We intend for this page to be the authoritative source on Georgia DUI charges, and it is our hope that it will provide you with the foundation to understand what your case will look like going forward and some of the things that you should consider in evaluating DUI attorneys. If you have landed on this page, you’re probably experienced one of the scariest events of your life – a DUI arrest. When evaluating Georgia DUI lawyers, there are several things that you should consider: (1) is the DUI lawyer Board Certified in DUI Defense, (2) does the lawyer regularly engage in DUI litigation (motions and trials), and (3) has the DUI lawyer tried more than 60 DUI jury trials? You do not want to be a lawyer’s “learning opportunity”. You will not be benefitted by a lawyer that does not actually challenge the State’s evidence regularly. The most important decision that you can make following a DUI arrest is who you will retain to represent you in your case. An experienced, qualified, and aggressive Georgia DUI lawyer will help you:

• Understand the legal process and how potential outcomes may impact your employment and your driver’s license,
• Understand possible outcomes and the procedure that your case will follow,
• Understand possible legal challenges to the admissibility of evidence in your DUI case,
• Understand whether you should proceed to a trial or accept a plea offer, and
• Understand how your DUI will be defended if the case proceeds to a trial.

A DUI charge and the possibility of a DUI conviction can be devastating for most people especially if it’s your first offense If you are looking for a DUI lawyer with a proven record of success that will care about you and your case, we may be able to help you, but you have to take a simple first step: call us. Do not let the uncertainty lead you to procrastinate. Our law firm can deal with this problem and help you through it, but we need you to take the first step. Most of the stress and anxiety associated with both a DUI charge and the possibility of a conviction arising from the uncertainty of the process and the potential penalties (court-imposed penalties and secondary penalties such as the loss of employment). Our DUI defense attorney will help you understand the process and will relieve most of the worry associated with the unknowns caused by your DUI arrest.

You Will Not Find a More Qualified Georgia DUI Lawyer

Ben Sessions is 1 of 4 DUI attorneys in state of Georgia to attain Board Certification through the National College for DUI Defense which is the only organization sanction by the American Bar Association to issue the Board Certification status. Ben has years of experience successfully defended DUI, serious injury by vehicle, and vehicle homicide cases throughout Georgia, and he has successfully litigated complex DUI-related issues before the Georgia Supreme Court.  Contact our law office today for a free consultation. Sessions & Fleischman specializes in Georgia DUI Law. Ben Sessions’ primary offices are in Macon, GA, Atlanta, Ga, and Columbus, GA. However, clients are frequently defended in other counties such as Gwinnett County, Dekalb County, Cobb County, and other cities such as Marietta, Roswell, Sandy Springs, Peachtree, Alpharetta, Decatur, and so many more.

Your DUI Lawyer Can Make a Huge Difference

There is a common misconception among some people that lawyers are merely commodities, and that lawyers don’t really make a positive difference in the outcome of the case. Much to the chagrin of many of my colleagues, I would tend to agree with this proposition in most cases. (I’ll explain what I mean by that just shortly.) However, there is clearly a class of cases in which the lawyer that you select will make a difference: if you absolutely cannot tolerate a DUI conviction, if you have a prior DUI conviction, if you are charged with vehicular homicide based upon a DUI charge, or if you face a serious injury by vehicle charge, the lawyer that you select will make a tremendous difference in the outcome of the case. When I say that a certain class of DUI lawyer will make a difference in the outcome of these categories of cases, I am working from the assumption that there is uncertainty in the resolution of cases, and contrary to what many people say and think – even in cases involving blood or breath tests, cases in “easy” jurisdictions, and in jurisdictions with “no reduction” policies – there is a tremendous amount of uncertainty in the way that these DUI cases are concluded.

Good DUI lawyers earn their reputation (and money) positively affecting the result in your case. If you believe that our system is one in which every case is resolved by some back room deal, I can affirmatively say that I am not your lawyer. Many of my client’s charge are dismissed or reduced prior to a formal hearing or a trial based upon negotiations, but those negotiations are based upon work, effort, and my willingness to try almost any DUI case in my office. Negotiations are not based upon a slap on the back and a wink and a nod between a defense lawyer and a prosecutor. If a lawyer is willing to tell you that his relationship with a certain prosecutor will help you “get a deal,” wouldn’t one think that same relationship limit might limit his willingness to aggressively pursue a trial and a legal advantage if negotiations fail? What if the prosecutor suggested to such a lawyer that a deal could not be made in your case, but if the lawyer entered a guilty plea to DUI in your case, the lawyer would be helped in another “important” case? The very best DUI lawyers earn their money by defending cases in an honorable manner through the legal process. I have a very good professional relationship with many prosecutors, and many are – in turn – willing to offer favorable resolutions to my clients, but those results have been earned. Those prosecutors know that I am prepared on each and every case, and I am willing to try the DUI case if necessary.

Once you accept that there is uncertainty in your DUI case and you understand that your DUI lawyer can affect the outcome of your case, you will be in a much better mindset to cope with your pending charge. Understanding that the outcome of the case can change throughout the case (perhaps over months or even years) and even up to the point of a jury verdict, you will gain patience but it will also drive you to engage in steps to mitigate any possible sentence and it will drive you to actively engage in an necessary assistance in the development of a defense to your charge. Patience is necessary, but positive action is also very helpful in many DUI cases.

Georgia DUI Penalties

The exact penalties for DUI depend on the number of prior convictions, if any, the driver has, as well as any other relevant circumstances in the case. Generally, state law allows for the following DUI punishments upon conviction.

• First offense: misdemeanor; penalties may include jail time between 10 days and 12 months, fines between $300 to $1,000, community service, and alcohol counseling.
• Second offense: misdemeanor; penalties may include jail time between 90 days and 12 months, fines between $600 and $1,000, at least 30 days of community service, alcohol counseling, and 12 months probation.
• Third offense: high and aggravated misdemeanor; mandatory minimum jail sentence between 120 days and 12 months; other penalties may include fines between $1,000 and $5,000, at least 30 days of community service, alcohol counseling, and 12 months probation.

DUI Case Evaluation

Our approach to evaluating each of our DUI cases is wholistic. We try to look at every aspect of the case, the court, the prosecutor, and your life to determine what are our strengths and weaknesses. Knowing how to evaluate DUI field sobriety tests, for example, is important, but it is by no means the only thing that should be considered in the development of a DUI defense strategy.

Every driving under the influence case in our office begins with an analysis of the evidence obtained by law enforcement on the side of the road. This begins with trying to determine whether there was a reason for the stop. Next, we look at how our client actually stopped their vehicle. Some people refer to this as the stopping sequence. One of the things that we try to determine from the beginning is who the actual stopping officer was. Sometimes the stopping officer is different from the officer that actually arrested the defendant, and we want to first look for inconsistencies in what the officers allege that our client did while driving. Reasons for the initiation of a stop that turns into a DUI investigation can vary widely from case-to-case:

• Is the person alleged to have failed to maintain their lane?
• Did the driver fail to have their headlights properly on?
• Was the driver speeding?
• Was the driver driving below the minimum speed limit?
• Was the driver involved in a car accident?

