Why do I have Multiple DUI charges??

/in , , , , , , , , , , , , , , , , , /by

If you are charged with DUI, you may have noticed that you do not have just 1 charge of driving under the influence, but you could be charged with several. But what does this mean and how does this affect you?

If you are charged with multiple counts of DUI stemming from the same incident, the most likely reason is because there is a chemical test of your blood, breath, urine, or other bodily substance which indicates a blood alcohol concentration of at least 0.08 grams and/or at the time of the DUI stop, there were children under the age of 14 in the vehicle.

Generally when a prosecutor accuses a DUI, they will attempt to categorize the offense as as many different kinds of DUIs as they can. If your case does not have a chemical test, that is, you refused the State’s requested chemical test and no one sought a warrant either for your blood or from hospital records, you are likely charged with DUI Less Safe. In Georgia, the State does not have to prove beyond a reasonable doubt that your blood alcohol concentration was a 0.08 or above, merely that you were driving while you were under the influence of alcohol, and as a result of the alcohol consumed, you were a less safe driver. This means that the State does not have to have “proof” of your BAC, only that you had consumed some amount of alcohol.

However, if you consented to the officer’s requested chemical test or the officer sought a warrant for your blood, and the results of that test or blood draw indicated a BAC of 0.08 grams or more, you are likely charged with DUI Unlawful Alcohol Content, also referred to as DUI “per se.” This kind of DUI does require evidence of a defendant’s BAC, generally in the form of a scientific report.

If you are charged with both DUI Less Safe and DUI Per Se, think of them as two ways the State can attempt to prove the same charge. One is not any worse than the other, and a conviction of one results in the other being “merged,” that is, effectively dismissed. The penalties under law are the same for a DUI Less Safe and a DUI Unlawful Alcohol Content, and the effect on your license doesn’t change depending on whether you are convicted of one or the other. A DUI conviction is a DUI conviction.

If you are charged with one or both of the above-referenced kinds of DUIs, and an additional DUI charge, you may be looking at a charge of DUI Child Endangerment. You could be charged with this crime if, at the time of your DUI arrest, there was a child under 14 years of age in the vehicle. The most important thing about DUI Child Endangerment is that, unlike the other two kinds of DUI, it does not merge into a DUI. It counts as an entirely separate DUI upon conviction.

Here is an example: Jayme was arrested for DUI. His 10 year old son, Billy, 6 year old daughter, Sarah, and 14 year old nephew, Steven, are all in the car at the time. When he is arrested, he consents to the officer’s request that he submit to a State-administered chemical test of his blood. When the blood test comes back from the lab, it indicates a blood alcohol content of 0.10 grams. When Jayme goes to Court, he notices that he is charged with 4 counts of DUI: DUI Less Safe, DUI Unlawful Alcohol Content, and 2 counts of DUI Child Endangerment. Note that he could not be charged with a 5th count of DUI for his nephew, because Steven is 14 years old. At trial, Jayme is convicted on all counts. However when the Judge sentences Jayme, he is only sentenced as though he was convicted of 3 of the DUI counts, because the DUI Less Safe would merge into the DUI Unlawful Alcohol Content by operation of law. Again, note that unlike DUI Unlawful Alcohol Content and DUI Less Safe, the counts of DUI Child Endangerment do not merge, even upon conviction of multiple counts of the same. Thus, although the charges all come from one DUI investigation and arrest, they count as 3 separate and distinct convictions of DUI.

Don’t be like Jayme. If you are charged with DUI, call our office for a free consultation. 404-581-0999. Written by Attorney Katherine Edmonds.

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

/in , , , , , , , , , , , , , , , , , , /by

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.

Clayton County Serious Injury by Vehicle

/in , , , , , , , , , , /by

DUI and Reckless Driving charges are considered misdemeanors in Georgia. However, if you were arrested for DUI or Reckless Driving and there was an accident with serious injuries involved, it is likely you will be arrested for the felony offense of Serious Injury by Vehicle under O.C.G.A. § 40-6-394.

 

A Serious Injury by Vehicle case in Clayton County will be prosecuted by the Clayton County District Attorney’s Office.  It is a felony charge, and the Clayton County District Attorney has four years from the date of arrest to bring formal charges against you. Once your case is indicted or accused within the statute of limitations, your first court date will be your Arraignment date. This takes place at the Clayton County Courthouse located at 9151 Tara Boulevard, Jonesboro, GA 30236.

