DUI: Drugs

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DUI drugs charges can be a source of confusion for defendants and lawyers alike. This article will explore these laws and explain their meaning, what must be proven, how they are proven, and how to defend against them.

There are three ways to charge DUI Drugs cases: (1) DUI Drugs – Less Safe; (2) DUI Drugs – Per Se; and (3) DUI Drugs – Combined Effect.

DUI Drugs – Less Safe

Georgia law prohibits a person from driving a vehicle while under the influence of any drug to the extent that it is less safe for the person to drive. O.C.G.A. 40-6-391(a)(2). This “less safe” statute requires proof (beyond a reasonable doubt) that the quantity or amount of the prescribed, illicit, or even over-the-counter drug in the person’s system caused impairment or rendered the person to be a “less safe driver.” Therefore, a person can be prosecuted even though the drugs were legally prescribed or were provided over-the-counter, so long as consuming those drugs caused you to be a less safe driver.

The “less safe” provision is the most common way DUI drugs charges are prosecuted. The State is not required to prove the accused had a particular level of drugs in their system. As a result, the State may prosecute even though no chemical test exists. The arresting officer will look for the following indications of impairment:

  • Admitting to using drugs
  • Bloodshot or watery eyes
  • Slurred or slow speech
  • Presence of drugs in vehicle or on person
  • Bad driving
  • Poor performance on Standardized Field Sobriety Tests

The key to defending these “less safe” drugs cases is raising doubt as to whether the drugs taken were the actual cause of the bad driving complained of. This causation element is something the State is required to prove. There are many reasons for bad driving unrelated to the consumption of drugs. In addition, defense counsel should raise challenges to the arresting officer’s training and experience in detecting and investigating DUI Drugs cases. In many instances, the arresting officer does not have the degree of training required to properly investigate these cases such as an officer who is qualified as a Drug Recognition Expert (DRE). Furthermore, defense counsel should raise a Harper challenge to the scientific validity of the Romberg Field Sobriety test if that test was performed by the accused. [1]

DUI Drugs – Per Se

Georgia law makes it illegal for a person to operate a vehicle while there is any amount of marijuana or a controlled substance, as defined in O.C.G.A. § 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether any alcohol is present in the person’s breath or blood. O.C.G.A. 40-6-391(a)(6).

Given the language of the law, the mere presence of a drug (prescribed or not) will constitute a violation of this code section. The question becomes how an arresting officer would know whether the accused had a valid prescription or not? Without an admission, this would be difficult for a prosecutor to prove.

Issues of proof aside, Love v. State, 271 Ga. 398 (1999), has essentially wiped out the “DUI Drugs – Per Se” law entirely. The Love case held that O.C.G.A. § 40-6-391(a)(6), was too broadly drawn, as it incriminates both legal and non-legal users of marijuana, constituting a violation of the Equal Protection clause of both the Georgia and United States Constitutions. This is the primary reason most DUI Drugs cases are prosecuted as “Less Safe” cases.

What remains of the DUI Drugs – Per Se statute is to punish those cases where someone is driving with drugs in their system which offer no lawful use (cocaine, heroin, etc.).

DUI Drugs – Combined Influence

Under O.C.G.A. § 40-6-391(a)(4), a person is prohibited from driving a vehicle while under the influence of any two or more of the substances provided in the DUI code section (alcohol, drugs, or toxic vapors) to the extent it is less safe for the person to drive.

Again, we see the State being required to prove the accused was a less safe driver because of the combined effects of two or more intoxicants (alcohol and drugs – prescribed or not). Although these cases present greater challenges, a skilled attorney can raise doubt as to whether the combined effect of intoxicants actually caused less safe driving.  

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

[1] The Romberg test consists of the subject tilting their head back, closing their eyes, and counting in their head until the subject believes thirty seconds has elapsed and then telling the officer when they believe those thirty seconds had elapsed.

Is DUI a Felony?

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In most instances, the crime of DUI is considered a misdemeanor in Georgia. A misdemeanor is defined as a crime that has a maximum punishment of 12 months in jail. If this is your first time being charged with a DUI and no one was hurt, you will be facing a misdemeanor DUI.  Additionally, even if this is your second or third DUI in a short period of time, your DUI will still be charged as a misdemeanor.