Whatever that the basis for the stop, we want to know and we want to know whether or not it correlates with what is presented on the video. A critical consideration is whether there is any basis to correlate the alleged driving violation to impairment by alcohol or drugs – your DUI lawyer must know the arresting officer’s training and the National Highway Traffic Safety Administration’s validation studies.

Next, we began looking at the officers’ interaction with our client. I’m sorry. From there we began looking at how it is that our client reacted to the blue lights. The actual stop by the officer, while we’re looking at there, is how the client controlled their vehicle. Did the client suddenly slam on the brakes? Did the client properly turn on the turn signal? Did the client stop in a safe location? They stop in a normal, non-impaired manner is what we’re looking for in that sequence. If the client did not do those things, then we are looking for reasons why the client didn’t do it. So, for example, if there was a prolonged period of time that a lapse between the officer initiating the blue lights and the client pulling over, why did the client do that wasn’t because there wasn’t a safe location of the lover because there were some other distraction on the roadway of those are things that we need to be aware of and notice

After our client has stopped their vehicle, we begin observing the officer’s interaction with our client. Here are the things we How does the client speak to the officer? First, is it real? Is a clear and not mumble is a speech of here to be impaired by alcohol or drugs?

Does the client speak coherently with the officer? Are they being responsive to questions? Do the client appear to understand what it is that the officer was asking of him or her

Then we’re looking at generally when an officer approaches our client, they will ask for the production of their license. Other identifying information such as your insurance card. Does the client understand what the officer’s asking for and are they able to logically respond to those questions and produce the items requested by the officer?

After an officer has made initial contact with you, generally they will ask that you exit from the vehicle if they believe that you are possibly under the influence. Lots of alcohol or drugs when you’re exiting from the vehicle, they are looking for whether or not you had difficulty balancing without the assistance of the car or the door and whether or not you stumble or stagger or sway. Once you’ve actually exited the vehicle from the exit of the vehicle, they didn’t observe how it is that you walk to the rear of your car in the front of their patrol car. Generally, that is the location where field sobriety tests are performed and you are videoed during that interaction.

Georgia DUI Less Safe Charges

One of the most frustrating things that many, if not most clients, have to deal with are DUI less safe charges. You can be charged with DUI in Georgia even if the State cannot prove that you were above the legal limit for alcohol. However, a DUI less safe charge IS NOT a conviction. Many DUI less charges are incredibly defensible.

“But they don’t have any real evidence that I was DUI.” -DUI Less Safe Client

The quote above is one of the most frequent things that I hear from clients charged with DUI less safe in Georgia. In most Georgia DUI less safe cases, the State/Government/Prosecutor does not have a blood, breath, or urine test result, so they cannot point to a test to say that a person is less safe as result of alcohol or drugs. For many people and, particularly, people charged with DUI less safe, that means that the government does not have any real evidence.

A DUI less safe charge in Georgia is one of the confusing charges that people face. Most people that come into my office have no idea what the charge means. Georgia DUI law provides 4 different provisions that are the basis for DUI “less safe” charges:

(a) A person shall not drive or be in actual physical control of any moving vehicle while:

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive….

What does “less safe” mean in Georgia DUI law?

In order for a judge or jury to find beyond a reasonable doubt that a person is guilty of DUI to the extent that he or she is a less safe driver, the judge or jury must find that the driver is so affected by alcohol or another substance to a degree which renders the driver incapable of driving safely. Atkins v. State, 175 Ga. App. 470, 333 S.E.2d 441 (1985).

What evidence do our Georgia DUI lawyers use in evaluating the strength of a DUI less safe charge?

When Georgia DUI lawyer Ben Sessions evaluates the strength of the state’s DUI less safe charge pending against a client, he looks closely at the following:

• The client’s operation of the vehicle (driving, stop, and parking);
• The normal observations expected to be seen in a person who may be impaired by alcohol (speech, eye appearance, manual dexterity, exit from the vehicle, walk to the rear of the vehicle, etc.);
• Performance on field sobriety tests; and
• The results of the state-administered chemical test or refusal of the state-administered test.

In many DUI cases, pre-trial hearings and the trial are dominated by a focus upon the chemical test result (whether it is a blood, breath, or urine test). However, it is essential to recognize the critical nature of the remainder of the state’s case/evidence. The DUI less safe charge is no less important to the DUI defendant. As we often tell jurors in closing arguments, an acquittal upon the DUI per se charge and simply “throwing the state a bone” by convicting the Defendant of the DUI less safe charge does the Defendant absolutely no good. This type of “split the baby” verdict will have the same lasting effect upon a Defendant’s life and future. In Georgia, a DUI, whether it is a DUI per se or a DUI less safe, is a DUI.

Georgia DUI Drugs Charges

Georgia DUI less safe charges are one of the most confusing charges to defendants and, unfortunately, many lawyers.  A qualified and experienced DUI drugs lawyer can help. The confusion surrounding Georgia DUI less safe charges arises primarily from the belief that in a DUI case there must be a chemical of blood, breath, or urine to establish that the suspect is under the influence alcohol, drugs, or a combination of alcohol and drugs.

Most DUI drugs must cases must be prosecuted as a DUI less safe charge. For many DUI drugs cases, even if you are not taking a drug under a prescription, the state must still establish that you were impaired as a result of the drugs.  In other words, although you were not in lawful possession of the drugs, the state cannot simply rely upon the presence of the drugs within you to establish a DUI charge:

To sustain a conviction of DUI-less safe, it is not sufficient to show merely that Head was driving after having ingested, at some point in time, alprazolam and cocaine. Rather, the state must prove that Head “was a less safe driver as a result of being under the influence of [these drugs].” (Citation and punctuation omitted; emphasis in original.) Ricks v. State, 255 Ga.App. 188, 190, 564 S.E.2d 793 (2002). See also State v. Ellison, 271 Ga.App. 898, 902(3)(b), 611 S.E.2d 129 (2005) (“Mere presence of [drugs] is not the issue…. [T]he [s]tate must prove that the defendant had impaired driving ability as a result of [the drugs].”) (Punctuation and footnote omitted); Bowen v. State, 235 Ga.App. 900, 901–902, 510 S.E.2d 873 (1999). Cf. State v. Rish, 295 Ga.App. 815, 816, 673 S.E.2d 259 (2009) ( “If the evidence shows only that a driver is intoxicated and does not show that his consumption of alcohol [or drugs] has impaired his ability to drive, there is no probable cause to arrest for DUI-less safe.”).

Georgia DUI less safe charges are among the difficult concepts for defendants to grasp.  If you have questions regarding your Georgia DUI case, please contact our office.

Many lawyers handling DUI drugs cases really don’t have experience with the evidence that must be prepared to challenge in these cases. Many aspects of the DUI drugs case, particularly the quasi-“scientific” field sobriety tests, are different than the field sobriety tests you may see in an alcohol-related DUI case.

