VIDEO – Horizontal Gaze Nystagmus Test

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You’ve been stopped for DUI and the officer asks you to follow their finger with your eyes? What is this horizontal gaze nystagmus field sobriety test? And can it even be passed? That is the subject of today’s Peach State Lawyer video blog.

Hello, I’m attorney Scott Smith and today I’m standing in our mock trial courtroom. We’re talking about being asked out of your car after only having two drinks. The officer asks you to face him and with your hands by your side, feet shoulder width apart to follow his pen with your eyes. He asks you if you wear glasses or contacts or if you’ve had any recent head injuries. You’re about to perform the horizontal gaze nystagmus field sobriety test. It’s commonly known as the HGN test, or in the DUI world, the “eye” test.

What is this test?

The horizontal gaze nystagmus field sobriety test was originally designed by optometrists to diagnose medical issues within your eyes. The test checks for the involuntary jerking of your eye as your eyes move side to side horizontal to the floor following an object. Researchers determined some substances, particularly ethyl alcohol, and other central nervous system depressants, inhalants, and the drug PCP can cause horizontal gaze nystagmus in your eyes after use.

The horizontal gaze nystagmus field sobriety test, when properly performed looks for six clues of impairment. In Georgia DUI investigations, this test is the first of the standardized field sobriety evaluations.

Before the test can be performed on anyone, the officer is supposed to make sure both of your pupils are of equal size and your eyes move together from side to side. If you are having eye issues, the officer is supposed to discontinue the test immediately.

The clues are established in pairs. There are three tests performed that look for clues of impairment. The first test, called lack of smooth pursuit, is performed by the officer moving his finger back and forth across your field of vision, checking for nystagmus in both eyes as his finger or pen light is moving.

Because your eyes work together, each clue will be present in both eyes. If the officer says they notice a clue in one eye but not the other, the test would not be valid.

The second test is called distinct and sustained nystagmus at maximum deviation. It is where the officer moves his finger to the edge of your field of vision and holds it there for a minimum of four seconds to determine if your eye continues to exhibit sustained jerking when it is fixed on his finger at the edge of your field of vision.

These tests are designed to build upon each other, so you should never see clues present for distinct and sustained nystagmus at maximum deviation unless clues are present for lack of smooth pursuit.

The third and final test is called onset of nystagmus prior to a forty-five degree angle. The test is performed by the officer moving his finger slowly from the center of your field of vision until they reach a forty-five degree angle. When the officer begins to see nystagmus they are supposed to stop their finger and hold it to confirm the sustained jerking of the eye.

That’s it. That’s the entire horizontal gaze nystagmus field sobriety test. There’s nothing you can do to pass it. It’s all about the involuntary jerking of the eye and trusting that the officer in his report has documented his observations accurately.

As you can imagine, there are things that an experienced attorney can look for to determine whether the tests are performed correctly. If the tests are not performed correctly, an experienced DUI attorney can ensure the test should not be admitted into evidence or at trial against you.

Have you been recently arrested for DUI and asked to take this eye test? Do you have questions about the test? We’re available twenty-four hours a day, seven days a week to talk to you. Call us today for a free consultation. Our telephone number is 404-581-0999.

Thank you.

VIDEO – What Happens to Your Georgia Drivers License After You Are Arrested for DUI in Georgia

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You’ve been arrested for DUI in Georgia. The officer has read you Georgia’s Implied Consent Notice, requesting a blood or breath test. What do you do? What happens if you refuse to take the State’s test? Can you get a permit to drive to work or school? What happens to your drivers license after DUI arrest in Georgia?

Watch the video below and call us today at 404-581-0999 for a free consultation or to answer your questions.

What happens to your Georgia Driver’s License after DUI arrest in Georgia?

Hello, I’m attorney Scott Smith and today we’re talking about what happens to your Georgia Driver’s License after you’ve been arrested for DUI here in Georgia.

You’re arrested for DUI. You’re read from an orange card asking for a blood or breath test and then later the police officer takes your license from you. In its place he hands you a sheet of paper called a DDS 1205 form. I’ve got an example right here. It has some basic information on the top and on the bottom it says notice of license suspension and temporary driving permit.

Can the officer take my license from me? What is this sheet of paper? Why did I receive it?

That piece of paper is going to act as your temporary Georgia driver’s license. In Georgia, our law allows the police officer to take your license from you and return it to the Department of Driver Services, also known as DDS for suspension by simply being suspected of DUI. That piece of paper that the officer gives you in place of your license states your license will be suspended in thirty days if you do not request an appeal of the suspension within ten business days from the date of your arrest. In essence, you only have ten days to prevent an automatic suspension of your license. If you don’t appeal the pending suspension, your license gets suspended.

