FREQUENTLY ASKED QUESTIONS
DUI (The Basics)
In order to be convicted of DUI, it must be shown that you were driving or in
actual physical control of a moving vehicle. The burden is on the State to show
that the officer had a reasonable, articulable suspicion for stopping or
approaching the vehicle. If you were stopped at a roadblock, the prosecutor must
show that the roadblock was set up in accordance with the Fourth Amendment to
the U.S. Constitution. These issues are somewhat complex. Lawyers who only handle the occasional DUI will not be aware of the latest cases that affect
your rights.
The next stop in a DUI case is the officer’s roadside determination that
there is probable cause to arrest you for DUI. The State must show that it is
likely that you were a less safe driver as a result of drinking alcohol. Many
cases involve the use of field sobriety tests. These tests can help an officer
make up his mind about whether you should be arrested OR bolster his
previously formed opinion that you are DUI.
After you are arrested, the officer MUST read at the time of arrest
the correct Implied Consent warnings. These warnings must be read in substantial
compliance with the statute.
There are three different warnings, and the officer must read the correct
warning. This warning gives you the option of either taking a State test (or
tests) or refusing the test. The officer chooses the test. The officer also must
advise you that you have the right to an independent chemical test of your own
choosing. Occasionally an officer will not read the Implied Consent warning at
the time of arrest or refuses a request for an independent test. This may be
grounds for the exclusion of the State test. You do not have the right to have
an attorney present at this point in time.
In most DUI’s the final part of the case is the State administered test or
lack of a test. If a test is given, the State must prove that the test was done
properly and on a machine that was working properly. [Top]
HOW CAN WE HELP YOU?
We will make sure that the State can prove all of the elements of the case.
We are entitled to all reports that are favorable to your defense and the
identity of all witnesses who may testify against you. We frequently review a
videotape prior to going to court. Most prosecutors will allow us to watch the
videotape before we go to court, and we can usually obtain a copy from the police with an Open Records Act request. These tapes are very helpful in the
defense of a case.
We are entitled to contest certain aspects of the case prior to a trial. We
use motions to suppress evidence that has been gathered illegally. In some
cases, a granting of a motion or the presentation of a motion to the State will
cause them to reduce the charges. We do whatever we can to win the case before
we go to trial. In the event that a trial is necessary, we know the expert
witnesses who can testify about the field sobriety tests or chemical tests. We
can make no promises except one: There is a 100% chance that you will be found
guilty if you plead guilty.
IMPORTANT NOTE: If you took a test and the result exceeded .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. The level IS 0.08 grams.
Following the arrest and test or refusal, the officer is supposed to submit a
sworn report to the Department of Public Safety to initiate an administrative
license suspension hearing. This process is separate and
distinct from the criminal hearing. The “only” penalty is loss of your privilege to drive; no criminal penalties can be imposed in
the administrative license suspension proceeding. The Administrative hearing is conducted by the
Office of State Administrative Hearings. If you either refuse to take
the test or register a "per se" alcohol level, you have ten business days to
request an administrative hearing. If you do not request the hearing with ten
business days, the following penalties apply: [Top]
REFUSING THE TEST
If a police officer reads the Georgia Implied Consent Warning to you, you are
may either take or refuse the State test. Should you refuse to take a test, your
license can be suspended for up to one year without any work
permit. The only way to get your license back is to win your DUI case in court
or have the case reduced to a non-DUI charge. If you did not send a letter
within 10 days of arrest, your license will be suspended.[Top]
Your license will be suspended for
the same period of time if you request a hearing in a timely manner but lose at the administrative
hearing. Note, if you are a commercial trucker, the limited permit is NOT
valid for a commercial vehicle.
If you receive an administrative suspension for a “per se” violation, the
time should be credited against any suspension that is imposed because you plead
guilty or are found guilty.
FIELD SOBRIETY TESTS
In most DUI cases, an officer will ask you to perform three tests - the
Horizontal Gaze Nystagmus, the Walk and Turn, and the One Leg Stand. These are
the tests that the officer has been trained to administer. The officer will
usually write down his observations in a police report. All to often his or her
observations will differ from what really took place. Hopefully, there is a
videotape that will disprove the officer’s testimony that "The driver could not
keep his foot up" , or the tape may reveal that the driver was not quite as
unsteady as the officer said. Most officers will exaggerate the driver’s
performance on the field tests in order to obtain a conviction. However,
effective cross-examination with or without a video usually reveal all the things you did right during the field sobriety tests - things the officer
will seldom volunteer. [Top]
THE HORIZONTAL GAZE NYSTAGMUS TEST
The Horizontal Gaze Nystagmus is a test designed to measure the jerking of
the eye. There are three ways to measure this "jerking" The first is to check
for smooth pursuit. The next check is done to see whether the nystagmus becomes
more "distinct" when the eye is moved to a lateral extreme or maximum deviation.
