Field Sobriety Testing

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Field Sobriety Testing

Field Sobriety testing is the most common tool law enforcement officers use to establish probable cause to place Georgia citizens under arrest for DUI.  While field sobriety testing has evolved over the years, the National Highway and Traffic Safety Administration (NHTSA) has standardized three tests to be used in every DUI alcohol investigation.  The battery of three tests include the horizontal gaze nystagmus test, the walk and turn evaluation, and the one leg stand evaluation.  Police Officers throughout our Georgia have been trained on how to perform and interpret NHTSA’s field sobriety tests.  However, a close examination of field sobriety testing shows that these tests establish a low threshold in determining whether a driver is under the influence of alcohol.  Let’s go through each of the three tests in turn and discuss how they work.

Horizontal Gaze Nystagmus (HGN)

The horizontal gaze nystagmus test is commonly referred to as the “eye test.”  I meet clients every day who tell me that they feel like they passed the “eye test” because they were able to follow the officer’s pen or finger (“stimulus”) during the examination.   Often, the Officers don’t explain that they aren’t looking to see if the driver is tracking properly.  Instead, the Officer is looking for a medical condition called horizontal gaze nystagmus.   Horizontal meaning left to right, and nystagmus meaning the involuntary jerking of the eye.  The Officer is trained to position his pen or finger slightly above eye level and approximately 12-15 inches away from the driver’s nose.  The Officer then is trained to do a series of passes moving the stimulus right to left and at variable speeds.   Ultimately, the Officer is looking for 3 different “clues” of impairment (6 total for both eyes) to look for in each eye.  While the Officer is going side to side, he is looking to see if the eye jerks at different portions of the test.  NHTSA has trained Officers that if a driver displays four of the six possible clues, they are deemed to be impaired by alcohol.

Anyone who has ever been to the eye doctor knows that the first thing the doctor does is turn off the lights to eliminate any distractions from the patients field of vision.   The idea is the doctor will be able to focus on the subtle differences in someone’s eyes and be able make sure the symptoms being observed are not being caused by an outside distraction.  The horizontal gaze nystagmus test was originally designed for doctors, not police officers.   Neurologists and Optometrists use this test to find different types of medical conditions, not necessarily alcoholic impairment.   However, NHTSA trains officers to use this test on the side of the road, which is not a controlled environment.  In addition, nystagmus is often very subtle and it can be mistakenly observed if the eye being distracted by outside movements.

For a lawyer, examining the horizontal gaze nystagmus test means that we must examine the dash board video (if there is one) to determine if the Officer did the requisite number of passes.  Unfortunately, there is no way for us to retroactively look back to see if a driver’s eyes were jerking or shaking because the camera is often positioned 15-20 feet away from where the test is be conducted.  However, our lawyers can use the timing and execution of the Officer’s passes to determine whether that aspect of the test was conducted properly.   In addition, the Officer’s knowledge or lack there of, the science behind the horizontal gaze nystagmus test can shed light to the jury on the Officer’s credibility.   Ultimately, the horizontal gaze nystagmus test is a difficult test for Officer’s to accurately administer, especially on the side of the road.   Unfortunately, Officers across Georgia place a heavy emphasis on the horizontal gaze nystagmus examination, an examination that was not originally designed for field sobriety testing.

WALK AND TURN EVALUATION

The next two tests, the walk and turn evaluation and the one leg stand, are considered agility tests that are supposed to demonstrate a driver’s coordination and balance.  NHTSA refers to these tests as “divided attention” tests.   Driving is a divided attention task, which means our bodies go through several different tasks, simultaneously, while driving.  For example, we may have to check our mirrors while applying the break.  Or we may have to speed up while turning the wheel.   We certainly take these tasks for granted because our minds perform these tasks subconsciously.  But, our minds are constantly moving while we’re driving.

