VIDEO – Everything You Need to Know about Your Georgia Criminal History Record

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Do you have a Georgia criminal history? Do you know what it looks like? What will your prospective employer or landlord see if they run it? Georgia criminal history records are the topic of today’s Peach State Lawyer video blog.

Hello, I’m Scott Smith and today we’re talking about your Georgia criminal history record, and why it is important for you to know what the information your Georgia criminal history record contains.

Your criminal history is a specific document tied to your name, date of birth, and social security number. It contains arrest and final disposition information, including whether you’ve ever been incarcerated in a Georgia jail or prison.

Arrest data includes the arresting agency, date of arrest, and charges. Disposition information relates to the final resolution of the charges through the court process, whether it be through a dismissal, reduced charges, guilty pleas, or result after trial.

Your criminal history is maintained by the Georgia Bureau of Investigation through their Crime Information Center.

Your criminal history is reported in cycles, with each cycle representing a separate incident. A cycle is created when you are fingerprinted, typically following an arrest and being booked into jail. Some minor offenses such as city or county ordinances or minor misdemeanor offenses may not result in you being arrested and fingerprinted, and will not be shown on your criminal history.

Georgia Law allows anyone access to any felony conviction on your criminal history that has not been removed after successful completion of any conditional discharge or first offender program. For anyone, including a prospective employer or landlord to have access to your complete criminal history, they must have your consent through a signed authorization form.

If you have a charge that has been record restricted or expunged, that cycle should not appear on your Georgia Criminal History Record when requested by anyone besides a government agency.

Georgia Criminal History Records can be requested at Sheriff’s Offices and Police Stations throughout the state for Twenty dollars. To request a full copy of your Georgia Criminal History, you will need a driver’s license or photo ID, your social security number, and date of birth.

If you look at your criminal history record and see something you believe should have been restricted or expunged, call our office at 404-581-0999 to discuss potential restriction or expungement options. Our team of experienced Georgia criminal defense attorneys can assist you in determining whether the charge can be restricted or expunged during a free consultation. Thank you.

VIDEO – Make Sure You Are Prepared to Attend Court in Georgia

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What should I wear to court, how should I act when  I’m there, what if I am super nervous about attending court? You must be prepared to attend court. These are topics we will be discussing in today’s Peach State Lawyer video blog.

Hey there, I’m Scott Smith from the Peach State Lawyer law firm talking to you today about preparations you should make in attending court in Georgia, whether it be the city of Atlanta or Superior Court of Cobb County, there are certain things you need to know to be prepared to attend court in Georgia.

First, be on time. Regardless of whether or not you have an attorney who is representing you or you are representing yourself, if you’re told to be in court, you need to be on time. That means be in the courtroom five to ten minutes earlier than the time stated on your court notice. As we all know traffic in and around Atlanta can be awful, I strongly recommend you become familiar with the traffic patterns from your home to the courthouse, parking at the courthouse, and the courtroom number you are going to. If you are super anxious about attending court ask your lawyer to meet you at the courthouse a day or a week in advance to introduce you to the courthouse and the courtroom.

One suggestion I have for our clients is to add a reminder in their phone that includes the judges name they are assigned, the case number, and courthouse information. That information is easily accessible when it is on your telephone which you will bring with you to the courthouse. If you are running late, call or text your lawyer to let them know your expected time of arrival.

If you don’t make it to court on time you could be subject to a bench warrant, fines, or even a Georgia driver’s license suspension. It might also have an impact on your pre-trial negotiations with the government’s prosecutors.

Next, dress appropriately. Certain courthouses have specific dress codes you must follow. But here’s a great go by.

Gentlemen, no shorts, no sandals, no tanktops, no ballcaps. Our office recommends you dress conservatively and professionally. We recommend wearing khaki pants and tucked in, collared shirt every time you appear in court.  It is not necessary to wear a suit or a jacket and a tie. We feel sometimes that is overkill. But it is important to show the court you are taking the matter pending against you very seriously.

Women, no open toed shoes. No exposed shoulders. No shorts. Again, we recommend dressing conservatively and professionally.