You may lose your ability to drive for one year. If you are arrested for DUI and you did not give the officer the test they requested, that means a one year suspension with no ability to get a work permit to drive for work. If you did give the requested sample, and the result was over the legal limit, you may be eligible for a work permit.

At our office of experienced Atlanta criminal defense attorneys, we can look at your case, let you know if you need to submit a request for appeal, help you make sure your appeal is submitted correctly so you do not lose your right to drive, and we’ll even give you a copy of the ten day letter which you can submit on your own to get the process started.

Don’t lose your ability to drive after a DUI arrest. Call us today at 404-581-0999. Thank you.

VIDEO – Your Right to Remain Silent!

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by  Scott Smith and Ryan Walsh

What do you do when the police begin to ask you questioning in relation to a criminal investigation? We are all familiar with those magic words we hear so often in television and film. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney.
That’s the beginning of the Miranda warning, a warning that must be given in any situation where a government agent or police officer has placed you in custody, is questioning you, and seeks to admit those responses into evidence against you at trial. What most of us don’t realize is that warning doesn’t have to be given in every situation where you are being questioned. For the Miranda warning to apply, the Georgia government agent or police office must be questioning you while you are in custody. Custody is a legal term that doesn’t have an exact meaning. It is determined by looking at a totality of the circumstances surrounding the questioning.
Circumstances that impact whether you are deemed to be in custody to trigger a Miranda warning include:
  • Who asked the questions?
  • How many officers were present?
  • Were any non-law enforcement officials or government agents present?
  • Did the officer tell the suspect the interview was voluntary?
  • Where did the questioning take place?
  • Did the officer use any physical restraints, like handcuffs?
  • How long was the conversation?
  • Was the suspect free to leave at the end of the conversation?
These factors, along with others, are things the court looks at when determining if it was necessary for a Miranda warning to be read. Failure of the investigative official or government agent to read your Miranda rights does not necessarily mean the charges against you will be dropped. It just means your responses to those questions that violated your rights will not be admissible in court.
You don’t have to wait to hear those words that begin a Miranda warning to exercise your right not to talk to the police or any other investigative authority. Any person who is being stopped, detained, or investigated for the commission of a crime has no duty to answer any questions asked of them by any law enforcement or investigative official of Georgia or any state in the United States. And at W. Scott Smith, PC, the Peach State Lawyer, we advise all our current and potential clients to politely decline to answer any questions until after speaking with an attorney about the facts and circumstances surrounding the questioning.
We see the scenario play out in consultations every day. A Georgia officer walks up to the driver’s side of our potential client’s vehicle and asks “Do you know how fast you were going?” Or “How much have you had to drink tonight?” Our immediate instinct is to think we’re caught; let’s embellish the truth a bit. And instead of telling the officer ‘I politely refuse to answer any questions or exactly seventy-four miles per hour, Officer’, you make up a number 5-10 miles per hour over the speed limit, or respond with the ever-popular ‘two drinks.’ At this point the speeding case is over. You’ve admitted to violating at least one Georgia speeding statute. And in regards to the investigation into Driving under the Influence of Alcohol, we’ve given the officer an admission of alcohol consumption that may give them probable cause to arrest you for DUI in conjunction with any traffic infractions.
The reason we advise our clients to politely refuse to answer questions is because these officers are not on your side. They aren’t trying to find a reason not to cite you, not to arrest you, not to take warrants out against you. Their job is to gather evidence of criminal activity and to determine who most likely committed the crime. Georgia law enforcement officers are trained to ask specific, pointed, leading questions to get you to make admissions that could lead to you being charged with a crime. Those questions are designed for only one reason, and that is to gather information that can ultimately be used against you. DO NOT help them with their job. Even if you know you are one hundred percent innocent in the circumstances surrounding the Georgia law enforcement officer’s questions, politely decline their questions, tell them you want a lawyer, and let them release or arrest you.
Answering police officers questions without an attorney present will not help your case. Telling an officer you only had two drinks, or telling an officer you don’t have any marijuana on you but you smoked earlier, does not let them know that you were safe to drive or that you aren’t guilty of possession of marijuana. It tells them that you’re willing to voluntarily provide them with evidence they are going to use against you in their DUI or Drug investigation.
If you have any questions about your rights, if you’ve been contacted by law enforcement and asked to give a statement, or you’ve been arrested and questioned, you must contact us immediately. It is imperative that an experienced criminal defense attorney assess your situation, prevent further statements, and see if your rights have been violated in prior questioning. Call The Peach State Lawyer today at 404-581-0999 for a free consultation.