To determine if someone is impaired, or unable to multi-task while driving, NHTSA designed agility tests that would simulate the body functions needed to be a safe driver.   So, Officers are trained to first conduct the walk and turn evaluation.   The evaluation is broken up into two phases the instructional phase and the walking phase.   The instructional phase consists of the Officer placing the driver into the “starting position” and watching to see if the driver stays in that position while the Officer explains the walking phase.  The driver is not aware that the Officer is actually looking for two things, whether the driver starts too soon or if they break the starting position.  In fact, the driver is completely unaware that the examination has even begun.   Interestingly, the Officer only needs two “clues” of impairment on this examination to place a driver under arrest for DUI.   So, if the driver starts too soon or breaks the heel to toe position, then the driver has already failed the examination.  Even before starting to walk the line.

The driver then is instructed to walk nine steps out and make the required turn (almost everyone messes up the turn) and walk nine steps back.   During the walking phase the Officer is looking for “clues” of impairment.   For example, if the driver were to miss touching his heel to toe by an inch, then the driver has shown a “clue” of impairment.   The examples could go on for days, but what’s important to note is there are 76 opportunities to show a clue, if the driver shows 2, then NHTSA indicates the driver is impaired.  What this means is that a driver could complete 97% of the evaluation perfectly.  But, according to NHTSA, the driver would still be deemed an impaired driver.  Doesn’t seem fair, does it?

ONE LEG STAND EVALUTION

The one leg stand evaluation is the final agility test and it’s almost as ridiculous as it sounds.   The Officer is trained to have the driver hold one leg in the air, approximately six-inches off of the ground, and have the driver count out loud.    The driver is not informed of how long to hold their leg or the purpose of the test.  Instead, they are instructed to just count.    The Officer then will watch for four “clues of impairment.”   If the driver hops, that’s a clue.  If the driver puts their foot down, that’s a clue.  If the driver sways in any direction while trying to balance, that’s a clue.  Finally, if the driver raises their arms for balance, that’s a clue.   The Officer only needs two clues to establish, under the NHTSA standards, that someone is impaired. mock-dwi-sobriety-test

I often tell juries: “thank goodness there is a video.”    Because the video will always tell the truth.  Jurors are smart.  They understand when someone looks like they aren’t safe to drive or when they are merely being shown evidence of examinations that are designed to fail.   The video will often show that.   And if there isn’t a video in your case, then our lawyers are trained to show the jury how the NHTSA field sobriety tests really work and whether or not they live up to what they are designed to do.   If you’ve been arrested for DUI, don’t just go in and plead guilty.  Our lawyers are trained on how to evaluate DUI cases and determine whether or not the Officer’s field sobriety testing is enough to put a permanent conviction on a Georgia citizen’s criminal history.   For a free consultation call 404-581-0999.

10 day Letter

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10 Day Letter

Over the years our firm has handled thousands of DUI cases.  We’ve probably seen every issue you can dream of.  But a common thread that every DUI case shares is the importance of immediately appealing any petition to suspend your license.  We do this by filing what is commonly referred to as the 10 day letter.

Any time you’re arrested for DUI in Georgia, you actually have two cases.  The first case is a criminal case and it pertains to the tickets the Officer gave you at the jail.   But that’s not where it ends.   A person arrested for DUI in the State of Georgia may also have a civil case pertaining to their driver’s license.  Georgia law allows a police officer to submit a form (DDS 1205; See Ryan Walsh’s  blog on 1205s) to the department of driver services requesting that your driver’s license be suspended.   sample1205picThe Officers are trained to take your driver’s license and attach it to the form.  The Officer will then give you a copy of the form, which will act as a driver’s license for thirty-days.  On the back of the form there is a procedure on how to appeal any petitions to suspend the driver’s license.  You have ten business days from the date of your arrest to file a formal appeal to the Department of Driver Services through the State Office of Administrative Hearings in order to challenge any petitions to suspend your license. This is where the 10 day letter comes into play.