Next, turn off all phones and electronic devices while you’re in court. If a device goes off in court, it will most likely be taken and you may be subject to a fine or other penalty for contempt of court.

Pay attention to the bailiff and court staff. Most courtrooms will actually instruct you on courtroom procedures and decorum prior to the start of court. They will tell you if you are allowed to leave the courtroom to make phone calls or use the restroom without court permission.

Lastly, always stand when you hear the court or court clerk call your name.  In our experience 90 % of courtrooms expect you to stand to show you are present.

Following these guidelines will ensure you are prepared to attend court and your day in court runs smoothly.

If you’re facing an upcoming court date and want to ask questions about the nature of the charge you are facing or courtroom procedures call us today and schedule a free consultation. We’re available 24 hours a day, 7 days a week. 404-581-0999. Thank you so much.

VIDEO – Atlanta, Georgia Theft by Shoplifting Charges – Dunwoody, Alpharetta, Kennesaw

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I’ve received theft by shoplifting charges in Georgia, but my court notice says Dunwoody Municipal Court, what’s happening here?

Hello, I’m attorney Scott Smith and I’m here today to talk with you about shoplifting charges. We see a lot of theft by shoplifting arrests in metro Atlanta due to the number of shopping malls in the area. Lenox Mall, Phipps, Atlantic Station, Perimeter Mall, North Point Mall, Town Center, and all the other malls in the Atlanta area.

We also see a lot of shoplifting charges coming from stores like Walmart, Marshall’s, and TJ Maxx.

Many of these cases will originate in municipal courts like Atlanta, Dunwoody, Alpharetta, and Kennesaw.

A theft by shoplifting charge in Georgia can be accused as a misdemeanor or a felony depending on: the amount alleged to have been taken, the number of shoplifting convictions showing on your criminal history, and whether there was a pattern of recent shoplifting activity.

Shoplifting cases generally have two components. The first part is the criminal case. But often folks arrested for theft by shoplifting will receive a letter in the mail from law firms or collection agencies on behalf of the store asking for a payment for a civil penalty. We urge anyone watching this to consult with a Georgia attorney before making any payment to a law firm or collection agency due to this shoplifting charge. It could have an impact on your case.

It is important to state people who shoplift are not bad people. Generally the case comes down to one of three things. The person charged is sometimes depressed. It was an honest mistake such as an accidental concealment or not actually taking the item. Or finally the person thought they needed the item to survive or they were taking it for thrills. Ninety percent of the people we represent fall within the first two categories, depression or an honest mistake.

There are many was to resolve your theft by shoplifting charges in Georgia. Our office of experienced Georgia shoplifting attorneys can evaluate your case and tell you about potential defenses and outcomes. Let us help you today. Call our office at 404-581-0999. Thank you.

Driving While License is Suspended or Revoked – Violating Official Code of Georgia 40-5-121

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by Mary Agramonte

It happens every day in courthouses around Georgia. You forget about a court date and next thing you know you are being arrested for driving with a suspended license. Or, you may know that your license is already suspended, but you drive carefully in an effort to avoid being pulled over and discovered by the police and are ultimately arrested for a minor traffic violation due to the license suspension. The State of Georgia has enacted a statute O.C.G.A. 40-5-121 – Driving While License Suspended/Revoked to address this problem. The State of Georgia takes this crime very seriously, and has enacted mandatory minimums if you are convicted. Unfortunately, if convicted, Driving while your license is suspended or revoked carries severe consequences to your freedom, your driver’s license, and your wallet.

There are several reasons your license may have been suspended in the first place. Certain crimes result in mandatory suspension. If it is your first conviction of the following, your license will be suspended for at least 120 days. In many of these cases, pleading nolo contendere (also known as “nolo”), will not stop your license suspension.

Mary Agramonte is an attorney with W. Scott Smith P.C.

Mary Agramonte is an attorney with W. Scott Smith P.C.