DUI Refusal Reaches the Supreme Court

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SUPREME COURT UPDATE:  Can they charge me with a crime for refusing the breath test?

On April 20, 2016, the Supreme Court heard argument on Birchfield v. North Dakota.  The case addressed the question of whether a State can criminalize the refusal to submit to a chemical test of blood, breath, or urine without a warrant.   In both Minnesota and North Dakota, it is a separate crime to refuse to take the State chemical test.   Prosecutors for both the State of Minnesota and the State of North Dakota argued that an officer’s request for a breath sample without a warrant protects against evidence spoiling (BAC dropping over a period of time).  Interestingly, the Supreme Court Justice’s peppered both lawyers with factual scenarios about the reality that, with today’s technological capabilities, it is fairly easy for a police officer to contact a magistrate judge to obtain a warrant.   Interestingly, the Justices did not focus all of their tough questions towards the State.  It appears that the Justices had significant feelings about the minimally invasive nature of a breath test in comparison with a blood test.  There also seemed to be some confusion about the use of a roadside portable breath test versus a State administered breath test at the jail.

Georgia currently does not have a criminal penalty for refusing to take the State administered breath test.  Instead, Georgia law allows officers to request a civil penalty (loss of your license for 12 months) for refusing to take the State administered blood/breath/urine test.   However, the decision of the Supreme Court will almost certainly impact Georgia DUI cases going forward.   If the court were to side with the defendants in this case, we certainly can expect the opinion to express strong 4th amendment language that could impact other types of DUI cases.   On the other hand, if the court were to side with the State of Minnesota and North Dakota, we can expect other States, Georgia included, to introduce legislation that would criminalize the refusal of a State administered test.

Our lawyers will be watching closely when the Supreme Court releases their opinion this fall.  For more information about the case, check out the oral arguments at:

http://www.supremecourt.gov/oral_arguments/audio/2015/14-1468   and

http://www.scotusblog.com/2016/04/argument-analysis-criminal-penalties-for-refusal-to-take-a-breathalyzer-test-in-jeopardy/

We will certainly provide an update when the Supreme Court releases their final ruling.

What to Do at the Jail After a DUI Arrest

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By: W. Scott Smith

The scenario every wife, husband, father, mother or friend fears receiving:  A call from a Georgia jail, and someone has been arrested for DUI:

“Its me.  I need your help.  I got arrested last night.  I am at the Fulton county jail/ Cobb county jail/ DeKalb county jail/ Gwinnett County jail.  I am being charged with DUI.  Can you please come bail me out?”

Scott Smith - Atlanta's Top DUI Attorney

W. Scott Smith is the founding partner of the Law Offices of W. Scott Smith.

This phone call can be one of the most important moments in your loved one’s DUI defense down the road.  Although not a secret, this information may assist your friend or family member in winning their DUI case at trial or negotiating a reduction to Reckless Driving.  If you are on Google and Googling this while you are on the phone with a friend charged with DUI in Georgia, it is extremely important to relay this information to the DUI friend or family member while in jail:

If the person in jail refused to take the DUI breath test at the jail.  Tell them to find the nearest jailer and rescind their refusal.  Meaning tell the jailer nearest them they now have changed their mind and want to take the Georgia breath test: “I am charged tonight with DUI.  The officer asked me to perform the breath test.  I initially declined.  I want to take it now.  Can you please help me in taking it?”  Make sure to remember the name of the person who they ask.

If the person in jail took the DUI breath test at the jail.  Tell them to find the nearest jailer and ask for an independent blood and breath test: “I am charged tonight with DUI.  The officer asked me to perform the breath test on the Intoxilyzer.  I took it.  I now want to take a an independent test of blood at the nearest hospital, a breath on a different machine than the one I breathed into, a urine at a hospital, or another bodily substance test.  Can you please help me in taking it?”  Make sure to remember the name of the person who they ask.

Here is the reason you want to advise your loved one charged with DUI in Fulton, Cobb, DeKalb, Atlanta or Gwinnett to request the test from the jailer.  Georgia courts have repeatedly rejected the argument that once a DUI suspect indicates to an officer that he refuses to submit to a blood-alcohol test, the matter is closed.  Georgia law recognizes the possibility that an individual may rescind his or her refusal to submit to an Intoxilyzer test, the police administered breath test down at the jail or the police department.  The machine is always on and almost always available to use.  Similarly, Georgia law allows a person in Georgia suspected of being DUI to request an independent test of their own choice.