1. There is no per se blood or urine test limit for a DUI based upon prescribed medications or marijuana. Many prosecutors and state toxicologists will attempt to argue that the suggested therapeutic ranges create per se DUI limit for prescription drugs. Anticipate this argument and testimony at trial.
2. There is no validation study for the use of the horizontal gaze nystagmus (HGN) test in DUI drugs cases. There is no case in Georgia approving of the use of HGN evidence under the Harper standard in Georgia.
3. A Harper challenge should made as to the admissibility of lack of convergence, romberg, and pupil size evidence in DUI drugs cases.
4. DUI drugs cases are generally much more defensible (winnable) than DUI alcohol cases. There are numerous reasons why that is the truth, but it is just important that you recognize that there are some very good reasons to challenge these cases. In this post, I am going to discuss some of the reasons why I really like defending these cases.
5. There are commonly mistakes in the charging instruments in DUI drugs cases. In Georgia, there are distinct differences in the DUI drugs less safe statute and the DUI drugs per se statute. Look for the inclusion of “metabolites and derivatives” in a DUI less charge. This presents a great basis for a demurrer to the language of the accusation/indictment.

Below are the 7 drug categories of the drug evaluation and classification (DEC) program employed by drug recognition experts in DUI cases. DREs classify drugs in one of seven categories: Central Nervous System (CNS) Depressants, CNS Stimulants, Hallucinogens, Phencyclidine (PCP) and its analogs, Narcotic Analgesics, Inhalants, and Cannabis. Drugs from each of these categories can affect a person’s central nervous system and impair a person’s normal faculties, including a person’s ability to safely operate a motor vehicle.

Using the Winek Chart for Determining Therapeutic Drug Levels in DUI Drugs Cases

It is not uncommon for people to be charged with driving under the influence of prescription drugs in Georgia. DUI charges based upon the alleged consumption of prescription drugs have been steadily increasing. However, there remains a great deal of confusion about how blood test results should be interpreted. Most criminal defense attorneys have no idea how to decipher blood test results showing the presence of prescribed medications. This post is intended to provide you with some guidance in using the Winek Chart for determining therapeutic drug levels in DUI drug cases. The Georgia Bureau of Investigations Division of Forensic Sciences reports drug levels in mg/L (milligrams per liter), but Winek’s chart is reported in micrograms per milliliter. You do not need to know much about the measurements, but you do need to know that there is a difference in the unit of measurement. Do not be caught off guard with this difference.

How Do We Effectively Defend DUI Cases in Which Our Clients Did All of The Tests?

Yes, we have a track record amongst judges, prosecutors, and other lawyers of defending exceptionally difficult cases, including those in which our client submitted to all DUI field sobriety tests and the blood or breath test after arrest.

It Is Essential that Evaluate and Challenge the Admissibility of Field Sobriety Test Evidence and Blood, Breath, or Urine Test in Your Case.

Before we begin to try to make a decision about how your field sobriety test evidence or your blood or breath test result evidence should be challenged at trial before a judge or jury, we need to challenge the admissibility of this evidence. If the evidence is not going to be admissible in your DUI trial, then we do not need to worry about it should be explained to a judge or a jury.

In Georgia DUI cases, any number of field sobriety tests (FSTs) may be used. In most larger areas, we see only standardized field sobriety tests, and in areas where less DUI arrests are made, we are more likely to see non-standardized field sobriety test. Field sobriety tests must be addressed in the defense of a DUI case because they have an appear objective and scientific. It is essential that your DUI attorney expose the unreliability and subjectivity of field sobriety tests.

THE PURPOSE AND LIMITATIONS OF FIELD SOBRIETY TESTS IN DUI CASES

Most courts throughout the United States have correctly held that field sobriety tests used in DUI cases are not the equivalent of chemical analysis methods, such as breathalyzers or blood tests. Field sobriety tests are not scientifically reliable to predict a person’s blood-alcohol concentration. The purpose of DUI field sobriety tests is to assist officers in screening people that may be under the influence. The field sobriety tests are intended to be tools for evaluating probable cause for a DUI arrest. The irony, of douse, is that the tools that were intended to be used for a probable cause evaluation in a DUI case are frequently relied upon as proof beyond a reasonable doubt of impairment.

TYPES OF DUI FIELD SOBRIETY TESTS

We can generally put DUI field sobriety tests into four (4) categories. Within those 4 categories of field sobriety tests, there are performance tests, and there are eye tests. Of the performance tests, 2 are primarily physical performance field sobriety tests, and 1 is a mental field sobriety tests. A physical and a mental test may be combined into one exercise as a divided attention test. The 4^thtype of field sobriety test consists of eye impairment tests.

BALANCE PERFORMANCE FIELD SOBRIETY TESTS

The most commonly used balance performance field sobriety tests are the walk-and-turn, the leg raise (or one-leg stand), and the modified position of attention test. To illustrate how these tests work, consider the common practice among officers administering balancing tests to “fail” a suspect because he raised his arms during performance. Using your arms for balance is a natural, instinctive thing to do.

The client’s physical ability to perform field sobriety tests should always be considered. Medically diagnosed limitations should always be a consideration in evaluating performance of DUI field sobriety tests, but other relevant (undiagnosed) factors that may impair balance or coordination must also be considered. The DUI attorney that relies solely upon diagnosed conditions may be vastly underestimating the presence of common symptoms such as dizziness and vertigo, which rank among the most frequent complaints in primary care but remain unexplained in 40% to 80% of cases. Dizziness and vertigo are frequent symptoms in the general population – affecting approximately 23% of adults in some studies.

BALANCE PERFORMANCE FIELD SOBRIETY TESTS: THE WALK-AND-TURN TEST

The walk-the-line test has been transformed to the walk-and-turn test. The walk-and-turn test is almost certainly the most commonly used DUI field sobriety test. In the walk-and-turn field sobriety test, an officer has the client walk along a line or crack in the pavement in a heel-to-toe manner and, at the end of the line, the client is directed to pivot and return.

During the cross-examination of an officer that administers the walk-and-turn test, there is generally some fun to be had with the officer’s testimony that the client walked off the imaginary line: the line envisioned in the officer’s mind was not the same line that the defendant had mentally drawn and followed.

BALANCE PERFORMANCE FIELD SOBRIETY TESTS: THE ONE-LEG STAND TEST

The one-leg-stand field sobriety test requires the suspect to stand on one leg for approximately 30 seconds while the other leg is elevated approximately 6 inches off the ground. In practice, you may seen the one-leg stand test administered in a vary of different way. It is called a  “divided attention” test because the suspect is also told either to (1) count to 30 in a 1001, 1002, 1003… manner, (2) put his leg back down after 30 seconds have passed, (3) count backwards from a number such as1,000, or (4) recite the alphabet. We will discuss the standardized administration and clues for the one-leg stand test in a subsequent post.

BALANCE PERFORMANCE FIELD SOBRIETY TESTS: THE MODIFIED POSITION OF ATTENTION

In the modified position of attention test the suspect is asked to assume a rigid position of attention with his head tilted back and eyes closed. This is also a divided attention test in that the suspect is generally asked to estimate the passage of 30 seconds while maintaining this position. Frequently, the modified position of attention test will be called the Romberg/Rhomberg test.

COORDINATION PERFORMANCE FIELD SOBRIETY TESTS: THE FINGER-TO-NOSE TEST

In the finger-to-nose field sobriety test, the suspect is asked to assume a position of attention, tilt his head back, and touch the tip of his right index finger to the tip of his nose. Then, this process is repeated with the left index finger. A recurring problem that we see in these tests is that the administering officer instructs the suspect to touch his nose with his finger, and then proceeds to fail the suspect because he did not touch the tip of his finger to the tip of his nose. This is more a failure of communication than is a sign of impairment.