Part of the services we provide in every DUI case is sending off the ten day letter for our clients and handling any subsequent appeal that may arise.   Sending off the 10 day letter will trigger an administrative license suspension hearing with the State Office of Administrative Hearings.  At that hearing there are several different options available to our clients with regard to their driver’s license. We tell every client that the status of a driver’s license during a DUI case can be complicated.  Allow our lawyers to eliminate the headache and insure that not only your rights are protected, but also your driver’s license.  If you have been arrested for DUI, please call our office immediately at 404-581-0999 to set up a free consultation.

Self-Defense

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Self-Defense

Self-defense is the most common defense to any murder, aggravated assault, battery, family violence battery, assault, or any other crime involving an act of violence.   Most people feel comfortable with the idea of defending themselves from harm.  In fact, it’s a natural reaction to defend your body from imminent harm.  But many Georgia citizens are not aware of how the law defines self-defense and often find themselves in a lot of trouble when the police feel that their actions didn’t conform with the law. Female self defense

In Georgia, self-defense is considered a justification defense. O.C.G.A. 16-3-20.   A justification defense applies when someone, who is charged with a crime, admits that they did in fact commit the crime, but they were justified in doing so, and thus cannot be convicted.   For example, someone who is being attacked by an angry neighbor fights back, striking the neighbor on the face with a closed fist.   Ordinarily, striking someone on the face would be a battery, but if you’re justified in striking the other person (self-defense) then the law says you cannot be convicted of that crime.  So how does someone establish a justification of self-defense?  Georgia law provides that:

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm ONLY if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” O.C.G.A. 16-3-21.

As you can see from the legal definition of self-defense, the use of force can easily be misinterpreted by a police officer as being too much or not necessary.   Because of that, we often see clients who come in saying they were exercising self-defense techniques to prevent themselves from being harmed, but nonetheless they are still being charged with a crime.  Often, self-defense claims must be presented to a jury to sort out the mixed question of fact and law.  The jury is charged with the same definition listed above and would have to make the determination as to whether or not someone charged with a crime was justified in their actions.

If you have found yourself in a situation where you believe you had every right to defend yourself, contact our office today at 404-581-0999.  Our lawyers are trained to take case to trial and fight for what is right.

Failure To Maintain Lane

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Failure to Maintain Lane

A citation for failure to maintain lane is one of the most common citations we see every day.  Whether you are charged with DUI, a car accident, or even a drug case, failure to maintain lane is one of the primary traffic offenses an Officer will cite when writing a ticket.  Many Georgia citizens assume that failure to maintain lane is weaving all over the road, that’s not always the case.swerve_road1

In Georgia, the law says: “a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” OCGA 40-6-48.   Many courts have interpreted a driver merely tapping either white or yellow lines, without a valid justification, failure to maintain lane.   For instance, suppose you’re going down the road and you’re coming up on a turn.  As you approach that turn your right-side tires brush up against the solid white line on the right side of the road.  In Georgia, that’s enough to constitute a ticket for failure to maintain lane.   On the other hand, suppose you’re driving down the road and a deer runs out in front of your vehicle.  Naturally, you swerve out of the way to avoid hitting the deer.  In that situation, you would not have violated the failure to maintain lane statute.

So where does this come up?  Often, we have clients who are pulled over by a DUI task force Officer for merely tapping the line.   More often than night, these Officers patrol areas known for having clubs and bars that stay open late.  The Officers are trained to look for individuals who are leaving those areas and will follow drivers until they have a reason to pull them over.  That’s where failure to maintain lane comes into play.  Remember, if you tap the line, then it’s enough for the Officer to pull you over.  Once the Officer pulls you over he/she can then further investigate a DUI, if he/she feels there is additional evidence to explore; such as the odor of alcohol.   Many drivers who are cited for DUI often have a failure to maintain lane citation too.

We also see failure to maintain lane citations in the context of traffic accidents.  Many Officers will cite the “at fault” driver for a violation of a Georgia traffic law.  Examples of failure to maintain lane in a traffic accident case include, striking a fixed objects, hitting a parked car, or even hit and run.  Often, a ticket for one of these offenses will also include a ticket for failure to maintain lane.