In order for the consent to be proper after first refusing the police administered test, it must be made:

(1) within a very short and reasonable time after the first refusal;

(2) at a time when the test administered would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request would result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

If the jailer does not allow you to take the test, then the initial refusal to take the state DUI breath test OR the results from taking the test will be suppressed as long as you can meet the five requirements outlined above.  This nuance in Georgia DUI law even applies to all Georgia Administrative license suspension hearings where the State attempts to suspend your license after being charged with DUI.

In essence, it comes down to timing and knowing your rights while still in custody.  The fifth factor is so important when you are on the phone with someone in jail or adult detention centers (all county jails in the state of Georgia including Gwinnett, DeKalb, Cobb, Fulton and Atlanta). Remember to tell them to ask a jailer near them to please allow them to take the test; or, if they already took the test, to ask the jailer to supply them with an independent blood test at the nearest hospital.

As we have always stressed to clients, the first thing one should do when booking out of jail after being bonded out for a DUI arrest in Georgia is write everything down. This includes a detailed description of the events leading up to the DUI.  The DUI arrest itself.  And if you followed my suggestion outlined above, the name of the jailer he or she requested to take the test (either initial breath or independent blood test). The name of the jailer is incredibly important because if you selected us as your lawyer we would want to send them a friendly reminder to memorialize the occurrence and we would want to subpoena them to court.

I hope this information is useful if you are now on the phone with someone charged.  Remember, our phone lines are on 24/7 to assist with DUI defense as it is happening.  Please call us at 404-581-0999.

 

Understanding a DUI Citation

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What are these other DUI charges on my DUI Citation or Court Notice?

By: Ryan Walsh, Esq. 

I see it every time. Georgia State Patrol troopers arrest a prospective client of ours in the City of Atlanta for driving under the influence (DUI) of alcoh

Ryan Walsh is an Associate Attorney at the Law Office of W. Scott Smith

Ryan Walsh is an Associate Attorney at the Law Office of W. Scott Smith

ol and their DUI citation reads “in violation of Official Code of Georgia Annotated (O.C.G.A.) §40-6-391(a)(1-5). Our prospective client then receives a court notice from the Municipal Court of Atlanta after their first court appearance that lists each of the separate DUI code sections from (a)(1) through (a)(5). They appear as follows:

O.C.G.A. §40-6-391(a)(1) – DUI Alcohol Less Safe

O.C.G.A. §40-6-391(a)(2) – DUI Drugs

O.C.G.A. §40-6-391(a)(3) – DUI Multiple Substances

O.C.G.A. §40-6-391(a)(4) – DUI Inhalants

O.C.G.A. §40-6-391(a)(5) – DUI Alcohol Per Se (Test over .08)

Only O.C.G.A. code sections 40-6-391(a)(1) and 40-6-391 (a)(5) relate solely to alcohol involved DUI arrests. The other three code sections relate to DUIs involving non-alcohol related substances, or a combination of drugs and alcohol. So why are you charged with these other offenses when they played no part in your arrest? The answer is: the Georgia State Patrol Nighthawks division, also known as the State Patrol DUI Task Force writes a citation for DUI the same way every time they make an Atlanta DUI arrest. Their citation includes each and every DUI code section.

But a citation is just a charging document. A charging document (like a citation, or more formally an accusation or indictment) presents charges the solicitor can move forward on. The solicitor then looks at the evidence and decides what charges best fit each individual situation. In the majority of all DUI cases, these are just the alcohol related code sections. In other DUI cases it may just be a Drugs case. Very rarely do we see DUI multiple substances or DUI inhalants cases.

Because you may have been overcharged in your case by a Georgia State Patrol Trooper, it is important to consult with an experienced Georgia DUI attorney. The attorneys at W. Scott Smith PC are knowledgeable in each and every subsection of the DUI code, and effectively advise you on the strengths of your case. Call us today at 404-581-0999.

Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

What Is Arraignment?

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WHAT IS ARRAIGNMENT?

“What is arraignment?”

That’s the first question every client asks us when they receive their first court date, and it’s a great one.   Most of our clients have either received a court date prior to meeting with us or they were told when they leave the jail that they will receive an arraignment date in the near future.  So, what is arraignment?