Misdemeanor Punishments

Even if you are facing a misdemeanor-level DUI, the State can stack punishment, and request a longer sentence by adding additional jail time to an underlying charge. For example, if you are charged with DUI and Failure to Maintain Lane, the Judge can sentence you up to 12 months on each charge, for a total of 24 months in custody. Additionally, misdemeanor DUIs do still appear on criminal histories and can require jail, probation, and a license suspension if you are convicted. The goal after a DUI arrest is to avoid a criminal conviction so you can avoid the harsh punishments associated with a conviction for DUI. 

When DUI is a Felony

There are situations where you will be facing a felony after a DUI arrest. A felony is defined as a crime that is punishable more than a year in jail. The first instance is when you are being charged with a fourth DUI within a 10 year period, measured from the dates of previous arrests. A fourth DUI within 10 years is a felony in Georgia, with considerable mandatory minimum jail time if convicted.

Another situation where a DUI is considered a felony in Georgia is if you were arrested for the crime of Serious Injury by Vehicle. This occurs when someone causes an accident resulting in bodily harm while Driving under the Influence. This felony is punished by imprisonment between 1 and 15 years. Bodily harm under Georgia law is defined as an injury to another person which deprives them of a member of their body, or renders part of the body useless, or seriously disfigures, or causes brain damage. There are certainly defenses to this serious crime including the causal connection as well as what constitutes a serious injury.

The final situation where a DUI is prosecuted as a felony offense is Homicide by Vehicle in the first degree, meaning you are arrested for DUI and someone actually dies in the accident. You can be charged with Homicide by Vehicle if it is your passenger who dies.  If convicted, the crime is punishable from 3-15 years. The law requires the State to prove a causal connection between the violation of the DUI statute and the victim’s death. However, under Georgia law, the person does not actually have to commit an unsafe act before facing this type of charge.

Call us today!

DUIs in Georgia require knowledgeable and skillful representation as the stakes are high. If you are facing a felony DUI, it is imperative to find a law firm with a track record of success, who are well-informed on the ever-changing aspects of DUI law in Georgia. If you or a loved one is facing a DUI, whether it be a misdemeanor or felony DUI, call us today for a free consultation at 404-581-0999. 

Driver’s License & New DUI Law

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In May of 2019 the Georgia legislature approved a new implied consent warning for persons who have been arrested for DUI in Georgia. The implied consent warning informs drivers that Georgia law requires them to submit to a blood, breath, or urine test after they have been arrested for DUI; and submitting a sample that’s over the legal limit of .08 or refusing to submit to the requested test after arrest can result in a suspension of your drivers license.

What’s New?

This new implied consent notice removes a part of the old language that states “Your refusal to submit to breath testing can be used against you at trial.” This occurred after a Georgia Supreme Court opinion which stated that your refusal to submit to breath test evidence cannot be used against you at trial. However, this ruling is only related to the breath test option. Refusing to submit to blood and urine testing can still be introduced against you at trial.

What we have found after evaluating this new implied consent warning is that most well-trained officers are now just asking for a blood test instead of a breath test. Your refusal to submit to a blood test can be used to suspend your license as well as it can be used against you at trial.

Call us TODAY!

The law in relation to DUI cases in Georgia is constantly evolving. Having a well-trained lawyer on your side is the best way to maintain your ability to drive and keep a DUI conviction off your record. Our staff of attorneys is trained by the sane trainers who are teaching law enforcement officers to investigate DUI cases. Call our office today for a free consultation at 404-581-0999.

DUI: Blood Alcohol Concentration

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This blog article serves to discuss how Georgia law handles varying Blood Alcohol Concentration (BAC) levels, from 0.00% to 0.08% and beyond.

BAC of 0.05% or Less

If a chemical test of your blood or breath falls within this range, then the law[1]provides the defense with a presumption of non-impairment. This means the trier of fact (judge or jury) is entitled to infer that the defendant is not impaired based on this low alcohol concentration. This presumption of non-impairment, may however, be rebutted by the prosecution. Typically, this is done through presenting evidence of “bad driving” (accident, traffic violation, etc.), or through other manifestations associated with alcohol impairment. If your blood alcohol comes back in an amount this low, a skilled DUI lawyer should be able to get the charge dismissed or reduced.