The finger-to-nose field sobriety test is a test that we common see in boating under the influence cases.

COORDINATION PERFORMANCE FIELD SOBRIETY TESTS: THE FINGER-TO-THUMB (FINGER COUNT) TEST

coordination test in which the suspect is told to touch the thumb of one hand to the little finger of the same hand, then to each of the remaining fingers and back again to the little finger in quick succession.

Counsel will find that if his client performed satisfactorily, the officer will often claim that he failed because he performed it “too slowly,” although instructions as to speed are often not given.

The finger-to-thumb field sobriety test is a test that we common see in boating under the influence cases.

COORDINATION PERFORMANCE TESTS: THE HAND-PAT TEST

The suspect is instructed to hold one hand palm up, then pat the palm alter­nately with the back and palm of the other hand in a rapid but smooth motion. The officer fails the suspect for “chopping,” “clapping,” or going too slowly.

As with other field sobriety tests, it is not uncommon for the officer to give incomplete or inaccurate instructions and/or a rushed demonstration.

The hand-pat field sobriety test is a test that we common see in boating under the influence cases.

COORDINATION PERFORMANCE TESTS: THE COIN PICKUP TEST

The arresting officer drops a coin or coins on the ground and instructs the suspect to pick them up.

The suspect fails if he or she has any difficulty in collect­ing the coins.

MENTAL ABILITY FIELD SOBRIETY TESTS

Used in conjunction with performance tests or independently, the third cat­egory tests an individual’s mental agility.

• Reverse Counting

In this field sobriety test, the suspect is told to count from one to ten and then back down to one; a variation is to have him begin at one hundred or one thousand and count down until told to stop.

• ABC Test

This is a mental agility test asking the individual to recite the alphabet very quickly.

It is a rare case in which the officer will not testify that the defendant skipped over some letters, or had to stop halfway through and start again.

• Written Alphabet Test

The suspect here is asked to write the alphabet on a piece of paper, and then to authenticate it with his or her signature.

This is a test of both physical and mental ability: the focus can be on either the correctness of the alphabet or the handwriting itself-

The prosecutor will view this as valuable physical evidence, independently corroborating the officer’s testimony. However, if handled correctly by your defense lawyer, it represents a very effective way to discredit the officer.

• Ocular Tests

4^th category does not involve performance of tasks by the suspect,

but consists of determining whether there has been functional impairment of the suspect’s eyes.

These types of FSTs are particularly damaging because seemingly scientific nature.

The two prevalent tests here are pupil reaction and gaze nystagmus.

• Nystagmus

This is the “newest” of the field sobriety tests commonly  —potentially most damaging —of field sobriety tests is nystagmus or, more accurately, horizontal gaze nystagmus.

test involves the officer observing the movement of the suspect’s eyeball on a lateral plane: when nystagmus (eye jerking) begins (referred to as “onset of nystagmus”), whether there is a uniform movement (“smooth pursuit”), and whether the eyeball jerks in a different fashion when back as far as it can go (“distinct nystagmus at extremes”).

Georgia DUI License Suspension

Most people charged with a DUI in Georgia receive a DDS Form 1205. The Form 1205 serves as a temporary driver’s license when signed by the officer.  The temporary permit is valid for 30 days after the date of arrest – unless a request for hearing is filed upon the suspension.

A temporary permit is not issued by the arresting officer if a DUI suspect does not possess a valid license at the time of arrest.

A DDS Form 1205 is issued if a suspect is arrested for violating Georgia’s DUI law (O.C.G.A. §40-6-391), the arresting officer requests a state-administered chemical test,  and:
– the driver refused implied consent, OR
– chemical tests indicated a BAC of .08 grams or more for a driver 21 years of age or older, OR
– chemical tests indicated a BAC of .02 grams or more for a driver under 21 years of age, OR
– chemical tests indicated a BAC of .04 grams or more for a driver operating a commercial motor
vehicle.

See also our informational page on Georgia DUI driver’s license administrative licenses.

Reinstatement of a Georgia Driver’s License after a DUI Conviction

• First Conviction (within 5 years) Plea of nolo contendere – Will not avoid the license suspension. Suspension – Yes; 180 day period beginning on effective date. Limited Driving Permit – Maybe; only if adjudicated in an official accountability court and meet the requirements of O.C.G.A. §40-5-76(a). Reinstatement Requirements: • Submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Risk Reduction Program; • Remit a $210.00 reinstatement fee (or $200.00 if processed by mail).
• Second Conviction (Within 5 years) Plea of nolo contendere –Will not avoid the license suspension. Suspension – Yes; 1 year period beginning on effective date. Limited Driving Permit – Maybe; only if adjudicated in an official accountability court and meet the requirements of O.C.G.A. §40-5-76(a). • Submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Risk Reduction Program; • Remit a $210.00 reinstatement fee (or $300.00 if processed by mail).
• Third Conviction (Within 5 years) Plea of nolo contendere – =Will not avoid the license suspension. Suspension – Yes; 5 year period beginning on effective date Limited Driving Permit – No. However, the licensee may make application for a probationary license pursuant to O.C.G.A. §40-5-58 after a minimum suspension period of 2 years after the date of conviction of the underlying DUI. Reinstatement Requirements: • Submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Risk Reduction Program; and, • Remit a $210.00 reinstatement fee (or $400.00 if processed by mail).

“Serious Injury” Defined in Georgia DUI Cases

Accidents resulting in serious injuries or death that involve alcohol or drug consumption are among the most intensely prosecuted and litigated cases in criminal law. The reason for the intensity of the prosecution of these offenses is clear and need not be discussed at-length here. Our purpose is simply to inform you of the various elements which must be proved by the state in the serious injury or death case.

A critical element in the serious injury by vehicle case involving an alleged DUI offense (also referred to as DUI – Serious Injury) is the admissibility of the state-administered chemical test. In this article, I will not attempt to address each of the issues which I consider in evaluating the admissibility of the state-administered chemical test in a DUI serious injury case. Instead, this article will simply be the first of a series of posts on this subject.

Why is the admissibility of the state-administered chemical test so important in the defense of the Georgia DUI serious injury case?

The answer to this question is relatively straightforward: without the state-administered chemical test, the prosecution generally has very little evidence of impairment or intoxication in the DUI serious injury case. Because the DUI serious injury case generally involves an accident (generally, a high-impact and traumatic accident), most of clients involved in DUI serious injury cases are not good candidates for balance and coordination tests that are generally relied upon by officers to demonstrate impairment by alcohol or drugs in DUI cases.

One of the first issues that must be addressed in this class of DUI case is whether the injury meets the definition of a serious injury. O.C.G.A. § 40-5-55, Subsection (c) defines a serious injury:

As used in this Code section, the term “traffic accident resulting in serious injuries or fatalities” means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.

Georgia DUI Roadblocks

DUI roadblocks in Georgia and, more generally, roadblocks in Georgia continue to be of questionable validity following the Georgia Supreme Court’s rulings in Brown and Williams. The Charales case affirms this trend against the validity of DUI roadblocks in Georgia.