The final measure is whether there is an onset of nystagmus before the 45 degrees. By measuring the angle at which the eye begins
jerking, an officer can, theoretically, roughly estimate BAC.
[Top]
What does all of this mean?
We know when a police officer does not do the tests correctly. Oftentimes, if
I am able to catch them, they will look foolish. Most juries can understand that
field tests really do not mean all that they are set out to be. Most jurors
cannot stand on one leg regardless of whether or not they have been drinking.
Field sobriety tests can be handled in court with proper training and
questioning. I believe that people who have been drinking will not perform well
on these tests, but I also believe that most non-athletic people will not
perform well either.
The Horizontal Gaze Nystagmus is used by police and prosecutors as a
scientific test. If it is done correctly, it has been shown to have validity.
However, road conditions are different than laboratory conditions. An officer
with traffic going by, blue lights flashing, and potential for danger does not
always do the test as he was taught. Thus, if the test is not done properly, the
validity is compromised. [Top]
State Administered Tests of Blood, Breath, and Urine
The police are allowed to ask a driver to submit to a State administered
chemical test if the officer has reasonable grounds to believe that the driver
is operating a moving vehicle while under the influence of alcohol. In addition,
the Legislature has determined that any person who operates a moving vehicle in
this state has given consent to have a blood, breath, urine, or test of other
bodily substances to determine if he or she is under the influence of alcohol.
Once you are arrested for DUI, an officer should read the implied consent
warning. This warning advises you of the consequences of taking a test and gives
you the option of refusing a test. In addition, the warning advises you of your
right to your own chemical test once you take the State test. Contrary to public
opinion, the law does not give people the right to an attorney prior to taking a
test. [Top]
Breath Tests
If asked to take a breath test at the police station or jail, you will be
tested on the Intoxilyzer 5000 machine. This is the only machine approved for
use in Georgia. The Intoxilyzer 5000 works by measuring wave lengths of light.
It measures the degree that alcohol absorbs infared light. The more alcohol
present the greater the absorption of light and the higher the level of alcohol.
[Top]
Problems With Breath Testing:
The Intoxilyzer 5000 is a machine and is subject to error. For example, if a
person gives a breath test of 0.10 grams on their first try, the next test will
be valid if it is as low as 0.08 or as high as 0.120 grams. The range is + or -
.02 grams or more. That is a huge leeway in order for a test to be valid.
To bring it closer to home: Would you feel comfortable if I told you that ten
people were going out on a boat and the law required me to have a life jacket
for each of them. However, the law gave me some leeway and told me that it would
be o.k. if I had anywhere between 8 and 12 jackets on the boat. Would you feel
comfortable getting on that ship?
There are numerous things that can affect a breath test such as proximity to
electronics that emit radio waves, like police walkie-talkies. These items
should be turned off when in the room where the Intoxilyzer test takes place.
The machine if properly working should detect any radio interference.
A person's physical condition, or exposure to certain substances, may also
cast doubt onto the accuracy of the Intoxilyzer 5000. Some forms of diabetes,
hernias, gastric reflux, or other illnesses may yield inaccurate results on a
breath test. In addition, exposure to certain chemicals like acetone may result
in an inaccurate breath alcohol test result. Further, some diets like high
protein diets may impact a breath test.
The machines are only tested four times a year in Georgia. In some states,
there is the ability to save the breath sample for re-testing. However, Georgia
has chosen not to have this feature on its machine. Although our breath machine
has a filter that should eliminate interfering substances such as toluene,
acetaldehyde, and acetone, from a breath test, routine inspection only includes
testing for acetone filtration. Moreover, there is nobody in Georgia who can
repair a broken machine. Rather, the machine must be packed and shipped to the
factory for repair. The officer who gave the breath test has generally only been
through a sixteen hour course to administer tests. They do not know much more
than how to turn the machine on and off. However, following recent court
decisions, it is highly likely that the breath test will be admitted into
evidence at trial. Therefore, it may be necessary to hire an expert to testify
and educate the jury about the deficiencies in the breath test. It may be likely
that there were some problems with a breath test. If there were, a good lawyer
should be able to attack the result. [Top]
MOST COMMON QUESTIONS OUR CLIENTS HAVE ABOUT THEIR DUI CASES
Can we really win?
Yes. In my opinion a win is obviously a not guilty verdict or an outright
dismissal. However, we also look at a win as a DUI charge that is dropped or
reduced to another offense. Frequently, either before or during a hearing on a
motion to suppress, a prosecutor will appreciate the weakness of the case and
reduce the charge, because they understand that a DUI may be difficult to prove.