Frequently we will see clients who are charged with a drug crime cited that started as a minor traffic violation, such as failure to maintain lane.  Remember, all it takes to get pulled over for failure to maintain lane is the wheels of a driver’s vehicle tapping the line.  Thus, many officers who are working on drug task forces will search for minor traffic violations, such as failure to maintain lane, to stop a vehicle and ultimately search that vehicle if other evidence is present.

By itself, a ticket for failure to maintain lane is a misdemeanor that will often result in a small fine and three points on your driver’s license.  But, as you can see above, there are many different ways a failure to maintain lane violation can affect you as a driver.   If you have been charged with failure to maintain lane or any crime as a result of a traffic stop, please contact our office immediately at 404-581-0999.

Lesser-Included Offenses

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The Rule of Lenity and Lesser-Included Offenses

Last time, we talked about the problem of being overcharged.  Now, what are some remedies?  How can you combat the issue of the prosecution over-reaching?  We are going to discuss two possible remedies…

First, Georgia recognizes an unsung hero among principles of law: the Rule of Lenity. Law books

The Rule of Lenity is a legal principle that says if identical conduct, as charged, would support a conviction for two crimes with different penalties, then the person shall be punished only for the offense carrying the lesser punishment.  However, this analysis is not so simple in practice.  It is case-specific and very fact-intensive.

Second, there is a possibility that the judge will give a jury charge on lesser-included offenses at trial.  The law provides that a person accused of a crime may be convicted of a lesser offense if it differs from the more serious offense in that there was a less culpable mental state or that a less serious injury or risk of injury is involved.  So, was your conduct reckless or negligent rather than intentional?  Was the act, or result of the act, less serious than the State alleged?  Here again, this analysis is very case-specific and fact-intensive.  

If you or someone you know has been overcharged by the State, please let one of our lawyers help you.  We are always available to talk with you about your case: (404) 581-0999.

Overcharged

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The Prosecution Overcharged My Case!

            I have seen the prosecution overcharge cases on multiple occasions.  The prosecutor’s office will, at times, define your alleged conduct as something much worse than it is.  A misdemeanor will be elevated to a felony, for example, or a felony will be charged as one carrying much more punishment than it should.  That doesn’t sound like truth and justice, does it?

There can be several reasons for a case to be overcharged.  Until defense lawyers get involved, the prosecutors (who are human beings) hear only one side of the story.  The police or the complaining witnesses unload with their side and the prosecutor doesn’t hear a word to the contrary.  And, unfortunately, defense lawyers may not be involved until the case has already been accused or indicted.  (There are exceptions…especially when the lawyer is hired early in the process and there is some form of evidence to support an opposing position).  So, acting only on the word or evidence given by the complainant, the prosecutor files the accusation or indicts the case.  It is extremely important for the lawyer to be thorough when talking to the client and finding out, in detail, what the facts of the case are.

Another reason that cases might be overcharged is that the prosecution is already thinking ahead to plea bargaining.  One prosecutor explicitly told me that he added the biggest charge in the indictment in hopes that he would work a plea to the lesser charges without too much hassle.

Sad?  I think so.  I am convinced that the anxiety people experience leading up to the disposition of the case is twice as bad as whatever punishment may be inflicted.  So many of my clients have suffered long, sleepless nights, loss of their jobs, broken relationships, substance abuse, and many other side effects of being charged with a crime (please note that I did not say convicted of a crime).  That is yet another reason to go early in the process to talk with a lawyer who believes in the presumption of innocence and who treats each client like a unique, special human being.  We take on the burden of your case for you.  We provide you with honest feedback that can give you peace about the situation and, hopefully, enable you to think about everything else going on in your life.  I like to think that my clients are able to dump the burden of the pending case on me and put their time and energy towards their kids, their jobs, their significant other, their hobbies, and everything else going on in their lives.

In my next blog, I will discuss some ways to combat overcharging by the State.