BAC Greater than 0.05%  but Less than 0.08%

In this situation, the law provides no inference the person was or was not under the influence of alcohol. This BAC range is treated as neutral territory, it doesn’t hurt, but it doesn’t help either. Again, this evidence is to be taken into consideration with other competent evidence determining impairment.

BAC Greater 0.08% or More

A BAC of 0.08 grams or greater amounts to a per se violation of the DUI statute. This means the law automatically deems you impaired, regardless of alcohol tolerance. For this reason, it is imperative defense counsel do anything possible to eliminate this BAC number from being introduced at trial. And if the BAC is admitted at trial, the defense lawyer is tasked with casting doubt on the validity of the BAC result. This can be accomplished through effective cross-examination, employment of an expert witness, and a thorough investigation of the case.

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

[1] O.C.G.A. § 40-6-392(b)(1)

Georgia Underage DUI

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O.C.G.A. § 40-6-391(k) prohibits a person under the age of 21 to have a BAC of, “0.02 grams or more at any time within three hours after” driving a vehicle, from alcohol consumed prior to driving. This 0.02 BAC limit is substantially lower than the 0.08 limit provided for those aged 21 and over. Underage persons convicted under this code section are subject to the same penalties as adults, except in regards to periods of imprisonment and license suspensions.

Underage DUI Sentencing

Under O.C.G.A. § 17-10-3.1, if a judge orders an underage person to serve a prison sentence in conjunction with a first DUI conviction, the sentencing judge has the authority and discretion to “allow the sentence to be served on weekends by weekend confinement or during the nonworking hours of the defendant.” In addition, if this is the underage defendant’s first DUI, the defendant “shall be kept segregated from all other offenders” other than similar underage DUI offenders.

License Suspension

Regarding license suspension, upon a first conviction, drivers under 21 will have their license suspended for either six months or twelve months, depending on the BAC measurement. If the BAC is less than 0.08 grams, the period of suspension is for six months. Otherwise, the period of suspension is for twelve months. Importantly, the driver is ineligible for a driving permit and no early reinstatement is available. A new driver’s license will not be issued without proof of completion of the risk reduction program and payment equivalent to the driver’s license restoration fee for a suspended license ($200 or $210).  Finally, the driver shall, as an additional prerequisite for license reinstatement, be required to successfully complete the examination requirements of O.C.G.A. § 40-5-27 (driver’s license exam).

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

by Casey Cleaver

DUI: License Suspension

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How can my license to drive be suspended administratively and again if I am convicted of DUI? 

This is a good question.  Georgia law thinks of driving as a privilege and not a right.  On the administrative end, the law provides the Department of Driver Services (hereafter “DDS”) may take your license (viewed as a privilege) if there is a showing that you were more likely than not driving under the influence.  This standard of proof is much lower than in a criminal case where the standard is beyond a reasonable doubt.  

Where does license suspension begin?

The administrative license suspension (ALS) process begins when the arresting officer takes your driver’s license and issues you a “1205 Form” which acts as a 45 day driving permit upon a DUI arrest. DDS must receive a copy of the 1205 Form from law enforcement before a hearing can be scheduled or a limited driving permit can be issued.

Despite the arrest, the driver’s license is still valid until DDS receives the 1205 Form and 45 days have passed since the 1205 Form was served. The suspension is “pending” once DDS receives the 1205 form until the outcome of the administrative hearing.  Once DDS receives the 1205 Form this 45 day driving permit will take effect and your driver’s license status will remain “pending.” This 45 day permit can be extended if the OSAH hearing is not held within 45 days. There are no limited driving restrictions with respect to this 45 day permit.

What are my options?

There are two approaches to dealing with an administrative license suspension: (1) request a hearing to appeal the suspension; or (2) elect to install an ignition interlock device on your vehicle. 

DDS must receive the request for a hearing within 30 actual days (not business days) of the service of the 1205 Form. The hearing request must contain a $150 filing fee, the correct date of the arrest or incident, and the correct name of the driver, date of birth, and driver’s license number. Incorrect information could delay the hearing or cause a delayed suspension. Once the hearing request letter is received, your driver’s license will not go into suspension until you are afforded the ALS hearing before the Office of State Administrative Hearings (OSAH).

What happens at the hearing?

