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DUI IN THE MUNICIPAL COURT OF ATLANTA

By: Attorney Erin Dohnalek

After an accused has been arrested for a DUI, if one of the following occurred, an accused MUST send the 30-day appeal letter to attempt to save his/her driver’s license:

  1. After the accused has been arrested, an officer on scene from the Atlanta Police Department read him/her the correct “Implied Consent” notice and he/she refused to comply with either a blood, breath, or urine test in order to determine his/her blood alcohol content, OR
  2. The accused consented to a blood, breath, or urine test and the results showed that the blood alcohol content of the accused was above the legal limit.

If one of the following occurred, it is of vital importance to send the 30-day appeal of the license suspension letter prior to the deadline or risk the suspension of the accused person’s driver’s license. The suspension could last as long as 1 year.

After sending the 30-day letter, the accused must also be ready to defend his/her criminal allegations. The penalties for a DUI conviction are serious, thus, it is of great importance to hire an experienced criminal defense attorney who understands all of the elements of the offense, the affirmative defenses to such a charge, and all possible options for the accused.

According to O.C.G.A. § 40-6-391, a person commits driving under the influence of alcohol or drugs when it renders them less safe to drive, the person’s alcohol concentration is .08 or more at any time within 3 hours after such driving occurred, or there is any amount of marijuana or other controlled substances present in the accused person’s blood, breath, or urine.

Once the Atlanta Police Department transfers the criminal charge to the Atlanta Solicitor’s Office, the criminal case will begin at a proceeding known as an arraignment. There are a few options when the case has landed here at the Municipal Court of Atlanta. Such options include:

  • The accused may plead guilty to DUI, which, for a first DUI conviction, usually will result in 12 months of probation, which requires completion of a Risk Reduction course and at least 40 hours of community service;
  • The accused may plead not guilty to DUI and seek a bench trial with the municipal court judge;
  • The accused may plead not guilty to DUI and seek a jury trial. This will result in the case being bound over to the Fulton County State Court, OR
  • At arraignment, the accused has the option to speak to the Atlanta solicitor in a pretrial conference to discuss other possible options, such as a reduction from the original DUI charge.

Due to the complexity of a driving under the influence criminal case, as well as the related license suspension proceeding, it is essential to hire an experienced criminal defense attorney who is skilled at defending such allegations. At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about all possible options for our clients and have vast experience defending such charges. Therefore, if you have been arrested for driving under the influence, please call our office today at 404-581-0999 for a free consultation.

After my DUI arrest, the officer took my license. How can I get to work?

If you have been arrested for a DUI in Georgia and an officer took your license, you may be wondering how you can get to work, school, or even your court date without the risk of getting into trouble. If this is you, then take a look at the citation you were given when you were arrested and take a deep breath. At the bottom of the citation, you should see something that says “temporary driving permit.” Georgia law requires an officer who is arresting you for DUI to seize your license. The citation you receive acts as a temporary driving permit for a period of 45 days from the date you were arrested or while your ALS hearing is pending. For information on filing an ALS petition, please check out this blog post: https://www.peachstatelawyer.com/georgia-administrative-license-suspension-als-hearings-during-the-pandemic/

If your license was valid at the time of arrest, the officer MUST give you this permit. If you did not receive the permit and your license was valid, let us know so that we can contact DDS on your behalf.

This permit, unlike a restricted license or a limited permit, is functionally the same as your regular license. You can travel for work or leisure without restriction on this permit. Additionally, you can find your drivers license number on your citation and visit DDS.georgia.gov and select “check license status” to actually view whether or not your license is valid. So long as the website says your license is valid and you have the 1205 form, you should not have to worry about getting pulled over and not having your license on you. However, be sure to bring the 1205 form with you when you drive in case you are stopped.

If your license has been taken because of a DUI arrest, DO NOT WAIT. Call us today. You have 30 days from the date of the arrest to try to save your license, and on the 46th day after the arrest, the 1205 permit expires. We can help.

Call us at (404)-581-0999!

Georgia DUI Law – What a Georgia DUI Costs

In 2018, there were 21,784 DUI convictions in Georgia. A DUI arrest and conviction has serious consequences. Among those consequences, you can expect to pay a significant amount of money in defending the case. This article serves to provide a general idea of what it costs to be arrested and convicted of DUI.