Always feel free to call us with any questions about your case.  You will get to speak with an attorney free of charge.  (404) 581-0999.

Hit and Run

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Hit and Run

Do you know your responsibilities when involved in a car accident in the State of Georgia?  Many people don’t.  Every day, Georgia drivers find themselves charged with one of the worst traffic offenses someone can have on their driving record, hit and run.

Every person driving on Georgia roads has five distinct responsibilities that they must adhere to when involved in car accident involving death, injury, or damage to someone else’s vehicle.   The responsibilities must be met in order to avoid being charged with hit and run.

First, if you are involved in a car accident involving damage to another vehicle, injury, or death then you must provide the other driver your name, address, and the registration number of the vehicle you are driving.   Next, upon request, you must present your operator’s license (driver’s license) to the person struck or the driver or occupant of the other vehicle.  If someone is injured, you are required to give reasonable assistance to that person, including transporting or make arrangements to transport the person to a medical professional.  Also, if the other driver is unconscious or deceased, you must make every reasonable effort to contact medical services and local law enforcement (Call 911).  Finally, and most importantly, you must remain at the scene of the accident until all of the requirements mentioned above are fulfilled.

Most of the requirements seem to be common sense.  But a common, and unfortunate situation, is when a Georgia driver is involved in a car accident where both parties appear to be ok and there is little damage to the vehicles.  The other driver, we’ll call him John, tells you: “Everything is fine.  I don’t think we need to call the cops.”  Initially, you think that everything is fine and you can go about your business, only to later find out that “John” has called the police and reported the accident.   To make matters worse, “John” let the police know that you left the scene!   The police can then go the magistrate court and take a warrant for hit and run, leaving you with an active warrant for your arrest…

Sound like a nightmare? Believe me, it is.driving-car-accident

A conviction for a hit and run charge can result in severe consequences on your criminal history and the suspension of your driver’s license.  If someone is injured or dies as a result of the accident, then you can be charged with a felony and face up to three years in prison.   More common, if there is damage to other driver’s vehicle, and you are convicted of hit and run, you can receive up to twelve months in jail and $1000 fine.  And if that’s not enough, a conviction for hit and run will suspend your driver’s license.

If you have found yourself charged with hit and run, do not go to court and just plead guilty.  Contact our lawyers immediately to discuss your options and how to protect your rights going forward.  Our lawyers are trained to handle hit and run cases and are available for a free consultation.  Please call 404-581-0999 to setup a consultation as soon as possible.

Criminal Trespass

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CRIMINAL TRESPASS

No_trespassing_by_Djuradj_Vujcic

In Georgia, there are several ways you can get charged with criminal trespass.  The law provides:

  1.  A person can be charged with criminal trespass if that person intentionally damages another’s property, without consent, and the cost of the damage is $500 or less.
  2. Criminal trespass can be the knowing and malicious interference with another person’s personal property. Meaning that a person withholds another’s property without their permission.
  3. Criminal trespass can also be entering the property of another after being instructed by the rightful owner to not return.
  4. Another variation of criminal trespass is when a person is told by the rightful owner of the property at issue to leave the property and that person remains on the property.
  5. Entering onto someone else’s property with the purpose of committing an unlawful act can be considered criminal trespass.
  6. Finally, defacing a monument, grave site, or memorial dedicated to a service member of the United States military or the Confederate military can be deemed criminal trespass under Georgia law.

As you can see, there are several ways someone can be charged with criminal trespass.  The most common form of criminal trespass that we see stems from arguments between family members.  We all know that families argue.  But sometimes those arguments can escalate beyond just words and can result in damage to property.  When that happens the police often get involved.

When the police arrive they tend to immediately gravitate to the person who first called 911. The police officers are trained to separate all of the parties involved so that there are no additional arguments.  Often, the police receive a very one-sided version of the story and are shown a piece of property that the other person is alleged to have damaged.   The police officers will confront the accused with the property and try and get a confession.   If that person does not say anything then it generally result in the accused being charged with criminal trespass.

