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Vehicular Homicide Charges in Georgia

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Vehicular Homicide in Georgia is a tragic crime that carries harsh consequences.  When someone dies as the result of a traffic infraction, the result is a vehicular homicide criminal case.

Vehicular homicide can either be a misdemeanor or a felony. Vehicular Homicide in the 1st degree is when someone who, without malice aforethought, causes the death of an individual while at the same time committing other certain offenses. These offenses, below, coupled with the death of an individual, will upgrade the charge to a felony:

  • Passing a school bus
  • DUI
  • Reckless Driving
  • Fleeing or attempting to elude
  • Hit and Run
  • While license is suspended due to Habitual Violator Status

Misdemeanor Vehicular Homicide, known as Vehicle Homicide in the 2nd degree, is defined by causing the death of another, without an intention to do so, while violating any other traffic offense in Title 40. (See O.C.G.A. § 40-6-393). These traffic violations may include, for example, failure to maintain lane, running a red light, improper turn, or speeding. Any traffic offense (other than the ones in the bullet points above), which causes the death of another, will result in a Vehicular Homicide charge in the 2nd degree.

In both felony and misdemeanor Vehicular Homicide cases, Georgia law requires that the State prove that the driver’s conduct was a substantial factor in the “proximate cause” of the death.  This means that under Georgia law, sometimes the victim’s own negligence will not be relevant. This is where the defense can lie. Vehicular homicide cases involve intensive investigation phases for the Defense.  The defense may need accident reconstruction experts to quickly determine how and why an accident occurred.

What is the sentence if convicted of Vehicular Homicide?

On a felony Vehicular Homicide, the sentence carried 3 to 15 years in prison on this one charge. If, for example, there were also convictions for misdemeanor offenses, like speeding, from the same accident, the Judge could sentence those consecutively making the prison time much longer.

If convicted of a Vehicular Homicide in the 2nd degree, it is a misdemeanor offense, and the maximum penalty is 12 months in jail and/or a base fine of $1,000.

The Georgia Department of Driver Services will also act to suspend your license on a conviction for Vehicular Homicide. If convicted of a misdemeanor homicide by vehicle, Georgia will suspend your license for a minimum period of 120 days. On a misdemeanor, a limited permit may be available. On a felony homicide by vehicle conviction, Georgia will suspend your license for a period of three years.

If you or a loved one has been charged with Vehicular Homicide anywhere in the State of Georgia, call us today for a FREE CONSULTATION at 404-581-0999. The team of attorneys at W. Scott Smith PC are ready to aggressively defend you in your utmost time of need.

 

Georgia DUI Law: DUI and Your Record

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An arrest and/or conviction for DUI in Georgia will impact your record. There are two types of records, a criminal record, maintained by the Georgia Crime and Information Center (GCIC) and your driving record, also called a Motor Vehicle Report (MVR – maintained by the Department of Driver’s Services).

This article serves to explain how a DUI affects your record, both criminal and driving, and whether you can get a DUI taken off of your records.

Georgia Criminal Record

If you are arrested, booked, and fingerprinted, this information will be forwarded to GCIC and placed on your record. If you are applying for a new job, housing, or if your employer runs a background check on you, they will be able to see the arrest on your GCIC. Each arrest is reported as a “cycle,” which shows the date of arrest, the arresting agency, the offense charged, and a “disposition.” The disposition describes the outcome of the case. If the case is still pending, the disposition will show an arrest but no outcome. If you are convicted or the case was dismissed or reduced, the disposition will state as such.

If you are convicted of DUI, whether at trial or through a plea, it will remain on your record permanently. You will not be able to get the record restricted, you cannot get it expunged, you cannot use first offender. This remains true even if your DUI charge was reduced to Reckless Driving.

Georgia Driving Record

Your Motor Vehicle Report (MVR) is very similar to your GCIC. If you have been arrested for DUI and the officer takes your driver’s license in order to facilitate an administrative suspension of your license, your MVR will show a pending administrative license suspension. If this administrative potion of the case is dismissed, your MVR will be cleared up. However, if you are ultimately convicted of DUI through a plea or trial, your MVR will reflect this conviction and you can expect your insurance prices to rise because insurance companies have access to these MVR’s. This conviction will remain on your MVR permanently.

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.

Georgia DUI Law: Challenging the Stop, Driving While Distracted or While Using Mobile Device

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Georgia DUI investigations usually begin with a routine traffic stop. At a minimum, in order to stop you and your vehicle, the stopping officer needs to have “reasonable and articulable suspicion” to believe a crime has, or is about to be committed. An officer normally satisfies this requirement by observing a traffic or equipment violation. However, if it is determined the officer did NOT have reasonable and articulable suspicion to stop your vehicle; this could result in the suppression of evidence and the ultimate dismissal of a DUI charge.

Therefore, it is crucial to examine the most common types of traffic violations that result in a DUI investigation. This article serves to inform you of what type of things police officers are looking for when stopping for driving while distracted or while using mobile device.

The Offense

As of July 1, 2018, O.C.G.A. § 40-6-241 requires drivers to exercise due care while operating a motor vehicle on the highways of this state and prohibits “any actions which shall distract such driver from the safe operation of such vehicle.”

