1, 2008. Any person
convicted of a fourth (or subsequent) offense within ten years will be subject
to a fine of $1000.00 to $5000.00 plus a imprisonment from one to five years. No
less than ninety days must be served in actual incarceration. Whether any
sheriff’s will give “two for one” credit remains to be seen. After release the
person must perform a minimum of sixty days of community service, except in
those cases where the person has been sentenced to three or more years in
prison. In that event the trial court can suspend the community service
requirement. Just like a third offense, the person is subject to DUI school,
clinical assessment, treatment and other requirements. In order for a person to
be charged with felony DUI all the predicate offenses (i.e., the three prior
DUI’s) must have occurred on or after July 1, 2008. If one or more occurred
before that date, the person is looking at a misdemeanor of a high and
aggravated nature. [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
video recording that will disprove the officer’s testimony that "The driver
could not keep his foot up" , or the video 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 will frequently
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 “clue” is distinct and sustained nystagmus when the
eye is moved to a lateral extreme or maximum deviation. The final measure is
whether there is an onset of nystagmus before 45 degrees. By measuring the angle
at which the eye begins jerking, an officer can theoretically estimate a
person’s blood alcohol concentration.
What does all of this mean?
WWe know when a police officer does not do the tests correctly. Oftentimes,
an officer lose credibility if he either cannot remember how to perform the
tests properly or simply failed to do so. Most juries can understand that field
tests are not really all they are “cracked up to be.” Most jurors cannot stand
on one leg without raising an arm or hopping for thirty seconds regardless of
whether or not they have been drinking. Field sobriety tests can be handled in
court with proper training and questioning. While it is true that people who
have had too much to drink may not perform well on these tests, 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 may have some validity. However, road
conditions are different than laboratory conditions. Heavy traffic, oncoming
headlights, and flashing blue lights all take their toll. And in most cases it
is important to remember that if the test was not done properly, its validity is
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 test of blood, breath, urine, or another
bodily substance to determine if he or she is under the influence of alcohol or
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
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 wavelengths of light. It
measures the amount of light that is absorbed at a particular wavelength and
computes a breath alcohol concentration. In theory, the more alcohol that is
present causes a greater the absorption of light.
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 0.08 grams on their first try, the next test will
be valid if it is as low as 0.06 or as high as 0.10 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 on 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 limited 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.
Will I go to jail for this?
Yes, a DUI generally carries a maximum penalty of 12 months in jail and a
minimum period of 24 hours in jail, with three possible exceptions (first in ten
years with a refusal, a BAC under .08, or a non-alcohol DUI). 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 ten 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 within five years
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, and a
limited permit is not available if a DUI-drugs is reported to the Department of
Driver Services. Of course, if we obtain a non-DUI disposition, you will not
suffer any suspension, and any previously imposed administrative suspension is
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. [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 or subsequent
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]