It is difficult to prepare for a DUI roadblock motion hearing if you do not have the underlying documents that were the basis for the establishment of the roadblock.  Many lawyers do not understand that department protocols may require documentation of the means by which the roadblock was established and documentation of the events that occurred during the roadblock.  If these documents are available, you have an important opportunity to develop the issues in your DUI case prior to the motions hearing.  Below is an example of standard open records request for roadblock information:

Re: Open Records Request for All Polices, Guidelines, and All Other Written Memoranda or Notes Regarding the Implementation of Roadblocks by the Fayetteville Police Department or Roadblocks in which Officers of the Fayetteville Police Department Participate;

Open Records Request for All Notes, Memoranda, Directives, Guidelines, and All Other Written Documentation Regarding the Roadblock in which Officers of the Fayetteville Police Department Participated in on April 15, 2009 on Georgia Highway 85.

Dear Records Custodian:

Pursuant to O.C.G.A. § 50-18-70 et seq. (Georgia’s Open Records Act), please provide full and complete copies of each of the documents, records, and recordings identified above.

Please contact me if I need to remit payment for this request in advance.  Thank you for your kind assistance

Do Not Make This Huge Mistake in The Handling of The Administrative License Suspension Part of Your DUI Case.

Transcript:

One thing that I see continually in DUI cases, that absolutely is preventable that’s absolutely ridiculous that any lawyer would do, but that people obviously are continuously doing this is they’re making agreements at the administrative license suspension hearing, for their clients to plead guilty in a breath test case. There is absolutely no reason to do that. All that it takes is a little bit of communication between the lawyer and the client so the client understands that this is a suspension with a limited permit for thirty days and they’re fully eligible for reinstatement license if they completed the DUI school and pay reinstatement fee. They’ll also get credit for time towards the suspension if they’re ultimately convicted of the DUI case. What I see is that the lawyers are now after Elliott, the vast majority of breath tests are being suppressed, excluded from evidence by the trial courts. And then, you’ll have the solicitor the prosecutor who comes back and says, well I still want to try to introduce evidence of the agreement to plead guilty from the ALS. It’s just a whole confusing mess that was completely preventable that never should have happened in the first place. I mean there’s no reason at all to enter into that sort of agreement in a breath test case. The only case in which an agreement is possible, that you should really consider it, is in a refusal case and that’s because you face the possibility of a hard license suspension with no limit of permit whatsoever for twelve months.

If you’re in that situation I can understand that a lawyer advising their clients to negotiate for a guilty plea at the ALS hearing, so that they can save their license. But if you’re in a breath test case particularly of first lifetime DUI breath test case, there’s no reason at all why you should be entering into that agreement. Almost every lawyer who actually defends DUI cases would tell you that if you’ve got a breath test with a really experienced officer, the vast majority of them are just going to withdraw that suspension and that’s because it’s not worth the time, the effort to go through an hour hearing in the administrative license suspension, just to have that sort of suspension imposed, with limited permit for thirty days and then full reinstatement. It’s just generally not worth it. And then second if you do have to actually go through the hearing is usually helpful to you. You’ll learn a lot about the officer, you’ll learn a lot about the case, and you’ll learn it prior to the criminal case even be initiated.

So, if you are a client and you have your lawyer is entered into that sort of agreement or advised you to enter into that sort of agreement, really reconsider whether or not that person is competent handling your case. That is not the sort of agreement that a person who really understands what’s going on in these cases would do. Second, if you’re a lawyer who’s doing that, who’s entered into those sort of agreements at the administrative license suspension hearing in breath test cases, don’t do it anymore. Really reconsider your course of action because strategically it just doesn’t make any sense at all. If you have any questions about these issues feel free to call me, my name is Ben Sessions.

What Is the Administrative License Suspension Part of My DUI Case?

The administrative license suspension case is probably the least understood part of the DUI case, and it is unquestionably one of the most important parts of the case because it can impact your driver’s license severely. The Georgia Office of State Administrative Hearings is responsible for conducting hearings on the administrative license suspension action initiated by the Georgia Department of Driver Services.

How Does Your DUI Lawyer Negotiate the Best Possible Result in Your Case: Things that Your Lawyer must Do

Most people that have been charged with a DUI want to avoid a jury trial. It’s not always possible to avoid a trial – some cases just cannot be worked out amicably. However, we need to do our very best to capitalize upon negotiation opportunities when they arise. Frequently, in DUI cases, negotiations take place in the presence of the arresting officer, so your lawyer – not you, needs to be prepared with how to negotiate cases with the arresting officer:

Did You Know that There Are 2 Different Types of Breath Tests – Preliminary Breath Tests and State-Administered Breath Tests – Typically Used in Georgia DUI Investigations?

There are 2 different types of breath tests – preliminary breath tests and state-administered breath tests – typically used in Georgia DUI investigations.

PRELIMINARY BREATH TESTS

• Term “preliminary breath test” (PBT), sometimes called “alcohol screening device” (ASD) or “passive alcohol sensor” (PAS), covers a variety of different instruments increasingly being used by police officers in the field to obtain initial indications of blood-alcohol levels.
• Some of these devices are used primarily to detect the presence of alcohol in the subject, or to roughly determine a “pass” or “fail” level (or, in some instances, an intermediary “warn” level). If the instrument indicates that alcohol is present in the subject, or it reflects a possibly high blood-alcohol level by using reading “fail,” the officer can use this information in deciding whether to detain the individual for further field sobriety tests or even to arrest him for more accurate blood, breath, or urine testing. Other PBTs, however, indicate specific levels blood-alcohol concentration.
• Two types of PBTs, both designed to measure alcohol on the breath: fuel cell devices and Taguchi gas sensor
• The fuel cell device measures ethanol by electrochemically oxidizing it, or “burning it up,” in a fuel cell. This oxidation generates a small amount of electrical current, which is then measured over a specific period of time. The more ethanol there is in the breath, the greater the oxidation and the more current is generated, resulting in a higher blood-alcohol reading.
• The primary problem with fuel cell devices is their lack of specificity: The devices will detect a large number of chemical compounds, indiscriminately “reading” them as ethanol. Jones &Goldberg, “Evaluation of Breath Alcohol Instruments I: In Vitro Experiments with Alcolmeter Pocket Model,” researchers found that an “Alcolmeter Pocket Model” reacted positively to ethanol^__ as well as to acetaldehyde, methanol, isopropanol, and n-propranolol.
• fuel cell PBTs are subject to a number of additional flaws. As with any breath-testing device, the possibility of “mouth alcohol” always exist^__ and requires an observation period of 15 to 20 minutes to ensure that there has been no belching, burping, or regurgitation.
• Fuel cell PBTs are also subject to a buildup of oxide film, or “poisoning,” on the electrode, causing false readings.
• Very sensitive to operating temperature. Counsel should always determine whether the officer checked (and recorded) the device’s operating temperature at the time of the test^__ or if the device even has a temperature gauge.
• The usage logs (not to mention the calibration/maintenance records) of the PBT used on the client should be obtained in the course of discovery, and the time of any previous test determined. If the PBT was used with another suspect a few minutes before (as may be common at a sobriety checkpoint), there is a very real possibility that the client’s reading has been contaminated. The fuel cell device requires time for the reaction products are still present, they will be oxidized in the client’s test, creating current flow that will increase the blood-alcohol reading.
• The Alcohol Sensor III – Researchers concluded that the device, utilizing an electrochemical fuel cell, was definitely not sufficiently accurate for use in evidentiary testing and, in fact, should be used with caution as a preliminary testing device.

