I was arrested for DUI at a roadblock/checkpoint. What do I do?

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Georgia law and the United States Constitution requires that police officers possess a certain level of suspicion in order to stop a driver. Police officers must have reasonable articulable suspicion that a driver is, has, or is about to break the law in order to pull them over. However, DUI checkpoints and roadblocks are an exception to this requirement, and police do not have to have any suspicion whatsoever to stop a car passing through a checkpoint.

If you have been arrested at a checkpoint, you may be wondering how to best defend your case. The good news is that the State must show that the roadblock was conducted in such a way that complies with Georgia law. In the case of Baker v. State, 252 Ga. App. 695 (2001), the Georgia Court of Appeals articulates the six prongs which must be shown to support a stop at a checkpoint. The Court in Baker held that a roadblock is valid when:

  1. The decision to implement the checkpoint in question was made by supervisory officers and not officers in the field;
  2. The supervisors had a legitimate purpose in conducting a checkpoint;
  3. All vehicles passing through the checkpoint are stopped, not just “random” vehicles;
  4. The delay to drivers is minimal;
  5. The checkpoint operation is well identified as a police checkpoint (think flashing lights, marked vehicles, and traffic cones);
  6. The screening officer’s training and experience are sufficient to qualify him to make an initial determination as to which motorists should be administered field sobriety tests.

This test is all-or-nothing. If the prosecutors cannot show each and every one of these elements, the stop and any subsequent observations, statements, or arrests may be suppressed.

If you have been arrested at a checkpoint, you may have a valid defense in your case. Call our office for a free consultation and find out what your best options are. 404-581-0999. Written by Attorney Katherine A. Edmonds.

Big Win for DUI Defense and What it Means for You

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In November, the Supreme Court of Georgia issued a ruling which marks a major victory for the United States and Georgia Constitutions, as well as folks charged with driving under the influence. In Ammons v. State, the Court held that suspects have the right to refuse an officer’s request to perform a preliminary breath test and field sobriety tests. What is more, is that the Court stated that refusal to take the tests is inadmissible under Georgia law.

The Constitution of Georgia protects citizens rights against self-incrimination. In Georgia, the government, including police and prosecutors cannot force you to speak or act in ways that could result in criminal consequences. Before the Georgia Supreme Court issued its decision in Ammons, however, the prosecution could introduce evidence that a suspect declined to take part in field sobriety tests at the request of an officer. The purpose of introducing refusals of field sobriety tests was to indicate to the jury or judge that the suspect refused to perform fields because they guilty. This is an improper purpose, and because of the Ammons decision, the State cannot try to convince the jury of your guilt based on your refusal because it is a constitutional right to refuse to offer incriminating evidence against yourself.

So what does this mean for you? This means that if you are stopped by police and asked to perform field sobriety tests, it may be in your best interests to refuse to do so, particularly if you have been drinking or have a history of DUI arrests.

Of course, if you are reading this blog, you may have already been charged with DUI and wondering what your options are. If you have been charged with DUI and refused field sobriety tests, that refusal is not admissible. However, there may be other evidence in your case that could be admitted if gone unchallenged. You should consider hiring an experienced DUI attorney to protect your interests and ensure that the State is not able to admit evidence which was improperly or illegally obtained. If you want to learn more about your options, call our office for a free consultation. 404-581-0999. Written by Attorney Katherine Edmonds.

Georgia Public Drunkenness Attorney

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As holiday parties and events are in full swing, you may wonder the best way to stay clear of police encounters after a night out of drinking. The most obvious way to avoid trouble after a night out is to use a rideshare or designated driver, so as not to drive while intoxicated. But what about simply being drunk in public? Could that land you in jail for the night too?

Drinking to the point of being intoxicated is not always against the law. However, when your condition is made manifest by “boisterousness, by indecent conditions or act, or by vulgar, profaine, loud, or unbecoming language,” you can be arrested for the charge of Public Drunkenness.

Under O.C.G.A § 16-11-41 it is a misdemeanor offense to be intoxicated in a public place, or in the outskirts of a private residence other than your own, or one you are invited to be on. But it is only against the law if your intoxication  is manifested by boisterous, vulgar, loud, profane, or unbecoming language, or by indecent condition. Simply being drunk without an outward manifestation is not against the law in Georgia as mere drunkenness in a public place is not enough to be convicted.

As you can see there is a defense to the charge of Public Drunkenness in Georgia. If convicted, however, it is a misdemeanor crime that can remain on your criminal history forever. The maximum penalty in a Public Drunkenness case in Georgia is 12 months to serve in custody, and a $1,000 fine, or both.

If you have been arrested or cited for Public Drunkenness in Georgia, call W. Scott Smith for a FREE CONSULTATION at 404-581-0999. A night out on the town should not have lasting consequences and our lawyers are on call to assist you.