• Suspended registration
• Fraudulent use of an ID / Felony Forgery related to an ID
• Any felony in which a vehicle was used
• Racing
• Hit and Run
• Vehicular Homicide
• Using a vehicle in fleeing or Eluding an Officer in a vehicle

Your license will also be suspended in the following scenarios:
• Refusing a chemical test in a DUI
• DUI Alcohol or Drugs conviction
• Driving on a Suspended license
• Failure to pay Super Speeder fine
• Failure to Appear in Court or Pay a Traffic Ticket
• No insurance
• Accumulating 15 points in a 2 year period


The Penalties of a Driving with a Suspended License

Unfortunately, there are MANDATORY MINIMUMS associated with this crime. If you end up with a conviction, the penalty will be the same no matter what. That is why it is imperative to hire a lawyer to fight your case and protect your freedom, your driver’s license, and your criminal record.

If this is your first time being arrested and convicted for Driving while License is Suspended, you will be fingerprinted and sentenced to at least two days in jail. The base fine will be at minimum $500.00, and with surcharges, you can expect to pay almost double that. Your license will go into suspension an additional six months, with no limited driving permit available, and you will have to pay high fines to have it reinstated.

For the second and third convictions in a five year period, you will be sentenced to at least ten days and up to 12 months in jail. The base fine will be at least $1,000, with the same surcharges making the fine much, much higher in reality. This is also considered a high and aggravated misdemeanor. Your license will go into suspension another six months, with high fees to have it reinstated.

If you are arrested and convicted a fourth time within five years, you will be guilty of a felony and sent to prison for one year at the very least. The base fine will be $2,500, plus the hidden fines.

If you have been arrested for driving with a suspended license, act quickly and give us a call. We will give you a FREE CONSULTATION on how we can help you fight your case. Our law firm has handled hundreds of cases involving driving with a suspended license all over the metro Atlanta area, so give us a call at 404-581-0999.

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.

Making A Murderer: Pointing the Finger in Georgia

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MAKING A MURDERER: Pointing the Finger in Georgia

The Netflix documentary Making a Murderer brought to light several issues with our justice system. Two of the most important issues a defense attorney has to overcome is the “presumption of guilt” presented by the media, and the loss of exculpatory evidence caused by poor police investigations.

“Presumption of Guilt”

“All due respect to counsel, the state is supposed to start every criminal trial swimming upstream. And the strong current against which the state is swimming is the presumption of innocence.” – Dean Strang, co-defense counsel for Steven Avery.

Many times, the media will broadcast inflammatory stories regarding pending investigations. Regardless of the truth of the stories, they tend to irreparably tamper with the minds of the prospective jurors months or even years before the trial begins.

The law requires jurors to give the defendant the presumption of innocence, but many jurors are already biased against the defendant because he has been charged with a crime and is seated at the defense table. High-profile cases present an additional hurdle because the jurors have already heard many untrue facts about the case from the media.

We rarely encourage clients to make statements to police or media since those statements can be used against them at trial. In fact, the best way to truly prove one’s innocence to the public is to have a jury find you NOT GUILTY. However, every case is unique, and we use our experience with high-profile cases to develop a plan to counteract this media bias. Recently, our firm counseled Marcus Lewis, the Uber driver who was wrongly accused, and advised him to speak with the police with our support. He was exonerated in less than 24 hours, and no charges were ever filed from the police. Learn more about that case here: http://www.11alive.com/story/news/crime/2015/12/29/uber-driver-defends-reputation-after-social-media-allegations/78031302/

It Was the Other Guy

In Making a Murderer, Steven Avery’s attorneys were unable to accuse any specific person of committing the murder. Instead, they had to focus on the poor investigation conducted by the police in general. The Judge limited Steven’s defense due to Wisconsin law. There, a defendant cannot point their finger and allege that a third party committed the crime unless he can present evidence of the third party’s motif, opportunity, and a direct connection between the third person and the crime charged.

In Georgia, the standard is much lower than that in Wisconsin. The defense here only has to present evidence that “renders the desired inference that [the other guy] committed the crimes . . . more probable than would be that inference without the evidence.” Henderson v. State, 255 Ga. 687, 689 (Ga. 1986). All the defense needs is enough evidence “to raise a reasonable doubt of defendant’s guilt in the mind of a juror.” Essentially, the defense needs to present the jury with an alternative that makes a single juror question whether it is possible the defendant did not commit the crime, and that someone else did.