If you requested a hearing, the DDS will send you and your attorney a notice of a hearing date, time and location.  The officer who stopped you is required to testify in front of an administrative law judge. The scope of the hearing is limited to the following:      

  • (A) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or
  •   (B) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
  •       (C) Whether at the time of the request for the test or tests the officer informed the person of the person’s implied consent rights and the consequence of submitting or refusing to submit to such test; and
  •       (D) Whether the person refused the test; or
  •       (E) Whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and
  •    
      (F) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.

If the judge believes the officer legally satisfied the aforementioned requirements, your license shall be suspended.

What if I lose the ALS hearing?

If you took the requested test, your breath/blood results were over .08, and you lose the ALS hearing:

Your license/privilege to drive will be suspended for 1 year; however, after 30 days from the effective date of suspension, you may apply for reinstatement of your license, provided you do the following:

  1. 1. Submit an original certificate of completion of an approved DUI Alcohol/Drug Use Risk Reduction Program;
  2. 2. Remit a $210.00 restoration fee (or $200.00 if reinstatement is processed for by mail).

This suspension will not age off, but will remain active until you have completed the requirements listed above.[1]

If this is your first DUI in the last five years, you may be eligible for a Non-Ignition Interlock limited driving permit.[2] Your license must be under suspension (lose ALS hearing or no request for hearing is made). These types of limited permits are issued at DDS locations and are renewable in 30 day increments. They’re also referred to as “ALS Permits.”

What if I refused to take the requested test and lose the ALS hearing?

If you refused to take the State’s breath test, your license/privilege to drive in Georgia shall be suspended for one year.  You will not be eligible for a temporary/limited driving permit.  The suspension ages off at the end of 1 year.

What if you request a hearing but the officer never submits the 1205 Form to DDS?

Georgia law requires the officer to submit the 1205 Form to DDS within 10 days of serving you with notice.[3] If the 1205 Form is not received, OSAH will send you a 91 day letter stating they have not received the 1205 Form. You will be entitled to a refund of your $150 filing fee. You must request the refund through the DDS form.[4] In addition, the 1205 Temporary Driving Permit Extension is no longer valid. As a result, you can obtain a new driver’s license from DDS so long as you indicate on your application for new license that your previous license was taken by an officer.

The Ignition Interlock Device Permit Approach[5]

The issuance of an “Ignition Interlock Device Limited Permit”, is conditioned upon you waiving your right to an administrative hearing and having an ignition interlock device installed your vehicle.  The current ALS process, including the right to an administrative hearing, will remain in place as an option if you do not qualify for or do not wish to obtain this type of permit.     

In addition to waiving your right to an administrative hearing and having an ignition interlock device installed on your vehicle, you must also meet the following conditions:

  • Application for the permit must be made with DDS within 30 days of the person being served notice of the ALS by the arresting officer through the DS-1205 form, or—in the event of a DS-1205S form—within 30 days of receiving such notice of the ALS from DDS;
  • The ALS cannot stem from a motor vehicle accident involving fatalities or serious injuries;
  • You must be licensed in Georgia and not have any other suspensions, cancellations, or revocations against his or her Georgia driver’s license;
  • If you hold a Georgia commercial driver’s license (CDL), you must downgrade to a non-commercial Georgia driver’s license in order to obtain and maintain the permit;
  • You cannot have any prior convictions for DUI in the 5-year period preceding application for the permit;
  • You must surrender his or her Georgia driver’s license, either to the arresting officer at time of arrest or to DDS prior to issuance of the permit; and,
  • You must pay a $25.00 permit fee.

The period of time in which you must successfully maintain the ignition interlock device on their vehicle depends on whether you consented to or refusedS the state-administered chemical test requested by the arresting officer.

Consent v. Refusal

A person who consents to the state-administered chemical test and opts for the new permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 4 months.  If you are subsequently acquitted of the underlying DUI charge, or the underlying DUI charge is dismissed or reduced, the ignition interlock restriction may be removed at no cost and the driver’s license may be replaced.  The decision as to whether a fee is charged for removal of the ignition interlock device from your vehicle under such circumstances will be at the discretion of the device provider. A person who refused the state-administered chemical test and opted for the Ignition Interlock permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 12 months, regardless of the outcome of the underlying DUI charge.   