HGN and Head Trauma

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If you have been pulled over in Georgia on suspicion of DUI, the investigating officer will probably ask you to perform a battery of standardized field sobriety tests. This request may take the form of any number of questions, such as “can we just check to see if you are safe to drive?” or “we want to perform some tests before we let you on your way, is that alright?”. These tests are not required, and declining to perform these tests cannot be used against you in a prosecution of DUI. For this reason, it is better to decline to perform any tests, no matter how much reassurance the police officer gives you that they are “just to make sure you are safe on the roads.”

Still, many people opt to perform the tests, either because they don’t see the harm, they wish to be congenial with the officer, or because they don’t know that they can decline to perform the tests. If you choose to perform the tests, the officer may ask you if he can “take a look at your eyes.” This is an indication that he is about to perform the first of three standardized field sobriety tests, the horizontal gaze nystagmus.

This test is considered to be a “scientific” test, and because of this, it is important that the officer comply with his training as exactly as possible. The test must begin with a number of questions designed to medically qualify the participant. The officer is trained that he must ask you whether or not you have recently had any head, neck, or brain injuries, as these kinds of trauma can affect whether someone exhibits nystagmus, even if not under the influence of alcohol. It is common practice to ask whether or not the subject has “any eye problems” or vision issues, but this is not enough. The officer must also determine that it is appropriate to use this test. If the subject has been in a recent accident, suffering from whiplash, a concussion, vertigo, or some other balance and coordination related condition, the HGN test may not be accurate or reliable.

If you have been in an accident at the time of your DUI investigation, the officer may have overlooked potential head trauma before administering this test. As a result, the “clues” of the test may be unreliable, and could be subject to suppression before trial.

It is important to understand your rights and protections when you are charged with DUI. If you want an attorney that is knowledgeable about DUI police training and procedure, call our office for a free consultation at 404-581-0999. Written by Attorney Katherine A. Edmonds.

Reducing a Lifetime CDL Disqualification to 10 Years in Georgia

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If you are convicted of two DUIs in Georgia, your commercial driver’s license (CDL) is disqualified for your lifetime. However, new rules provide a process to allow your CDL to be reinstated after only ten years. If you meet the following requirements, you are eligible to have your Lifetime CDL Disqualification reduced to 10 years:

  • At time of application, you must possess a valid Class C Georgia driver’s license. The term “valid” means that the license is not expired and is not cancelled, suspended, or revoked.
  • Any Lifetime CDL Disqualification you are applying to have reduced must have been in effect for a period of not less than ten (10) years.
  • Any Lifetime CDL Disqualification that is based on a conviction for homicide by vehicle in the first degree or serious injury by vehicle, you are not eligible to have your Lifetime CDL Disqualification reduced to ten (10) years.
  • Any Lifetime CDL Disqualification that is based on the use of a motor vehicle in the commission of a felony involving manufacturing, distributing, or dispensing a controlled substance; OR any Lifetime CDL Disqualification that is based on a conviction for Human Trafficking, is not eligible to be reduced to ten (10) years.
  • In addition to the $210.00 non-refundable CDL Restoration Fee, your application must include the following supporting documents:
    • A certified seven (7) year Georgia motor vehicle report (MVR) dated within 30 days of application. Your driving history must be free of any convictions for the five (5) year period preceding date of application.
    • If your Lifetime CDL Disqualification is based on a violation that was alcohol related, you must include a clinical evaluation dated within 90 days of the date of application reflecting no substance abuse treatment necessary.
    • If your Lifetime CDL Disqualification is not based on a violation that was alcohol related, you must include a certificate of completion from a DDS-certified driver improvement clinic dated within 90 days of the date of application.
    • A copy of your current, unexpired United States Department of Transportation (USDOT) medical certificate card.

If you are approved to have your Lifetime CDL Disqualification reduced to 10 years:

  • You will be eligible to obtain a Georgia Commercial Learner’s Permit (CLP), which must be held for a minimum period of 14 days before becoming eligible to upgrade to a Georgia Commercial Driver’s License (CDL).
  • You must complete and successfully pass all applicable knowledge and/or skills tests to obtain a Georgia CLP/CDL. You must also pay $35.00 for the CDL Application Fee, $10.00 for each CDL Knowledge Exam, and $50 for each CDL Road Skills Test attempt.
  • Any Georgia CDL you are issued will be restricted for first two (2) years to intrastate driving only.
  • You will not be eligible for a Passenger (P) endorsement on any Georgia CDL for the first two (2) years following issuance.
  • Restrictions may be removed after two (2) years if your driving history is free of any convictions.
  • No person whose Lifetime CDL Disqualification is reduced to ten (10) years shall ever possess a School Bus (S) or a HAZMAT (H) endorsement.
  • If you are convicted of a major traffic violation at any time after your Lifetime CDL Disqualification has been reduced to ten (10) years, you will be subject to a permanent lifetime disqualification.

 

If your CDL has been the subject of a lifetime ban, we can help you have the ban reduced.  This is a complicated process and having an experienced layer by your side is important. Please call our office at 404-581-0999 and let us help you have your driving privileges restored.

Alco-Sensor, PBT, Roadside breath test. What is it? Should I do it or not?