Even though Georgia has a lower standard than Wisconsin, it can still be tough to gather evidence that someone else committed the crime when the police have conducted a careless investigation. In these situations, it is imperative that we get involved as early as possible to ensure that we are able to do our own investigation and gather our own evidence before it is too late. If you have been charged with a crime, please contact our office today at 404-581-0999 for a FREE CONSULTATION in our office so that we can begin working on your case immediately.

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.

SELF DEFENSE

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Self Defense

Defense of Persons and Property in Georgia and the Effect of the “Stand Your Ground” Law

As discussed previously, [Murph’s blog- http://www.peachstatelawyer.com/self-defense/] self-defense is a justification defense where an individual is admitting that he or she committed the crime but claiming that his or her use of force was justified.

Self-defense is part of a broader set of statutes that define the situations in which a person is justified in using force. In Georgia, an individual is typically justified in using force to defend both persons and property. See O.C.G.A. § 16-3-21; O.C.G.A. § 16-3-23; O.C.G.A. § 16-3-24.

Determining whether an individual was justified in using force requires a multi-factor analysis which varies greatly depending on the specific facts of the encounter. Some of the factors include: who was the aggressor, whether the harm was imminent, whether the force was proportional, and whether the individual’s belief was reasonable.

The individual claiming justification cannot be the aggressor.

An altercation can progress in stages, and the initial aggressor can become the innocent party if the other party escalates the altercation to a more violent level. Therefore, an individual who pulls out a knife during a fist fight can be deemed the aggressor even though the other individual initiated the fist fight. In this example, the individual wielding the knife can also withdraw from the confrontation by taking affirmative steps to indicate that he does not wish to fight any more. Such indications might include verbally communicating a desire to end the fight and walking away.

The individual must believe that he or she is defending against the imminent use of unlawful force.

The individual must believe that he or she is in imminent danger which means that the aggressor must appear to be capable of immediately carrying through with the threatened use of force. The individual can even be mistaken in their belief that he or she was threatened by imminent harm so long as the mistake is reasonable. If there has been a pause in the altercation (ie. the aggressor walks away) or additional steps must be taken before the aggressor can carry through with his or her threats then the danger is no longer imminent.

The individual’s use of force must be proportional to the threatened harm.

Generally, force can be divided into two main categories, deadly and non-deadly. An individual’s use of force must be no greater than necessary to defend against the threatened harm. A citizen is typically justified in using any means of non-deadly force to defend persons or property, but deadly force is only justified in response to a threat of imminent deadly force. The use of a deadly weapon is almost always considered deadly force, but even someone’s fists could be considered deadly force when considering the difference in size between the two individuals and relative strength.

The individual’s belief that force was necessary must be reasonable.

The standard by which reasonableness is measured is both subjective and objective. To satisfy the subjective standard, the individual must actually believe that force was necessary. This is where the individual’s prior dealings and experience with the aggressor can come into play. The objective standard looks at whether a reasonable person would have believed that force was necessary to defend against the threatened harm.

No Duty to Retreat – “Stand Your Ground” Law

In some states, an individual has a duty to retreat. However, Georgia has removed this requirement by passing a so-called “Stand Your Ground” law. O.C.G.A. § 16-3-23.1. Under this law, a citizen is not required to retreat from a violent confrontation. The key here is that an individual is not required to retreat, but the decision not to retreat can still factor into the previous considerations such as the reasonableness of the belief that force was necessary. Thus, this law does not give an individual unfettered discretion to use force.

Although Georgia has enacted statutory protections to allow an individual to stand his ground, one should not accept this protection as a license to kill. Any time deadly force is used, police will be involved and the decision to use deadly force will be scrutinized. It is always best to attempt to de-escalate a situation and avoid any loss of life. However, we recognize that these decisions can take place in a matter of seconds, and our firm has a history of success with self-defense cases. [Scott’s case – http://www.ajc.com/news/news/crime-law/woman-found-not-guilty-of-murder-in-killing-at-eas/nmyM4/] If you believe you had every right to defend yourself, others, or property, then contact our office today at 404-581-0999.