Successful maintenance of the ignition interlock device must be evidenced by the permit holder to DDS through the production of satisfactory monthly monitoring reports prior to DDS removing the ignition interlock restriction from the permit.  A permit may be renewed for a fee of $5.00 if additional time is needed for the permit holder to comply with the terms of the ignition interlock device, but it may only be renewed one time once the permit holder becomes eligible to reinstate his or her driver’s license. Following the designated term of successful compliance, the ignition interlock device restriction may be removed from the limited driving permit in person at a DDS customer service center for a fee of $100.00 (or $90.00 if removal of the restriction is requested by mail or other approved alternate means).  The removal fee is in addition to any reinstatement fee that may be required.

Driver’s License Suspension Under Criminal Law

O.C.G.A. § 40-5-63 provides for the terms and conditions governing the driver’s license suspension for any person convicted of DUI. Upon the first conviction, the suspension period is for 12 months. Like we saw before, after 120 days, you may apply to DDS for a reinstatement of your driver’s license (upon proof of Risk Reduction and restoration fee, discussed above).

Upon a second DUI conviction in the last five years (measured from the date of arrest), the suspension period is three years. You can still apply for reinstatement but would not be eligible for reinstatement until after ten months (as opposed to 120 days).

Upon a third conviction within the last five years, you will be considered a habitual violator and your driver’s license shall be revoked.

Periods of suspension under this code section begin on the date you are convicted of the offense. It is important to note that suspension time pursuant to an Administrative License Suspension under to O.C.G.A. § 40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating O.C.G.A. §40-6-391 which arises out of the same violation for which the Administrative License Suspension was imposed. O.C.G.A. § 40-5-67.2(b). For example, if your license was suspended for 6 months after an adverse ALS hearing and you are ultimately convicted of DUI, then you will receive credit for those six months towards time your license is to be suspended as a result of the conviction.

Call Us Today

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.           

[1] Suspension time pursuant to an Administrative License Suspension pursuant to O.C.G.A. §40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating O.C.G.A. §40-6-391 which arises out of the same violation for which the Administrative License Suspension was imposed. O.C.G.A. Code Section 40-5-67.2(b).

[2] O.C.G.A. § 40-5-64

[3] O.C.G.A. § 40-5-67.1

[4] https://dds.georgia.gov/documents/refund-request-form

[5] The information contained in this section is taken from DDS’ website: https://dds.georgia.gov/press-releases/2017-06-27/new-ignition-interlock-device-limited-permit-available-july-1st-updated

Serious Injury by Vehicle

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              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. 

What’s the Difference?

The difference between a felony and a misdemeanor is that misdemeanor crimes carry a maximum punishment of 12 months in jail, while felony charges 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 factos like the BAC 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.

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, 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, 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.

by Mary Agramonte

Field Sobriety: Horizontal Gaze Nystagmus

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What is Horizontal Gaze Nystagmus?


The HGN test evaluates abnormal eye movement caused by the influence of an intoxicant such as alcohol or drugs. Nystagmus is an involuntary jerking movement of the eye.[1] There are several forms of nystagmus or jerking of the eyes. Of the forty-plus types of medically recognized nystagmus, officers are trained on only three categories; vestibular, neural, and pathological disorders and diseases. Furthermore gaze nystagmus is only one of three types of neural nystagmus. Because there are so many types of nystagmus, it is easy for an officer to confuse the nystagmus they believe is caused by alcohol with another type of nystagmus not caused by alcohol but some other condition. Such other conditions include, but are not limited to: mental disorders, vertigo, inner ear fluid imbalance, head trauma, stroke, multiple sclerosis, diabetes, and stroke. Therefore, it is incredibly important the test be properly administered as to rule out other types of nystagmus not caused by an intoxicant which may mimic the nystagmus caused by intoxicants.

Measurements

Measurement of nystagmus is accomplished through three different methods. (These are known as the “six clues” recognized by NHTSA as valid indicators of HGN; that is, three clues for each eye). The first measuring technique is to look for lack of “smooth pursuit,” i.e., rather than following a moving object smoothly, the eye jumps or tugs. This technique is not a description of nystagmus. It is a condition that can result from many factors, such as the flashing blue lights of the officer’s vehicle or the passing lights of other motorists (optokinetic nystagmus).

           
The second method of measurement is to determine whether the nystagmus becomes more “distinct” when the eye is moved to the lateral extreme (so no white is apparent between pupil and outer edge of eye). Again, many people can have nystagmus or nystagmoid-like eye movement at this point of extreme lateral gaze and not be under the influence of alcohol or drugs.