At your arraignment date, you will have the opportunity to enter a Not Guilty plea and make a demand to see the evidence. It is imperative to have an attorney at this phase in the case because certain Constitutional motions must be filed within 10 days of this court date, or the issues are waived. This means that an attorney must file motions challenging the constitutionality of the stop and the arrest, within 10 days of the Arraignment date, or you will lose the ability to fight the case on these issues later on.

What’s the Difference Between a Misdemeanor DUI and a Serious Injury by Vehicle?

The difference between a felony and a misdemeanor is the punishment and the other collateral consequences. DUI and Reckless Driving are misdemeanor crimes, and thus carry a maximum punishment of 12 months in jail. On the other hand, Serious Injury by Vehicle is a felony charges which could result in much lengthier punishment as society views felonies, generally, more harshly. Specifically, for the felony charge of Serious Injury by Vehicle, the minimum punishment is 1 year in prison, while the maximum is 15 years. Certain factors like the blood alcohol content, or whether there was any prior convictions can elevate punishment significantly. Compare that to a Driving Under the Influence charge where the minimum punishment is just 24 hours along with conditions like community service and DUI school.

What about my License?

The Department of Driver Services also treats this crime harshly, and if you plea or are found guilty of Serious Injury by Vehicle in Clayton County or anywhere in the State, you are facing a driver’s license suspension for a period of three years in addition to the other requirements imposed by the Court.

The State does not have to prove you committed an unsafe act like speeding, cutting someone off, or hitting someone’s vehicle from the back. They can proceed only on the fact you were DUI and caused an injury under the statute, even if you were not the cause of the accident.

In order for the State to prove Serious Injury by Vehicle, they must prove the injuries were serious enough to fall under the statute. Courts have held broken bones, being unable to walk well for a period of time, and certainly brain damage, all to be sufficient for the state to proceed on felony charge.

Take the next step

If you or someone you know have been arrested for Serious Injury by Vehicle in Clayton County or the Jonesboro or Atlanta area, it is imperative to meet with a law firm who has a high-level skill in DUI defense as well as in Serious Injury by Vehicle cases. Your future and your freedom depend on it. Call us today for a free consultation at 404-581-0999.

Big Win for DUI Defense and What it Means for You

/in , , , , , , , , , , , , , , , , , /by

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.

DUI Probation in Bartow County

/in , , , , , , , , , /by

If you are entering a plea to a DUI in Bartow County, under Georgia law, there are certain penalties which the Court must impose when you enter your guilty plea.

According to Georgia Law, O.C.G.A. 40-6-391, if you plead guilty to DUI, the Court must:

 

  • Assess a fine of not less than $300 (but not more than $1,000
  • Sentence you to 24 hours imprisonment
  • Sentence you to complete 40 hours of community service at a 501(c)(3) organization
  • Require completion of a DUI Alcohol or Drug Use Risk Reduction Program
  • Require completion of a clinical evaluation for substance abuse treatment
  • Require you to serve 1 year on probation.

While on probation, you will also be responsible for paying any supervision fees, you will be regularly drug and alcohol screened, and if you commit any other crimes, you may face even stiffer penalties if your probation is revoked.

These sentencing requirements sound very serious (and they are!) but they are also very discretionary. Bartow County judges have a lot of control over the sentence. For example, some judges will allow you to terminate your probation early if you complete any requirements of your sentence in a reasonable amount of time. Other judges will allow you to complete community service in lieu of paying a fine. Some judges will give you credit for any time served in jail at the time of your arrest, and other Bartow County judges will not make you serve any time if you complete your probation requirements.

Entering a guilty plea to DUI in Bartow County can be a tough pill to swallow. With the right attorney beside you, however, you will have your best chance of reducing the time and money spent on probation and incarcerated. Attorneys are able to present mitigating evidence for the Court’s consideration, and argue why the judge should withhold certain sentence requirements. If you are considering a guilty plea to DUI in Bartow County, call our office first. We may be able to help you make the best of a bad situation, and ensure that you are only being sentenced to the absolute minimums. Call us for a free consultation at 404-581-0999.