DUI: Forced Blood Draws

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DUI: Forced Blood Draws

By Mary Agramonte

The most shocking and disturbing development in DUI law is the practice of forced blood draws. Picture this: You have a glass or two of wine and are pulled over on your way home. The officer asks you a couple questions, but eventually requests you to step out of your car. He asks you to do a series of voluntary field sobriety tests, which are supposedly designed to accurately detect DUI. You do so in an effort to prove to the officer that you are clearly able to drive and are not impaired at all.

However, not everyone has the same balance and coordination skills. You might have been the kid in school who was picked last for team sports because you were notoriously uncoordinated. Or you might have a bad back or are recovering from a knee surgery. Or maybe you are one of the many people who feel extreme nervousness when an officer pulls you over. Regardless, the officer asks you to stand on one leg, and you accidentally have to tap the ground and hold your arms up to keep your balance. You “fail” the test, and are immediately arrested.

Mary Agramonte received her juris doctorate degree from Georgia State University.

Mary Agramonte received her juris doctorate degree from Georgia State University.

At this point, you might decide to refuse the breath test since your efforts to demonstrate that you are not intoxicated have already proven completely useless. You probably have heard that it is best practice to decline a breathalyzer test, which is true. However, the reality is when you refuse a breathalyzer, it is likely your driver’s license will be suspended for a year under Georgia’s Implied Consent law at O.C.G.A. § 40-5-67.1(d). The law states that yes, you have a right to refuse a chemical test, but if you do, you may face a one year loss of all driving privileges. And now, a more disturbing reality may come after your refusal of a breath test. In 2006, the Georgia legislature added another section to the Implied Consent law, effectively stating that even after exercising your right to refuse a chemical test, that the evidence can still be obtained by a search warrant, against your will.

The Reality of Forced Blood Draws

As inconceivable as it may sound, Georgia law actually allows the police officer to take you to the jail to strap you to a table, place you in a head lock, and force a needle in your arm to get evidence of your blood alcohol level. Forced blood draws occur without your consent and completely against your will. The procedure that includes the gurney, straps, and headlock is the same in every case, even if you are compliant and are no longer refusing the test. Forced blood draws allow the State of Georgia to have a higher DUI conviction rate since the blood evidence will significantly strengthen their case.

CHECK OUT THE FOX 5 ATLANTA STORY ON BLOOD DRAWS: Fox 5 Atlanta Blood Draw Story

What about my Constitutional rights?

The Fourth Amendment to the Constitution guarantees the right to be secure from unreasonable searches, and that search warrants must be supported by probable cause.

Unfortunately, current Georgia law allows police officers to make a quick roadside phone call to a judge to obtain a search warrant to obtain a blood sample from that individual. All they need is probable cause that you are driving under the influence. Evidence might come from your performance on the voluntary field sobriety tests, your appearance (blood shot eyes, disheveled clothing), and your behavior (smell of alcohol, slurred speech, admissions). These factors tend to be very subjective and it is all in the hands of the arresting officer to determine what he saw.

The law and reality is troubling. With this knowledge, I hope that Georgia residents can prepare themselves for the possibility that the officer won’t take “no” for an answer when it comes to getting a hold of your blood in order to prove in court that you are guilty of the misdemeanor crime of driving under the influence. If you are pulled over, you can politely decline all field sobriety and chemical tests, but be informed about the possibilities of losing your driver’s privilege and even being held down to have a needle forced in your arm.

Do I need a Lawyer?

Yes. If you have been arrested for driving under the influence of alcohol or drugs, and then forced to submit to a blood test under a search warrant, please call our office to speak with an experienced DUI attorney. We know the ways to attack every facet of a DUI case, even a forced blood draw. Call us today for a FREE CONSULTATION at 404-581-0999 and maximize your chances of excluding the blood results in your day in court.