Taguchi

• Taguchi gas sensors are small porous stannic oxide semiconductor elements. Alcohol in the breath is attracted to the sensor, increasing its electrical conductivity; the more alcohol, the more electricity flowing and the higher the reading.
• Two types of ASDs using Taguchi sensors: active and passive. The active devices involve capturing a breath sample from the suspect with the use of a mouthpiece; passive units do not.
• Both types have the same problem with specificity as the fuel cell devices. Specifically, Taguchi units will detect (and register as ethanol) methanol, acetic acid, ethylene glycol, paraldehyde, acetaldehyde, isopropanol, and other compounds. A second problem common to both active and passive Taguchi devices is that sensitivity varies according to the temperature in the environment and in the unit. In addition to these problems, passive devices will register alcohol in the air, such as from the breath of passenger in the suspect’s car. The cumulative effect of all these problems in the passive device is reflected in a scientific study in which field trials showed that only one-fourth of all subjects who tested positive on the devices had, in fact, blood-alcohol concentrations of .10 percent or higher; another one-fourth had levels below .05percent.
• Life-Loc PBA 3000, typical of the passive Taguchi sensor, is built into the head of a modified police flashlight. The flashlight is held approximately five to seven-and-a-half inches from the subject’s mouth and an electronically controlled pump draws in a breath sample. An ultrasonic device then corrects the reading for the distance from the sensor to the subject.The sensors can be set so that the messages are triggered by given BACs, for example, “pass” can be set from .00 to .29, “warning” from .03 to .09, and “fail” for any reading higher than .10.
• Inherent problems. First, it may be reading vapors from sources other than the subject’s breath. Second, the device is only sampling exhaled breath, and at a distance; any kind of accuracy requires that the breath consists of alveolar^__ that is deep lung air.

• Actual sobriety checkpoint in Washington, D.C. The results: 20 percent of those detained after using the IIHS sensor subsequently proved to have levels below the legal limit (below .10 percent), while 41 percent of those detained with the Honda units proved to have unacceptably low levels.
• That state is apparently making plans to use handheld breath-testing devices as evidential breath test instruments. In other words, steps have been taken to phase out current PBT devices as well as the evidential machines currently found in police stations and replace them with a single new handheld unit, that accomplishes the functions of both.
• California Department of Justice to the California Association of Toxicologists Newsletter and printed in its February 1999 edition:

The Alcotest 7410 Plus hand-held breath analyzer with “Smart Cal” and PC software, is the result.

This California version of the Draeger 7410, the “7410 Plus,” varies from the standard model primarily in using a special software, “Smart Cal.” With the capacity to give the tests in the field, of course, retrograde extrapolation will cease to be a significant problem.

First, it appears that the new device is not currently designed to incorporate a mouth alcohol detector. Second, there is also, apparently, only a very primitive Radio Frequency Interference (RFI) detector planned for the device.

The Alco-Sensor

• most commonly used preliminary breath test (PBT) instruments appear to be Intoximeter’s Alco-Sensor model IV (by the makers of the Inbox EC/IR® II.)
• The accuracy of the Alco-Sensor has been tested in the laboratory. The device, utilizing an electrochemical fuel cell, was definitely not sufficiently accurate for use in evidentiary testing and, in fact, should be used with caution as a preliminary testing device.
• It uses a fuel cell, consisting of five layers of material compressed into a wafer and soaked with an electrolyte, to analyze alcohol in the breath. An electrical piston pump within the device draws one cubic centimeter of breath into the fuel cell for analysis. The captured breath vapor is exposed to the active surface of the fuel cell and, through oxidation, any alcohol releases electrons that create an electronic flow along a conductor and out of the fuel cell. The device can be used every 15 seconds if no alcohol is encountered; a two-minute wait is required if there is a positive reading.
• According to the Intoximeters website,

[t]he instrument utilizes an electrochemical sensor (fuel cell) to quantify alcohol in the provided sample. The fuel cell is a porous disk with a thin layer of platinum black on both faces. The disk is saturated with an electrolyte and mounted in a valve assembly that is designed to draw a fixed volume sample across the surface of the fuel cell. When a subject’s breath sample is drawn across the top surface of the cell, any alcohol that comes in contact with the cell’s surface is broken down chemically. For each molecule of alcohol that is broken down a given number of electrons are freed during the process. The number of electrons generated is in proportion to the amount of alcohol in the sample. By measuring the number of electrons (the resulting electrical signal) a digital BrAC (Breath Alcohol Concentration) is calculated and reported.

Possible Problem Conditions for the Alco-Sensor

• Some possible sources of error noted by the manufacturer include: (1) The manual warns that “a recent drink of an alcoholic beverage or regurgitation could introduce ‘mouth alcohol’ to the breath, causing an exaggerated reading. A 15-minute waiting period prior to testing will insure the elimination of ‘mouth alcohol.’” (2) Any cigarette smoke blown into the device “will permanently damage the fuel cell.” (3) “Sufficient time after each test must be allowed for all traces of alcohol on the cell surface to be eliminated…. Even when exposed to breath samples with high alcohol levels, a cell should clear within 2 minutes.” (4) New mouthpieces must be inserted with each new test, or alcohol from the previous user can elevate the reading. (5) Monthly calibration checks are recommended.

Defense Use of Favorable PBT Evidence

In most jurisdictions, evidence of preliminary breath test results are not admissible in trial.

Consider, however, the reasoning in an Arkansas case, Patrick v. State. The appellate court accepted the defendant’s reasoning that since the PBT results were considered sufficiently reliable to establish probable cause to arrest him, they are sufficiently reliable to be admitted as exculpatory evidence.

This is consistent with the decision in Rock v. Arkansas, where the U.S. Supreme Court held that evidence of hypnosis offered by the defendant was admissible, even though it would not be admissible if offered by the prosecution. The Court reasoned that prohibiting such evidence effectively precluded the defendant from presenting a defense. In order words, an accused’s constitutional right to present evidence in his defense rises to a higher level than the prosecution’s “right” to present evidence against him, and, thus, the standards for admissibility should reflect this.

Counsel should consider filing a motion in limine to obtain an advance ruling as to the admissibility of the intended evidence.