  1. Bail/Bond: $150 – $2,500. Cost of bail in a DUI arrest depends on a variety of factors including but not limited to prior criminal history, case facts, and ties to the community.
  2. Towing: $50 – $200. The cost of towing and impounding a car can increase daily.
  3. Insurance Increase: $4,500 or more. Depending on your insurance carrier and driving history, your rates could double, triple or even quadruple over a period of three to five years.
  4. Legal Fees: $2,000- $25,000.
  5. Fines: $300 – $5000. These base fines vary depending on the nature of your offense and any prior DUI’s. These base fines do not include statutory court costs which can increase the base fine by 50% or more. 
  6. Alcohol Evaluation: $95 – $300. The law requires completion of an alcohol and drug evaluation and treatment if recommended by the evaluator.
  7. Classes: $500 – $4,000. As part of a DUI conviction you will be required to complete a Risk Reduction class (also referred to as “DUI School”). This class costs $350. You are also required to complete a Victim Impact Panel which costs roughly $100.
  8. License reinstatement fees: $210 – $410. License reinstatement generally costs $210. However, depending on your history, you could be required to install an ignition interlock device on your vehicle in order to reinstate your license. You would have to pay for the installation of the device plus daily maintenance costs.

Contact Us

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.

Driver’s License & New DUI Law

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

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)

CDL & Georgia DUI Law

Truck drivers possessing a Commercial Driver’s License (CDL) are treated differently than other motorists facing a DUI charge in Georgia. This blog article aims to discuss those differences.

CDL Holders Are Held to a Higher Standard

For the majority of drivers in Georgia,[1] a person may be convicted of DUI if their blood alcohol concentration (BAC) is at 0.08% or more while driving. If a CDL driver, however, is stopped for DUI while operating a commercial vehicle, the legal BAC limit is 0.04%.

Consequences of a Refusal of Chemical Test or DUI Conviction

While you may refuse the State administered test of blood, breath, or urine, CDL drivers face severe consequences for refusing and for being convicted. The driver of a commercial vehicle who is convicted of DUI while operating a commercial vehicle, or who refuses to submit to a chemical test, is disqualified from driving a commercial vehicle for a period of not less than one year. This disqualification is in addition to any license suspension imposed for a DUI conviction.   Because of these harsher punishments, it is critically important you hire a skilled attorney to defend 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] Except for drivers less than 21 years of age and CDL drivers.

Georgia Underage DUI

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

Georgia Supreme Court Update – Elliott v. State

Today, the Supreme Court of Georgia, released an opinion in the case of Elliott v. State that will impact every DUI case in the State of Georgia where the Defendant refused to submit to a chemical test of their breath after being read the Georgia Implied Consent Notice. The holding of the opinion states that if a Defendant elects to assert their right against self-incrimination under Paragraph XVI of the Georgia Constitution by refusing to consent to a breath test after being arrested for DUI, that assertion of the defendant’s right to refuse cannot be introduced against them during their criminal case.

Facts of the Case

The facts at issue in this case are that Ms. Elliott was arrested for DUI in 2015. After arrest she was read the Georgia Implied Consent Notice and the officer requested she submit to a breath test. Ms. Elliott refused to submit to a breath test. Her attorney during a motion to suppress argued that the refusal to submit to the breath test under the Georgia Implied Consent Notice should be suppressed because Ms. Elliott was asserting her Paragraph XVI right under the Georgia Constitution. The trial court ruled against Ms. Elliott, allowing her refusal to be tendered as evidence at trial. The Supreme Court heard this case on direct appeal by her attorney.

The opinion, written by Justice Nels Peterson dives deep into the history of Paragraph XVI of the Georgia Constitution, from its English Common Law history, to early United States Constitutional interpretation, early Georgia case law prior to the adoption of the 1877 Georgia Constitution, and finally to our current 1983 Georgia Constitution. Paragraph XVI reads, “No person shall be compelled to give testimony ending in any manner to be self-incriminating.” (GA. Const. Art. I. Sec. 1. Par. XVI. 1983) The question at issue in this case is, does Paragraph XVI protect compelled acts, specifically breath testing under the right against self-incrimination. The Court, in a unanimous decision agrees that the refusal to submit to breath testing under the Georgia Implied Consent Notice cannot be introduced against a Defendant at trial. Prior to this holding the refusal to submit to the breath test could be used as a presumption that alcohol was found in your system.

Call us today!

The holding today could have further ramifications for both the constitutionality of the Georgia Implied Consent Notice and the introduction of breath test results at trial without being warned of your right against self-incrimination. There are other cases pending in the Supreme Court that should address those issues this year. If you have any questions regarding how this ruling may impact your DUI case, call us today at 404-581-0999.

Serious Injury by Vehicle

              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

Georgia DUI- What to Do

Remain calm. Getting pulled over by the police is a stressful experience. By keeping cool and following these tips you will greatly decrease the likelihood of a DUI arrest and/or conviction.

Pull Over!

At this point the police officer will be documenting everything you do. You should slow down, signal, and pull over to the nearest and safest place possible. Even if you believe the officer is going to stop someone else, state law requires drivers to yield to emergency vehicles with activated lights.