After learning of the facts of your case, we will tell you what we need to do to
win and what our chances of success are. [Top]
Can I plead Nolo or No Contest?
A nolo plea for offenses prior to July 1, 1997 could save your driver’s
license. However, it is of little use today, because it will not save the
license. It may carry some benefits in the event of an auto accident where
liability is an issue. [Top]
Will the Prosecutor know my record?
The State has access to your history. In most cases the State will know all
about your prior record, although some states (e.g., Florida) do not report
on-line. They will also know if it is clean. The prosecutor may obtain a
national criminal history which should show prior offenses in other states. We
do not present this evidence to the State, but we must know the truth so we can
adequately prepare your defense. [Top]
How long does a DUI stay on my record?
In Georgia a DUI will remain on your record forever. [Top]
I do not live in Georgia, so how will this affect me, and will I have to
return for court?
Georgia can suspend your privilege to drive in this State, but it cannot
suspend your license. In addition, it cannot issue any kind of limiteed permit
for a person with an out-of- state license. However, if convicted, your state
will most likely find out and issue some sort of suspension. Most likely, you
will have to return to Georgia for at least one court appearance.
[Top]
Will I go to jail for this?
Yes, a DUI carries a maximum penalty of 12 months in jail and a minimum
period of 24 hours in jail, with two exceptions (first in five years with a
refusal or BAC under .08). DUI has become a very serious issue, and most judges
will give jail time for even a first offense. Most judges will look at a
lifetime record. Even though the law only has specific penalties for DUI’s
within a five year period, it is not uncommon for a Judge to look outside that
window to determine a sentence. [Top]
Can I get a work permit if I am convicted?
It depends on a number of factors. If it is a first offense and you are not
administratively suspended for a refusal and you have a Georgia Driver’s
License, you should be able to get a permit unless you are under 21. The limited
permit will not permit you to operate a commercial vehicle. Of course, if we obtain a non-DUI disposition, you will not suffer
any suspension, and an administrative suspension is erased.
If it is a second offense in five years, you cannot get a limited permit
until 12 months after the suspension goes into effect and you have an interlock
ignition device installed on your car. If it is a third offense in five years, a
permit is only available after two years. However, if you have been
administratively suspended, these answers may change. There are many different
situations, so an individual analysis is what you need. It costs nothing to talk
to me, just call 410-486-1800 if you are outside our
area code. [Top]
What is an interlock ignition device?
It is a device that is installed on the steering column of the car and
requires a breath sample in order for the car to start. In addition, it will
beep at intervals and require breath samples. If any alcohol is detected, the
car will shut off. An interlock device is required on all second offenses within
a five year period. Some judges require an interlock on all second offenses
lifetime and can impose it as a special condition of probation, even on a first
offense lifetime. [Top]
When can I speak to you?
We are in court on a regular basis.
WHAT TO DO IF STOPPED BY THE POLICE FOR DUI
What should I do if pulled over and am suspected of a DUI?
If you are over twenty one and have not been convicted of a DUI in the last
five years:
1. BE POLITE (The officer is the Judge and owns the side of the road.)
2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD
ALCOSENSOR
3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY, SUBMIT TO THE REQUESTED
CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A
WORK PERMIT).
4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED
5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH
AT A DIFFERENT POLICE DEPARTMENT
If over twenty one and have been convicted of a DUI in the last five years:
1. BE POLITE (The officer is the Judge and owns the side of the road.)
2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD
ALCOSENSOR
3. UNLESS YOU HAVE HAD 2 DRINKS OR LESS DO NOT SUBMIT TO THE REQUESTED
CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A
WORK PERMIT; HOWEVER A 2ND OFFENSES DUI WITHIN 5 YEARS WILL LEAD TO 12 MONTHS
WITHOUT A LICENSE ANYWAY).
4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED
5. IF YOU TAKE THE TEST ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A
HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT [Top]
If under twenty-one:
1. BE POLITE (The officer is the Judge and owns the side of the road.)
2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD
ALCOSENSOR
3. POLITELY REFUSE TO TAKE THE REQUESTED CHEMICAL TEST. (One drink may put
you over the legal limit)
4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED (Any admission
of drinking may lead to a separate charge for underaged possession of alcohol).
[Top]
If a commercial driver:
1. BE POLITE (The officer is the Judge and owns the side of the road.)
2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS, INCLUDING A HAND-HELD
ALCOSENSOR
3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY SUBMIT TO THE REQUESTED
CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A
WORK PERMIT)
4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED
5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH
AT A DIFFERENT POLICE DEPARTMENT [Top]
410-486-1800