Preliminary Breath Test Results in Georgia DUI Cases

Over the past decade or so, the Georgia DUI defense bar has made a concerted effort to inform the public of certain rights that they have during a DUI investigation.  Despite this effort, most of the public and some lawyers have a great deal of confusion about what preliminary breath test results may be used for.  Holler v. State, 224 Ga. App. 66, 479 S.E.2d 780 (1996), which remains undistinguished by in Georgia, is the case that clarifies the permissible purposes of preliminary breath tests in DUI investigations:

At trial the State in essence argued that, although numerical test results are not admissible at trial, an exception should begranted for the admission of this evidence at a suppression hearing for purposes of establishing probable cause for a DUI arrest. As a general rule, the numerical results of an alco-sensor test are not admissible in evidence, as the results of an alco-sensor test are not used as evidence of the amount of alcohol or drug in a person’s blood. See Keenan v. State, 263 Ga. 569, 571(2), 436 S.E.2d 475; Porche v. State, 217 Ga.App. 325(1), 457 S.E.2d 578; Turrentine v. State, 176 Ga.App. 145, 146(1), 335 S.E.2d 630; see also Ayers v. City of Atlanta, 221 Ga.App. 381, 382(3), 471 S.E.2d 240. Even the characterization of the results of an alco-sensor test as “high” has been held to constitute inadmissible evidence of the degree of a suspect’s intoxication. Sturdy v. State, 192 Ga.App. 71, 383 S.E.2d 632. However, evidence can be admitted, as was allowed in this case, as to whether a suspect tested positive or negative, or passed or failed, an alco-sensor test; this is consistent with the use of an alco-sensor “as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” Turrentine, supra at 146(1); see Sturdy v. State, supra. Evidence also is admissible whether a suspect re- fuses to submit to an alco-sensor test. Keenan, supra at 572(2), 436 S.E.2d 475.

A trial court is vested with wide discretion in determining the admissibility of evidence. Spencer v. State, 260 Ga. 640, 646(8), 398 S.E.2d 179. Admission of evidence is a matter resting largely within the discretion of the trial court; an appellate court will not interfere with a trial court’s ruling as to evidence admissibility absent an abuse of discretion. Gully v. Glover, 190 Ga.App. 238, 241(4), 378 S.E.2d 411; Santone v. State, 187 Ga.App. 789, 793, 371 S.E.2d 428. The State has failed to show an abuse of discretion by the trial court in following the general rule and declining to allow evidence as to the numerical score appellee received on an alco-sensor test to be admitted in evidence at a suppression hearing. See Porche, supra; cf. Mendoza v. State, 196 Ga.App. 627, 629(3), 396 S.E.2d 576. Accordingly, we will not interfere with that ruling. Gully, supra; Santone, supra. Further, as an alco-sensor test is not used as evidence as to the amount of alcohol or drugs in a person’s blood, we decline this opportunity to create a blanket exception which would serve as precedent for making alco-sensor numerical test results admissible (for the limited purpose of establishing probable cause to arrest) at all future suppression hearings. The State’s assertion of error as to this matter is without merit.

GEORGIA DUI BREATH TEST RULES – GBI REGULATIONS

Below are the rules adopted by the Georgia Bureau of Investigation for the issuance of breath testing permits. These rules and others adopted by the GBI provide an opportunity to develop defenses in a Georgia DUI case. However, whether issues exist with regard to the validity of Intoxilyzer 5000 operator’s permit are frequently overlooked by the “casual” DUI practitioner. Wouldn’t you like to know if the breath test operator in your case was properly permitted to perform your breath test?

 

Were you charged with a DUI on a Work VISA?

Are you in the U.S. on a work VISA and charged with a DUI? This is one of the most common and very difficult situations that I deal with in the context of DUI cases. Our clients that face immigration consequences in addition to the DUI charge most frequently arise in the context of a person who is here on a work-related Visa – some sort of type of work visa and they’re here in the  country legally and they receive a DUI charge. These people are justifiably concerned about how this will affect their ability to stay here and potentially become a citizen later on. And I can tell you that the one thing that you really need to do and really focus on, if  you are in the U.S. on a work VISA and charged with a DUI, there must be a real working relationship between the lawyer who’s handling your DUI and the lawyer who’s handling your immigration consequences. I firmly believe this.

You should not have a lawyer that’s doing both of those. Your a lawyer who’s handling the DUI should be focused on that part of the case and be very specialized in the handling of that part of the case. And your lawyer who’s handling the immigration consequences should also be very specialized in handling that aspect of your problems. Neither of these areas of law are ones that you want some lawyer who’s handling both and kind of dabbling in both in trying to handle them. I just find that lawyers who are doing that are not devoting the attention that’s needed to get the best results that you need in those types of cases and there’s really nuanced kind of issues that arise in the context of those cases that could really affect it. For example, I met with a client today who is here on a work-related visa, gets a DUI charge and one of the issues that we have I think in the jurisdiction in which this case is pending, I’m going to be able to get probably a reckless driving disposition fairly quickly if he decides that he wants to take it.

That client then is stuck with the possibility of do I resolve this case very quickly to a reckless driving non-DUI disposition or do I potentially string the case out and get a better result later on down the road? If I were to transfer the case out of municipal court into state court, the difference between those two, one you’ve got a certain result in the court in which is pending. If I can get a record Straub and on the table for him, but I also can resolve the case much quicker there and him have the case closed out in the event that he’s applying for citizenship down the road and 1824 months or less. Say for example that I moved the case out of that court, try to get a better result. We may or may not get that done, but then the case potentially could be open for another 18 to 36 months.

That can make a huge difference. And if your lawyer didn’t understand the procedural irregularities there in terms of the time that’s involved in the time in which the case will be open, that might be something that you kind of glossed over and you wouldn’t realize until later on in the case that this is something that’s really going to gotta be important. And you need to have an immigration lawyer who’s also going to be able to advise you about is an open pending case going to hinder or block my ability to get citizenship later on or potentially renew my visa later on. Those are questions that you need to have the lawyers actually communicating amongst each other and you need to have lawyers who actually are skilled and understand these nuances of the cases. So, I truly do believe that you need lawyers that are working together and you need lawyers who are specialized in both of those practices of area practices of law. If you’re actually going to get a really good result and avoid some of the pitfalls that can inevitably come from a person who’s facing both immigration consequences and a DUI. If you have any questions, feel free to call me. My name is Ben sessions. My phone number is (470) 225-7710 again, (470) 225-7710 thank you.

Bench or Jury trial in your Georgia DUI case?

There is a movement taking place across this country to take away the right to trial by jury in DUI cases. Georgia law continues to provide those charged with DUI here with the right to a trial by jury on every DUI charge. Therefore, a person charged with DUI can always elect to go forward with a jury trial. On the other hand, an accused can attempt to go forward with a bench trial, but the state may prevent the defendant from setting the case for a bench trial in some cases.

Some lawyers intuitively think that one would never move forward to a bench trial when the defense is premised upon the burden of proof (proof beyond a reasonable doubt) as to the defendant’s state of impairment. Such lawyers typically believe if the issue is whether our client was impaired, a judge is not the proper avenue for an acquittal (not guilty). This is right in most cases, but what if your case were in front of a judge that would be as favorable as any jury? What if you could eliminate a lot of the uncertainty that accompanies a jury trial? What if the election to have a bench trial instead of a jury trial trial would significantly reduce the probability that the court would impose a draconian sentence in the event of a guilty verdict?

As a practical matter, the decision as to whether try a case in front of a jury or a judge is a difficult decision that can only be intelligently made with a consideration of a multitude of various facts. Experience counsel that understands the judge and whether or not the judge can apply the burden of proof in a DUI case is a difficult matter to judge. However, experienced DUI lawyers recognize that we cannot flatly reject the notice that a bench trial is the appropriate choice for a trial.