           
The third method is to measure the angle of onset of nystagmus. By measuring the angle at which the eyes begin jerking. Nystagmus as a result of an intoxicant should begin at or before the 45 degree angle from the straight ahead gaze. There should be a fast component in the direction of gaze, with a slow recovery phase back towards center.

Pre-Test Checks

HGN testing should be preceded by a series of questions designed to ensure the subject is not medically disqualified from taking the test. “Officers are reminded to ask questions about the subject’s eye and general health conditions prior to administering the HGN test.”[1] Additionally, “if there are any abnormal findings on the pre‐test checks, the officer may choose not to continue with the testing. If HGN testing is continued, officers are reminded this does not follow the standardized protocol and should acknowledge such in any report.”[2] After asking these preliminary medical clearance questions, the officer is ready to proceed with administering the test.

Test Procedures

To properly administer the HGN test, the officer must:

  1. have the suspect remove his eye glasses;
  2. properly instruct the suspect that the officer is going to check his eyes and that his is to hold his head still and follow the stimulus with his eyes only and to keep following it until he is told to stop;
  3. hold the stimulus 12-15 inches in front of the subject’s face;
  4. check to determine if both eyes track the movement together (equal tracking), check for resting nystagmus (caused by certain medical conditions unrelated to alcohol consumption) and to ensure the pupils are of the same size (this step rules out other potential causes of nystagmus unrelated to alcohol consumption);
  5. keep the tip of the stimulus slightly above the subject’s eyes;
  6. always move the stimulus smoothly across the subject’s entire field of vision;
  7. always check for all 3 clues in both eyes, starting with the left eye;
  8. check the clues in this sequence: lack of smooth pursuit; distinct and sustained nystagmus at maximum deviation; onset of nystagmus prior to 45 degrees;
  9. always check for each clue at least twice in each eye;
  10. the typical time for each pass is two seconds out and two seconds back;
  11. when checking for distinct nystagmus at maximum deviation, the officer is to hold the subject’s eyes in the extreme position for at least four seconds;
  12. when checking for the onset of nystagmus prior to 45 degrees, it should take the officer 4 seconds to move the stimulus from the suspect’s nose to the angle—once jerking of the eye is first observed the officer is to stop moving the stimulus to ensure the jerking continues (validate nystagmus);
  13. total the clues (need to observe at least four out of six clues to indicate impairment); and
  14. check for vertical gaze nystagmus (separate test to determine if subject has taken a high dose for that particular subject).

Is HGN Accurate?


 In September, 2007, NHTSA conducted another study, “The Robustness of the Horizontal Gaze Nystagmus Test.” This study examined HGN in depth and, amongst other experiments, tested the false positive rates associated with improper administration of HGN. A false positive indicates a subject whose BAC was below 0.08 but the examiner nonetheless observed four out of six clues. The results were surprising. Evenwhen properly administered, 36.1% of test subjects falsely exhibited a positive result. Subjects whose stimulus was held too low (at eye level) exhibited a false positive rate of 52.7%.Subjects whose stimulus was held too high (four inches above eye level) exhibited a false positive rate of 61.1%. This is just one example of how one small error in administering the HGN test can produce a false result.

Summary

Attorneys need to be familiar with the instructor and participant NHTSA manuals, new case law, and the facts of their case to ensure the HGN test is properly administered and interpreted. As we saw, even the slightest deviation can compromise the validity of the test. For non-lawyers, it is important to know the HGN test, along with the other FSTs (discussed in Part III and IV), are entirely voluntary. Therefore, you should never consent to the participation of FSTs.           

  If you have been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

by Casey Cleaver

[1] Session 8, page 29 of 95.

[2] Session 8, page 29 of 95.

[1] The NHTSA manual defines Horizontal Gaze Nystagmus (HGN) as, “involuntary jerking of the eyes, occurring as the eyes gaze side to side. In addition to being voluntary, [the] person is usually unaware it is happening [and] the person is powerless to stop it or control it.” The Manual also states that, “alcohol and certain other drugs cause HGN.” Session 8, page 18 of 95.

Police Roadblocks

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Even the most seasoned motorists may never encounter a police sobriety roadblock or checkpoint during their entire driving history. Nonetheless, you should be armed with information regarding their validity and how to best approach them if you happen to drive towards one.