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If you’ve ever seen an episode of Cops, you are likely familiar with the roadside alcohol detection device known as an Alco-Sensor or PBT. This device calculates your estimated blood alcohol level by measuring the amount of alcohol in your breath. The driver blows into the device, generally during the course of a DUI investigation, and the device produces a result.

Officers are trained that they should tell suspects that the device only tells them whether or not they test positive or negative for alcohol, but this is not accurate. The device in fact gives a numerical reading, such as “0.08” or “0.00.” In Georgia, the numerical results of an alco-sensor test are not admissible in evidence, and neither is testimony that the result on the device was “high” or “over the legal limit” but whether or not the result was positive or negative for alcohol or whether a suspect “passed” or “failed” the test is admissible.

So should you take the roadside breath test if you are pulled over for DUI? A good rule of thumb is no, as the result could be potentially incriminating. Even though the number is inadmissible, it is typically still included in the police report, and prosecutors have access to this information, so a high result can make it difficult to convince the prosecutor to dismiss or reduce the DUI. However, if you have consumed no alcohol, and you are confident that the test result will be 0.00, then it may be worth it to perform the test. It is completely voluntary, and the police cannot force you to comply with the test because you are protected from compelled self-incriminatory acts and statements.

If you or a loved one have been arrested and charged with DUI, give our office a call. We offer free consultations and payment plans to help fit your budget. 404-581-0999. Written by Attorney Katherine Edmonds.

Driving with a Suspended License in Fulton County

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By: Attorney Alex Henson

In Georgia, driving with a suspended license can result in an arrest and conviction for a misdemeanor. If you are found guilty of driving on a suspended license you will face no less than two days in jail and a fine of $500 to $1000. You could also be placed on probation. Pleading guilty to driving on a suspended license will also result in a new suspension of your Georgia driver license for six months. You can avoid a new suspension by pleading nolo contendre (no contest), but this option is only available once every five years.

A second or third conviction of driving on a suspended license in a five-year period will result in no less than 10 days jail and a fine of $1000 to $2,500. You can also face additional penalties such as probation. A fourth conviction in a five-year period will be considered a felony and is punishable by 1 to 5 years in prison as wells as fines and probation. If you are arrested or cited for driving with a suspended license having a lawyer fight your case can result in a better outcome. Call us at (404)  581-0999 for a free consultation.

Giving a False Name

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A person who gives a false name, address, or date of birth to a law officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate can be charged with the misdemeanor of Giving False Name. Georgia law (O.C.G.A. 16-10-25) makes it illegal to lie to the police about your identity. However, simply refusing to hand over your ID does not give the police officer probable cause to believe that you have falsely identified yourself, so you cannot be charged with Giving a False Name under those circumstances, but refusing to hand over your license might result in an obstruction charge.

To prove that someone is guilty of Giving a False Name, the State will generally provide proof of the person’s real name, address, or date of birth by showing records such as a birth certificate, driving records, or registration.

If you have been charged with Giving a False Name, you face penalties up to 1 year and jail, a fine of $1000, or both. You need an experienced attorney to help you navigate the charges, evidence, and defenses. Give our office a call for a free consultation if you or someone you know has been charged with giving a false name. 404-581-0999. Written by Attorney Katherine Edmonds.

What type of trial should I have?

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A trial is when you present all the facts in your case and it is heard by, either a judge or jury, who then determine whether you are guilty or innocent. You get to decide what type of trial you would like. There are two types of trials: a jury trial or a bench trial. In a bench trial, the judge determines whether you are guilty or innocent. In a jury trial, people from the community, that you have a say in choosing, determine whether you are guilty or innocent. Depending on your case, we can help you decide which trial is best for your case. Typically, jury trials are best but consulting with an attorney can better advise you of which type of trial is best for your specific case.

If you or someone you know has been charged with a crime and are deciding between what type of trial to have, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

What is Arraignment?

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If you are charged with committing a crime, there are many different hearings that you might have to attend. One of those is an Arraignment. What is an Arraignment? An arraignment is the first court appearance or first court date someone receives after they get out of jail on bond or after they receive a traffic ticket. Some counties don’t give you a court date immediately. Other counties will mail you a court date. Sometimes it can be a while before you have your first court date.

What is the purpose of Arraignment? Arraignment is to notify you what your charges are and give you an opportunity to plead guilty or not guilty. In Georgia, every defendant has the right to an arraignment in a felony and misdemeanor case.

Sometimes the charge you were originally given or arrested for is not the same charge that the prosecutor is going forward on. This means that they can charge you with something more serious or charge you with something less serious.

Arraignment is not the time where you can present evidence or argue your case to the judge.  It is simply the time to enter guilty or not guilty and hear the formal charges the prosecutor is moving forward against you on. In all, not much happens at Arraignment. Ideally, you should have an attorney to represent you at arraignment. A lawyer can appear in court on your behalf and waive arraignment to excuse you from court.

If you or someone you know has been arrested or charged with a crime or is under investigation, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.