In Georgia, every person is entitled to due process of law under the Georgia Constitution and the United States Constitution.  A citizen’s due process rights include the right to be placed on notice of any charges the State intends to seek.   The State files charges through either a formal indictment or accusation. These documents are ultimately the framework of how the case will proceed.  As such, arraignment is the first opportunity for the court to inform the accused of the charges against them.  Under Georgia law, every person accused of a crime has the right to be arraigned.  Formal arraignment is when the court reads the charges in open court and an accused has an opportunity to enter a plea of either guilty or not guilty. courtroomdoorfrombench1 (1)

So what actually happens in court at the arraignment hearing?  From a practical stand-point three things happen at arraignment.   First, one of our lawyers will likely inform the court that we are waiving formal arraignment (reading of the charges in open court) because we have received the actual charging document and we would prefer, for the sake of privacy, for our clients charges not to be read in front of hundreds of people.  Second, we enter a plea of not guilty.  At this juncture the State has not provided the evidence they intend to use at trial and we would essentially be accepting guilt without evaluating the case.  Thus, it makes sense to plead not guilty, collect evidence, and then proceed accordingly.  Finally, we inform the court that we will be filing legal motions and ask the court for ten-days to file.  Legal motions cover many issues including asking the Judge to force the State to provide evidence, suppress evidence, hold a hearing on legal issues, and many other topics.

If you have been charged with a crime then your case will eventually be set for an arraignment hearing.  Please contact our office today at 404-581-0999 for a free consultation at either our downtown location or our Marietta location to discuss arraignment and how we can help with your case.

NEW YEARS EVE DUI CHECKPOINT

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NEW YEARS EVE DUI CHECKPOINT:

Every year, thousands of Georgians celebrate the dawning of a New Year by enjoying the several New Year’s parties around town.  As we all know, those parties often include music, food, and alcohol.  According to the Insurance Institute for Highway Safety, New Year’s Day is the second most deadly day for drivers with an average of 140 deaths related to alcohol.  Because of this, law enforcement agencies throughout the State set up DUI checkpoints to prevent drunk drivers from getting into accidents.   We certainly advise that you find a safe ride home on New Year’s Day.  But if you find yourself at a DUI checkpoint, it’s important to know your rights before the Officer mistakes you for a dangerous driver.

STAGE 1:

DUI checkpoints are often set up in two stages.   The first stage is an initial screening stage.   Here, a DUI trained officer will check for some of the common physical manifestations of a person who is driving under the influence.  Often, we see police reports that include the initial screening officer smelling the odor of alcohol coupled with bloodshot and watery eyes.  The DUI officer is also looking for the driver’s behavior.  Particularly, the DUI Officer is looking to see if the person is being belligerent or combative.

It’s important to remember to always be polite in these situations.  If the DUI Officer becomes agitated with the way you respond to his questions, then you’ll likely find yourself at the DUI checkpoint much longer than you would expect.   The Officer will likely ask you how much you’ve had to drink.  If you’ve only had one beer then it’s ok to let the Officer know that.   In Georgia, it is not illegal to consume alcohol and drive.  However, it is illegal to consume alcohol the extent you become a less safe driver.  So, the fact that you have had one beer does not automatically mean you’ve broken the law.

STAGE 2:

The DUI Officers are trained to instruct drivers to the second stage of the checkpoint if they feel there is enough evidence to continue a DUI investigation.  The second stage will often include a second DUI Officer who will almost certainly request the driver to perform field sobriety testing.  As we’ve discussed in the past, field sobriety testing is weighed heavily against the driver.  For example, the walk and turn evaluation is one of the three standardized field sobriety tests.  The evaluation includes a series of clues the Officer is trained to look for.  There are seventy-six opportunities for the driver to display a clue.  If the driver shows two of the seventy-six clues then that is enough for the Officer to establish someone are impaired.   More concerning is the initial studies on this examination showed only a 65% accuracy rate in optimal conditions.

Because of the unreliability of field sobriety testing, we always suggest to our client to refuse any field sobriety testing.  The chances of the Officer making a mistake are extremely high and the consequences to the driver can be drastic.   Finally, if the DUI Officer feels there is enough evidence obtained from all of the interactions then he or she will make an arrest.

As I mentioned earlier, the easiest way to avoid a DUI is call a cab or have a sober driver.  Personally, I’ve found the car service Uber to be fantastic.  But, sometimes we find ourselves in difficult circumstances.

If you or a friend ends up getting charged with DUI on New Year’s Day please contact the office immediately at 404-581-0999.   Our lawyers will be on call and available to for a free consultation.