Put your car in park, engage the parking brake, and turn off the engine. Roll down both driver and passenger front windows as the officer may approach from either side. You don’t have to roll the windows all the way down, just enough as to where the officer can clearly see and hear you. However, if the officer asks you to roll them all the way down, do so.

Place both hands on the steering wheel so the officer can clearly see them. Do not move your hands out of sight or in a fast motion. Doing so could unnecessarily escalate the situation. Also, address the officer as: officer, sir, or ma’am. Respect goes a long way with law enforcement, especially if they suspect you of DUI.

Have Your Documents Ready

Be sure to always keep your updated proof of insurance, driver’s license, and vehicle registration in a place that is easily accessible. If you are fumbling around or have difficulty in producing these items, the officer will perceive this as evidence of impairment and include it in their report. By keeping these documents together and accessible, you can save yourself a lot of trouble.

What to Say

Say as little as possible. Remember, everything you say and do is being documented in the officer’s mind and may also be recorded on a body or dash camera or microphone. Your answers to questions, and any inconsistencies in those answers, will be used in court against you if you are arrested for DUI. In addition, the less you say the less likely an officer can reasonably testify to you having “slurred speech” or “odor of alcohol” coming from your breath. These phrases appear frequently in Georgia DUI cases.  

The officer will likely begin the encounter by asking something like, “Do you know why I pulled you over?” This question is designed to get you in trouble. The best way to answer this question is by simply saying, “no.” By saying, “yes” you invite having to explain yourself. If you admit to breaking a traffic law, you not only establish probable cause to arrest for the traffic violation, but you also bolster the officer’s decision to stop your vehicle.

Next, the officer will likely ask you questions like:

  • Have you been drinking tonight?
  • How much have you drank tonight?
  • What did you drink tonight?
  • Where are you coming from?
  • Where are you going?

DO NOT ANSWER THESE QUESTIONS. Instead, politely say something to the effect of, “I do not wish to answer these questions.” If the officer tries to force the issue, politely ask if you need to get a lawyer.

UNDER NO CIRCUMSTANCES should you ever, ever, admit to drinking or describe how many drinks you’ve had. By doing so you are practically begging for the officer to arrest you, or at least thoroughly investigate you for DUI.

Decline to Perform Field Sobriety Tests

If an officer asks you to step out of the vehicle, do it. But DO NOT agree to perform any field sobriety tests (eye tests, alphabet tests, numerical counting tests, walking tests, balancing tests, etc.) DO NOT agree to a roadside breath test (portable breath test). Although the BAC number of a portable breath test is inadmissible (as opposed to the much larger Intoxilyzer breath machine at the police station or jail) , a positive result is a green light for the officer to arrest for DUI. A simple, “no thank you” or “I respectfully refuse” should be sufficient.

These tests are voluntary and are designed elicit failure. The officer who is deciding whether to arrest you will be the sole judge of your performance. Even if stone sober, you should decline to perform field sobriety tests.

If You Are Arrested…

Do not argue with the officer, you will not win. Do not ask for sympathy or try to explain why you cannot be arrested (work, children, etc.); you will only hurt your case. Remain silent. Again, everything you say can and will be used against you. ASK TO SPEAK WITH AN ATTORNEY even if the officer does not advise you of your right to an attorney.

When You Get to the Police Station

ASK FOR AN ATTORNEY. Renew your earlier request to speak with an attorney. This will prevent the officer from asking you additional questions until you have spoken with an attorney. Call us at 404.581.0999 and we will be glad to assist you. If you have the opportunity to meet with an attorney, be sure to ask the officer for privacy.

DO NOT ANSWER QUESTIONS. If arrested, the officer is supposed to advise you of your 5th Amendment Rights before questioning you. DO NOT WAIVE YOUR RIGHTS by voluntarily speaking with police. REMAIN SILENT. If you do not understand your rights, tell the officer you do not understand your rights. The officer cannot offer legal advice but does have to clarify confusion about the consequences of taking or refusing a test.

Exercise Caution in Agreeing to a Chemical Test  

Be extremely careful in deciding whether to submit to a chemical test of your breath, blood, or urine. Chemical tests are a double-edged sword. Refusing a chemical test benefits you by depriving the officer of potentially incriminating evidence produced by the test. But, if you refuse you suffer a “hard suspension” of your driving privileges for one year. If you have consumed a significant amount of alcohol, you should refuse the State chemical testing.

If you do submit to a chemical test ASK FOR AN ADDITIONAL INDEPENDENT TEST. You have the right to independent testing and the officer must reasonably assist you in obtaining the test.

Talk to a DUI Lawyer

If you or someone you know has been arrested for DUI, do not hesitate to call us. The offense of DUI is a vast and complex collection of laws that continue to puzzle lawyers and judges alike. Our office will assist in defending your case and getting the best resolution possible.

 

by Casey Cleaver