Use of Refusal of Field Sobriety Tests Against You in a GA DUI Case

One of the things that we’re looking at in the aftermath of the Elliott case in Georgia is how it is that it will affect other parts of the DUI case. So, there’s a case Mitchell versus State, I actually handled it in 2017 where we litigated whether or not the State could admit a person’s refusal to submit to field sobriety tests in the case against them. A challenge, the admissibility of the refusal to submit the fields on fourth amendment grounds. There’s a lot of cases in Georgia that say that you cannot comment upon a person’s refusal to submit to a search, pursuant to the fourth amendment. So, a person has a constitutional right to withhold consent to a search in any given case and that State can’t turn around and use that against them at trial. That’s sort of a basic principle of Georgia evidentiary rules. That’s just the way that our law has developed.

I challenged whether or not field sobrieties were in fact a search. And then whether or not you could use a person’s refusal to submit to that search against it. The court went through this whole lengthy discussion and found, ultimately that refusal of fields sobrieties, they were not in fact a search and therefore you could comment on that, pursuant to the fourth amendment, it was not a constitutional violation for you to comment on that refusal to submit to field sobrieties. I did not challenge them on the self-incrimination grounds of the Georgia constitution. That would have been the appropriate grounds to challenge them on. Aldrich versus State directly address this in a case that dealt with a defendant pre arrest being required to drive his truck, perform an act of driving his truck upon scales. And if I had challenged that under Aldrich and subsequently based upon Elliot, what we would have found is that I probably would’ve gotten a different result out of that part of the Mitchell case. So, whenever you have a client who refuses it, refuses to submit to field sobriety tests, make sure that you’re challenging that on self-incrimination grounds under the Georgia Constitution, paragraph 16.

If you’re raising that challenge, then you’re almost certainly going to have a result where the judge says, no State, you cannot use a person’s refusal to submit to field sobrieties pursuant to the self-incrimination provision of the Georgia Constitution, which protects you against both acts and statements. So, that’s the grounds that you really need to challenge the admissibility of that evidence. It’s also really important that you recognize that this challenge, based upon compelled acts you cannot be required to perform, or compelled to perform acts that may be incriminating against you, does not require a person to be in custody. So, many people have a misunderstanding of paragraph 16 and whether or not it applies to both pre arrest and post arrest acts. And the answer is absolutely, it applies to pre arrest acts as well. So, it does not require any way, shape or form that you be under arrest in order for that protection to allot to, for you to rely upon that. So, don’t be concerned about that at all, if that’s, if that’s what your, what your issue is.

Key Terms for Georgia DUI Cases That You May Want to Know

• BAC (Blood Alcohol Concentration): The percentage of alcohol in a person’s bloodstream.
• Per Se Limit: The legal BAC limit in Georgia is 0.08% for drivers 21 and over.
• Implied Consent: Georgia law requires drivers to submit to chemical tests to determine BAC.
• DUI (Driving Under the Influence): Operating a vehicle while impaired by alcohol or drugs.
• DUI Less Safe: A charge based on impairment, even if BAC is below 0.08%.
• Field Sobriety Tests: Tests performed by police to assess a driver’s impairment.
• Horizontal Gaze Nystagmus (HGN): An eye test used during field sobriety tests.
• Walk-and-Turn Test: A field sobriety test that evaluates balance and coordination.
• One-Leg Stand Test: A field sobriety test assessing balance.
• Breathalyzer: A device measuring BAC through breath samples.
• Intoxilyzer 9000: The official breath-testing device used in Georgia.
• Blood Test: A test measuring BAC from a blood sample.
• Urine Test: A test for detecting drugs or alcohol in urine.
• Chemical Test Refusal: Refusing to submit to BAC testing, leading to penalties.
• Administrative License Suspension (ALS): Suspension of driving privileges before a DUI conviction.
• Hard Suspension: A period during which no limited driving permit is available.
• Limited Driving Permit: A permit allowing driving under specific conditions during suspension.
• Ignition Interlock Device (IID): A device preventing a vehicle from starting if the driver’s BAC is above a set limit.
• DUI Court: A specialized court handling DUI cases with an emphasis on rehabilitation.
• Nolo Contendere (No Contest Plea): A plea where the defendant neither admits nor disputes a charge.
• Probation: A period of supervision instead of jail time.
• Reckless Driving: A lesser charge that can sometimes be pleaded down from DUI.
• Vehicular Homicide: Causing a death while driving under the influence.
• Serious Injury by Vehicle: Causing serious injury while driving under the influence.
• Open Container Law: Laws prohibiting open alcohol containers in the passenger area of a vehicle.
• Zero Tolerance Law: Laws setting BAC limits at 0.02% for drivers under 21.
• DUI Child Endangerment: DUI charge when children are present in the vehicle.
• Commercial Driver’s License (CDL): Special license for commercial drivers with stricter BAC limits.
• Drug Recognition Expert (DRE): An officer trained to identify drug impairment.
• Horizontal Gaze Nystagmus (HGN): An involuntary jerking of the eyes used as a sobriety test.
• DUI Alcohol Less Safe: A DUI charge when alcohol impairs driving but BAC is below 0.08%.
• DUI Drugs: Operating a vehicle under the influence of drugs.
• DUI Drugs Less Safe: A DUI charge when drugs impair driving but aren’t necessarily illegal.
• DUI Per Se: A DUI charge when BAC is 0.08% or higher.
• Misdemeanor DUI: A less severe DUI charge, often the first offense.
• Felony DUI: A more severe DUI charge, often for repeat offenses or cases involving injury/death.
• SR-22 Insurance: A certificate of financial responsibility required for reinstating a suspended license.
• Alcohol Education Program: Court-ordered classes for DUI offenders.
• Victim Impact Panel: A program where DUI offenders hear from victims of drunk driving.
• Administrative License Hearing: A hearing to challenge the suspension of driving privileges.
• Expungement: The process of sealing a criminal record.
• Look-back Period: The time frame in which prior DUI offenses are considered for sentencing.
• License Reinstatement: The process of getting a suspended license back.
• Driving Under the Influence of Prescription Drugs: DUI involving legal but impairing prescription drugs.
• Sobriety Checkpoints: Police roadblocks set up to check drivers for impairment.
• Alcohol Sensor: A device used to detect the presence of alcohol in a person’s breath.
• Legal Limit: The maximum legal BAC for drivers (0.08% for adults).
• FST (Field Sobriety Test): Physical tests to assess impairment.
• First Offender Act: Georgia law allowing first-time offenders to avoid a conviction on their record.
• Restricted License: A license with limited privileges issued after certain DUI offenses

In what areas do we defend DUI cases?

We have represented DUI defendants throughout Georgia.

• Atlanta,
• Bartow County,
• Bibb County,
• Bryan County,
• Cartersville,
• Chatham County,
• Clarke County,
• Clayton County,
• Cobb County,
• Columbia County,
• Columbus,
• Cumming,
• Decatur,
• DeKalb County,
• Douglas County,
• Dublin,
• Floyd County,
• Forsyth County,
• Fulton County,
• Garden City,
• Gordon County,
• Gwinnett County,
• Hall County,
• Harris County,
• Henry County,
• Houston County,
• Lawrenceville,
• Lowndes County,
• Macon,
• Muscogee County,
• Richmond Hill,
• Savannah,
• Spalding County,
• Tybee Island,
• Valdosta.