What is a Roadblock?

            In addition to the above factors,those arrested should urge their attorneys to be aware of local requirements regarding roadblocks, and subpoena all relevant records; although the road block may satisfy federal and state guidelines, it may fail the local arresting agency’s own policies.

            In determining the validity of a police roadblock, our courts analyze the following factors[1]:

  1. The roadblock was implemented pursuant to a checkpoint program that has, when viewed at the programmatic level, an appropriate primary purpose other than general crime control;
  2. The decision to implement the specific roadblock in question was made by a supervisor in advance, and not by an officer in the field;
  3. All vehicles that passed through the roadblock were stopped, rather than random vehicle stops;
  4. The delay to motorists was minimal;
  5. The roadblock was well-identified as a possible police checkpoint;
  6. The screening officers staffing the roadblock possessed sufficient training and experience to qualify them to make an initial determination as to which motorists should be subjected to field sobriety testing; and
  7. Under the totality of the circumstances, the stop of the defendant was reasonable under the Fourth Amendment.

What Should I Do?

            Now that we have seen what constitutes a valid police sobriety roadblock in theory, it is time to put the roadblock scenario into practice. If I see a roadblock coming what do I do? Am I allowed to evade it? The answer is . . . it depends. Drivers who violate a traffic law in order to avoid a police roadblock may be pulled over,arrested for said violation, and may be subject to further investigation by the police. However, drivers are entitled to take legal actions to avoid a roadblock, and police may not stop a driver from doing so, as long as the driver does not commit any traffic violations or other offenses while doing so.

An Example of a Roadblock

            For example, you are driving down a one lane road and you see a valid police roadblock ahead. However, the entrance to your apartment building happens to be 200 feet before the roadblock commences. You execute a legal turn into your apartment complex. A police officer at the roadblock sees you turn into the complex, follows your vehicle,and stops your vehicle. The officer’s hunch that you were avoiding the roadblock because you were intoxicated is, by itself, an insufficient basis to stop your vehicle.[2] As a result, most roadblocks are conducted on remote single lane roads so that an individual would necessarily have to break a traffic law in order to avoid them.

Call Us Today

             If you have been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

by Casey Cleaver

[1] Brown v. State, 293 Ga. 787 (2013); Williams v. State, 293 Ga. 883 (2013); Baker v. State, 252 Ga. App. 695 (2001); LaFontaine v. State, 269 Ga. 251 (1998); Indianapolis v. Edmond, 531 U.S. 32 (2000).

[2] Jorgensen v. State, 207 Ga. App. 545 (1993).

DUI- Vehicles

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Can I get a DUI on a bike?

It may be surprising to hear that the answer is yes, and that we have had these before, but it is true. Under Georgia law, you can get a DUI behind the wheel of many vehicles.

What’s the Law?

Georgia law makes it a crime to drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive; or the person’s alcohol concentration is 0.08 grams or more.[1]OCGA § 40-6-391 (a).

What constitutes a vehicle?

            A “vehicle” is defined in OCGA §40-1-1 (75) to mean “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” This is a very broad definition as opposed to the more restrictive definition of, “motor vehicle,” found elsewhere in the Georgia statute.

            “Motor Vehicle” is defined as, “every vehicle which is self-propelled other than an electric personal assistive mobility device.” Therefore, both “vehicle” and “motor vehicle” cover the following devices: 

  • Lawn Mowers
  • Golf Carts
  • Motorized Scooters (electric or gas)
  • ATV/ Four Wheeler
  • Tractors

            But, as we saw earlier, the Georgia DUI statute applies to any moving vehicle and does not restrict itself to motor vehicle. As a result, we are left with a very broad definition which coulden compass a wide variety of devices one would not ordinarily associate with the offense of DUI. Take for example the following devices:

  • Bicycles and Rollerblades
  • Hoverboards
  • Skateboards
  • Horse-drawn Carriage
  • Construction Equipment

            In summary, if you decide to have a drink or two, please consider the wide variety of devices that fall under the term, “vehicle,” so as to avoid an arrest for DUI. If you do find yourself arrested for DUI, call our office at 404-581-0999 and let experienced attorneys guide you through this process. 

by Casey Cleaver

[1] See Georgia Statute for full description