 

Written by Attorney Katherine Edmonds

DeKalb County Serious Injury by Vehicle

/in , , , , , , , , , , , /by

DUI and Reckless Driving charges are considered misdemeanors in Georgia. However, if you were arrested for DUI or Reckless Driving and there was an accident with serious injuries involved, it is likely you will be arrested for the felony offense of Serious Injury by Vehicle under O.C.G.A. § 40-6-394.

 

A Serious Injury by Vehicle case in DeKalb County will be prosecuted by the DeKalb County District Attorney’s Office.  It is a felony charge, and the DeKalb County District Attorney has four years from the date of arrest to bring formal charges against you. Once your case is indicted or accused within the statute of limitations, your first court date will be your Arraignment date. This takes place at the DeKalb County Superior Court located at 556 N McDonough St, Decatur, GA 30030.

At your arraignment date, you will have the opportunity to enter a Not Guilty plea and make a demand to see the evidence. It is imperative to have an attorney at this phase in the case because certain Constitutional motions must be filed within 10 days of this court date, or the issues are waived. This means that an attorney must file motions challenging the constitutionality of the stop and the arrest, within 10 days of the Arraignment date, or you will lose the ability to fight the case on these issues later on.

What’s the Difference Between a Misdemeanor DUI and a Serious Injury by Vehicle?

The difference between a felony and a misdemeanor is the punishment and the other collateral consequences. DUI and Reckless Driving are misdemeanor crimes, and thus carry a maximum punishment of 12 months in jail. On the other hand, Serious Injury by Vehicle is a felony charges which could result in much lengthier punishment as society views felonies, generally, more harshly. Specifically, for the felony charge of Serious Injury by Vehicle, the minimum punishment is 1 year in prison, while the maximum is 15 years. Certain factors like the blood alcohol content, or whether there was any prior convictions can elevate punishment significantly. Compare that to a Driving Under the Influence charge where the minimum punishment is just 24 hours along with conditions like community service and DUI school.

What about my License?

The Department of Driver Services also treats this crime harshly, and if you plea or are found guilty of Serious Injury by Vehicle in DeKalb County or anywhere in the State, you are facing a driver’s license suspension for a period of three years in addition to the other requirements imposed by the Court.

The State does not have to prove you committed an unsafe act like speeding, cutting someone off, or hitting someone’s vehicle from the back. They can proceed only on the fact you were DUI and caused an injury under the statute, even if you were not the cause of the accident.

In order for the State to prove Serious Injury by Vehicle, they must prove the injuries were serious enough to fall under the statute. Courts have held broken bones, being unable to walk well for a period of time, and certainly brain damage, all to be sufficient for the state to proceed on felony charge.

Take the next step

If you or someone you know have been arrested for Serious Injury by Vehicle in DeKalb County or the Decatur and Atlanta area, it is imperative to meet with a law firm who has a high-level skill in DUI defense as well as in Serious Injury by Vehicle cases. Your future and your freedom depend on it. Call us today for a free consultation at 404-581-0999.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Cherokee County, Georgia

/in , , , , , , , , , , /by

By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer in Cherokee County. This bill went into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and eluding in Cherokee County. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, in Cherokee County, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing and eluding on, or after, July 1st, 2022, the sentencing will be enhanced pursuant to this new law.

Contact Us

Due to the severity of the punishment for fleeing and eluding based on this new legislation, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this new law, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with fleeing or attempting to elude in Cherokee County, Georgia, please call our office today at 404-581-0999 for a free consultation.

Cobb County Serious Injury by Vehicle

/in , , , , , , , , , , , , /by

DUI and Reckless Driving charges are considered misdemeanors in Georgia. However, if you were arrested for DUI or Reckless Driving and there was an accident with serious injuries involved, it is likely you will be arrested for the felony offense of Serious Injury by Vehicle under O.C.G.A. § 40-6-394.

 

A Serious Injury by Vehicle case in Cobb County will be prosecuted by the Cobb County District Attorney’s Office.  It is a felony charge, and the Cobb District Attorney has four years from the date of arrest to bring formal charges against you. Once your case is indicted or accused within the statute of limitations, your first court date will be your Arraignment date. This takes place at the Cobb County Superior Court located at 70 Haynes St, Marietta, GA 30090.