We also see criminal trespass cases in the context of young people going onto someone’s property for a prank.  Everyone has heard the stories of the neighborhood kids throwing toilet paper on the trees of the perceived “mean guy” in the neighborhood.  Well, in Georgia, that can result in being charged with the misdemeanor offense of criminal trespass.

There are several different variations of criminal trespass.  If you or someone you know has been charged with criminal trespass, please call the office immediately at 404-581-0999.

SB-440

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Being Charged as an Adult in Georgia

Part 1: SB-440: Automatic Transfers to Superior Court

 In 1994, Georgia enacted State Bill 440 (more commonly referred to as SB-440) to “provide that certain juvenile offenders who commit certain violent felonies shall be tried as adults in the superior court. This SB-440 law granted adult courts exclusive jurisdiction over criminal cases involving juveniles (ages 13-17) who are charged with one or more of the following “Seven Deadly Sins”:

  1. Murder
  2. Armed Robbery with Firearm
  3. Rape
  4. Voluntary Manslaughter
  5. Aggravated Sexual Battery
  6. Aggravated Sodomy
  7. Aggravated Child Molestation

 

O.C.G.A. 15-11-560(b)

In essence, juveniles (age 13-17) charged with one of the above-mentioned crimes in Georgia will automatically have his or her case  transferred from juvenile court to superior court, where he or she will be charged, tried, and punished as an adult. If convicted and sentenced to prison, the juvenile will not be sent to a Youth Detention Facility through Georgia’s Department of Juvenile Justice. Instead, the juvenile will be housed with other juvenile inmates in the custody of Georgia’s Department of Corrections until he or she reaches the age of 17 and is thrown into the general prison population.

Occasionally, at the discretion of the prosecutor, a SB-440 case may be transferred back to juvenile court after “after investigation and for cause” if the case has not been indicted yet. By contrast, after indictment, a SB-440 case can only be transferred to juvenile court for “extraordinary cause.” O.C.G.A 15-11-560(d), O.C.G.A. 15-11-560(e). Therefore, time is of the essence when it comes to advocating for the case to be transferred back to juvenile court.

If you know someone charged as an adult with an SB-440 crime, PLEASE contact us at the Law Offices of W. Scott Smith. We would be happy to help you with your case and answer any and all of your questions about juveniles charged as adults.

Open Container

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OPEN CONTAINER 

Think about this scenario for a second.  You’re driving home with your significant other from a dinner party.  As you’re driving  you begin to discuss with your passenger how wonderful the evening was, especially the fantastic wine that you drank.  You’re thrilled that your dinner host graciously gave you the rest of that wonderful red wine that they brought back from Italy.  Next thing you know, you look up and you see blue lights in your rear view mirror.  Now, you know you may have been driving too fast, but nonetheless you expect to get a either a warning or a speeding ticket.

The Officer approaches the car and sees that you have a bottle of wine, with the cork lodge tightly on top, sitting in your back seat.  He says: “Ma’am, I pulled you over for speeding and it looks like you have got an open container in the back seat!”  OPEN CONTAINER!?  That’s right, now you have another ticket to worry about…

open-container

In Georgia, it is illegal to have an open bottle of an alcohol beverage in the passenger area of a motor vehicle. O.C.G.A. 40-6-253.   We often think of open container in the context of someone driving down the road with an open beer or maybe a mixed drink in a solo cup.  But it can also constitute someone carrying home an already open bottle of alcohol.  In fact, Georgia law defines an “open alcoholic beverage” (open container) as any bottle, can, or other receptacle that contains ANY amount of alcoholic beverage and: (1) is open or has a BROKEN SEAL; OR (2) the contents of which are partially removed.

So be careful out there! If you’re one of those lucky folks who gets the gift of a fine wine from Italy, go ahead and put it in the trunk.   That will avoid any headache with the police officer believing your impaired AND will help avoid you getting ticketed for open container.

However, if you have found yourself with an open container violation, please contact the office immediately at 404-581-0999.