MULTIPLE DUIs

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MULTIPLE DUIs

Dealing with a DUI is never easy.   More often than not our clients come into our office confused about the process in front of them and the consequences they may face going forward; both with their license and the pending criminal case.   Much of the confusion can be attributed to the complexity of the case and the lack of information provided to individuals by the arresting officer.  Things can get even more confusing when someone is facing a second, third, or even fourth DUI.   In Georgia, the penalty ranges for multiple DUIs change drastically from a first lifetime arrest.   This blog post will address both the minimum criminal consequences and license implications for someone facing the possibility of having a subsequent DUI in Georgia.chicago-dui-lawyer

Criminal Consequences

Prosecutors throughout Georgia have a tendency of becoming very aggressive with individuals facing a subsequent DUI.    On a first lifetime DUI the statute only requires that a defendant serve a minimum of twenty-four hours in jail and limited special conditions.   Second, third, and fourth DUIs within a ten-year period include significantly more consequences than a first DUI.

The Georgia Code specifies the different minimum sentence requirements for multiple DUI convictions.  The Code measures the time frame for DUI penalties in 10-year increments.  The number of DUIs is calculated from the date of arrests, not the date of prior conviction.  Here is a snapshot of the minimum consequences for a subsequent DUI:

SECOND DUI WITHIN A 10 YEAR PERIOD

  • Probation:
    • The Judge must place an offender on 12 months’ probation
    • Jail:
      • 90 days minimum; the Judge has the authority to suspend all but 72 hours in custody.
      • Fine:
        • $600 – $1000
        • Special Conditions:
          • 30 days Community Service
          • Risk Reduction (DUI School)
          • Clinical Evaluation and Follow up Treatment
          • MORE depending on jurisdiction 

THIRD DUI WITHIN A 10-YEAR PERIOD (High and Aggravated Misdemeanor)

  • Probation:
    • The Judge must place an offender on 12 months’ probation
    • Jail:
      • 120 days minimum; the Judge has the authority to suspend all but 15 days .
      • Fine:
        • $1000 – $5000
        • Special Conditions:
          • 30 days Community Service
          • Risk Reduction (DUI School)
          • Clinical Evaluation and Follow up Treatment
          • MORE depending on jurisdiction

FOURTH DUI OR MORE WITHIN A 10-YEAR PERIOD (FELONY)

  • Probation:
    • The sentence range is 1-5 years; Judge must place on probation for at least 5 years (minus any days spent in custody).

*If number of DUIs included convictions prior to July 1, 2008, then misdemeanor

  • Jail:
    • 1 year minimum; Judge can suspend all but 90 days.
    • Fine:
      • $1000 – $5000
      • Special Conditions:
        • 60 days Community Service
        • Risk Reduction (DUI School)
        • Clinical Evaluation and Follow up Treatment
        • MORE depending on jurisdiction

It’s important to note that all of the above listed consequences are minimum requirements.   As mentioned above, prosecutors and judges throughout the State are very aggressive on multiple DUIs and their sentence recommendations often exceed the minimum requirements.

License Consequences

“What’s going to happen to my license?”

A great question, and probably the most common question we get on any DUI case.   The Department of Driver Services (“DDS”) is the entity in Georgia who calculates both the type and length of suspension a person convicted of DUI will receive.   Unlike the criminal consequences, DDS uses a 5-year increment in determining license suspensions for DUI convictions.   Below is the framework DDS uses in determining license suspension for a post-conviction suspension.  It is important to note, that there are possible administrative suspensions that occur prior to a DUI case even going to trial (see Administrative Suspensions).

SECOND DUI WITHIN 5-YEAR PERIOD (Over 21 years old)

–          18 month total suspension

  • 12 months hard suspension (no license)
  • Interlock Permit after 120 days w/ Court Permission
  • $210 Reinstatement Fee
  • Proof of DUI School

THIRD DUI WITHIN 5-YEAR PERIOD (Over 21 years old)

–          Five Years

  • Habitual Violator Status (See: Habitual Violator)
  • $410 Reinstatement Fee
  • Proof of DUI School

You can find more information at www.dds.ga.gov.

What does it all mean?  It means that multiple DUIs are tricky.  They take a significant amount of knowledge and experience to navigate through to a successful result.   Every case is different and often a subsequent DUI must be fought in order to save jobs, licenses, and criminal histories.   Our lawyers are trained for these very types of cases.  Please contact us today at 404-581-0999 if you fit into any of the above listed categories.