At your arraignment date, you will have the opportunity to enter a Not Guilty plea and make a demand to see the evidence. It is imperative to have an attorney at this phase in the case because certain Constitutional motions must be filed within 10 days of this court date, or the issues are waived. This means that an attorney must file motions challenging the constitutionality of the stop and the arrest, within 10 days of the Arraignment date, or you will lose the ability to fight the case on these issues later on.

What’s the Difference Between a Misdemeanor DUI and a Serious Injury by Vehicle?

The difference between a felony and a misdemeanor is the punishment and the other collateral consequences. DUI and Reckess Drviving are misdemeanor crimes, and thus carry a maximum punishment of 12 months in jail. On the other hand, Serious Injury by Vehicle is a felony charges which could result in much lengthier punishment as society views felonies, generally, more harshly. Specifically, for the felony charge of Serious Injury by Vehicle, the minimum punishment is 1 year in prison, while the maximum is 15 years. Certain factors like the blood alcohol content, or whether there was any prior convictions can elevate punishment significantly. Compare that to a Driving Under the Influence charge where the minimum punishment is just 24 hours along with conditions like community service and DUI school.

What about my License?

The Department of Driver Services also treats this crime harshly, and if you plea or are found guilty of Serious Injury by Vehicle in Cobb County or anywhere in the State, you are facing a driver’s license suspension for a period of three years in addition to the other requirements imposed by the Court.

The State does not have to prove you committed an unsafe act like speeding, cutting someone off, or hitting someone’s vehicle from the back. They can proceed only on the fact you were DUI and caused an injury under the statute, even if you were not the cause of the accident.

In order for the State to prove Serious Injury by Vehicle, they must prove the injuries were serious enough to fall under the statute. Courts have held broken bones, being unable to walk well for a period of time, and certainly brain damage, all to be sufficient for the state to proceed on felony charge.

Take the next step

If you or someone you know have been arrested for Serious Injury by Vehicle in Cobb County or the Marietta area, it is imperative to meet with a law firm who has a high-level skill in DUI defense as well as in Serious Injury by Vehicle cases. Your future and your freedom depend on it. Call us today for a free consultation at 404-581-0999.

 

HGN and Head Trauma

/in , , , , , , , , , , , , , , , , , , , /by

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.

DUI Probation in Henry County

/in , , , , , , , , , , /by

If you are entering a plea to a DUI in Henry County, under Georgia law, there are certain penalties which the Court must impose when you enter your guilty plea.

According to Georgia Law, O.C.G.A. 40-6-391, if you plead guilty to DUI, the Court must:

 

  • Assess a fine of not less than $300 (but not more than $1,000
  • Sentence you to 24 hours imprisonment
  • Sentence you to complete 40 hours of community service at a 501(c)(3) organization
  • Require completion of a DUI Alcohol or Drug Use Risk Reduction Program
  • Require completion of a clinical evaluation for substance abuse treatment
  • Require you to serve 1 year on probation.

While on probation, you will also be responsible for paying any supervision fees, you will be regularly drug and alcohol screened, and if you commit any other crimes, you may face even stiffer penalties if your probation is revoked.

These sentencing requirements sound very serious (and they are!) but they are also very discretionary. Henry County judges have a lot of control over the sentence. For example, some judges will allow you to terminate your probation early if you complete any requirements of your sentence in a reasonable amount of time. Other judges will allow you to complete community service in lieu of paying a fine. Some judges will give you credit for any time served in jail at the time of your arrest, and other Henry County judges will not make you serve any time if you complete your probation requirements.

Entering a guilty plea to DUI in Henry County can be a tough pill to swallow. With the right attorney beside you, however, you will have your best chance of reducing the time and money spent on probation and incarcerated. Attorneys are able to present mitigating evidence for the Court’s consideration, and argue why the judge should withhold certain sentence requirements. If you are considering a guilty plea to DUI in Henry County, call our office first. We may be able to help you make the best of a bad situation, and ensure that you are only being sentenced to the absolute minimums. Call us for a free consultation at 404-581-0999.

 

Written by Attorney Katherine Edmonds