In addition, drivers may not:

(1) physically hold or support a wireless telecommunications device or stand-alone electronic device, except for the use of an earpiece, headphone device, or device worn on a wrist to conduct a voice based communication;

(2) write, send, or read any text-based communication, including text messages, instant messages, e-mails, or Internet data, other than voice commands that are converted to text by the device or used for GPS/navigation feature control;

(3) watch a video or movie on a wireless telecommunications device or stand-alone electronic device, other than watching data related to the navigation of such vehicle; or

(4) record or broadcast a video on a wireless telecommunications device or stand-alone electronic device, other than devices used for the sole purpose of continuously recording or broadcasting video within or outside of the motor vehicle.

Commercial vehicle drivers are restricted from using more than a single button on a wireless telecommunications device to initiate or terminate a voice communication or reaching for a wireless telecommunications device or stand-alone electronic device in such a manner that requires the driver to no longer be in a seated driving position or properly restrained by a safety belt.

Exceptions

These prohibitions do not apply if the driver is:

(1) reporting a traffic accident, medical emergency, fire, an actual or potential criminal or delinquent act, or road condition which causes an immediate and serious traffic or safety hazard;

(2) an employee or contractor of a utility services provider acting within the scope of his or her employment while responding to a utility emergency;

(3) a law enforcement officer, firefighter, emergency medical services personnel, ambulance driver, or other similarly employed public safety first responder during the performance of his or her official duties; or

(4) in a lawfully parked motor vehicle.

O.C.G.A. § 40-6-241(g).

Punishment

O.C.G.A. § 40-6-241(f) states that violations are punished as misdemeanors, as follows:

(A) For a first conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous 24 month period of time, as measured from the dates any previous convictions were obtained or pleas of nolo contendere were accepted to the date the current conviction is obtained or plea of nolo contendere is accepted, a fine of not more than $50.00, but the provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof;

(B) For a second conviction within a 24 month period of time, as measured from the dates any previous convictions were obtained or pleas of nolo contendere were accepted to the date the current conviction is obtained or plea of nolo contendere is accepted, a fine of not more than $100.00, but the provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof; or

(C) For a third or subsequent conviction within a 24 month period of time, as measured from the dates any previous convictions were obtained or pleas of nolo contendere were accepted to the date the current conviction is obtained or plea of nolo contendere is accepted, a fine of not more than $150.00, but the provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof.

A person convicted of simply holding a mobile device while driving may avoid conviction if they bring to court a device or proof of purchase of such device that would allow that person to operate a mobile device hands-free in the future. However, a person may take advantage of this saving provision only once. O.C.G.A. § 40-6-241(f)(2).

Challenging the Stop

Police officers are looking for distracted drivers, especially those drivers holding their cell phones while driving. If an officer observes this, they would have a lawful reason to stop your vehicle, and possibly launch a DUI investigation. As a result, it is important to challenge the officer’s observations to determine whether the stopping officer has reasonable and articulable suspicion necessary to stop your car. The most successful way to accomplish this is to challenge the officer’s perception. Key issues include, but are not limited to:

  • Distance between the officer and your vehicle
  • Angles of officer’s observation
  • Traffic conditions
  • Lighting
  • Window tint, if any
  • Whether you were lawfully parked

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.

Georgia DUI law and Breathalyzers

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If you are being investigated for DUI in Georgia, you will likely be asked to submit to two different breathalyzers. This article serves to explain the differences between these machines, and your rights and obligations concerning these machines.

Preliminary Breath Test (PBT)

PBT device. These are small, handheld devices carried by police officers in the field.

The PBT is likely the first breathalyzer you will encounter. This test is offered road-side during the DUI investigation but prior to an arrest. This device is designed to estimate a driver’s blood alcohol content from air stored in the deep recesses of your lungs.

Because the PBT is not reliable, the numerical results cannot be used against you at trial. However, an officer is permitted to testify as to whether the PBT results tested positive or negative for alcohol. As a result, officers will use a positive PBT result to demonstrate whatever impairment they are claiming to observe is the result of alcohol consumption. In addition, the police will use it to justify an arrest decision.

DO NOT BLOW INTO A PBT DEVICE. THE PBT IS OPTIONAL. Politely decline to take the PBT if you have consumed any amount of alcohol, even if it was hours prior. “Officer, I respectfully decline to take the PBT along with any other road-side evaluations.”

Intoxilyzer 9000 under the Implied Consent Warning

Intoxilyzer 9000. This device is kept at police stations. It is very distinctive, and much larger than handheld devices.

This second type of breathalyzer is administered after arrest and is usually performed at the police station or jail. This is the “required” test under the Implied Consent Law.  

The manufacturer of Georgia’s breath machine is CMI, located in Owensboro, Kentucky. CMI sells their machines to law enforcement only. The company will not sell a machine to a defense lawyer. This prevents any experimentation or meaningful research regarding the reliability or accuracy of the machine.

As opposed to the PBT, the results of the Intoxilyzer 9000 can be used against you at trial. If you blow a 0.08% or higher, you will likely be facing not only a DUI – Less Safe charge, but also a DUI – Per Se charge. A skilled defense attorney will not only attack the machine (maintenance history), but also the operator of the machine to ensure no issues are overlooked.

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.

Georgia DUI Law: DUI Third Offense

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If you are charged with DUI in Georgia, you need to hire a skilled and experienced attorney to handle your case. DUI’s can be complex in nature and if convicted, will expose you to serious criminal liability. This article will discuss the criminal penalties to expect if you are convicted of DUI in Georgia for the third time within a ten year period, measured by the dates of arrest for which a conviction was obtained.

Jail and Probation

Generally, a DUI is considered a misdemeanor offense. As such, the maximum penalty is up to one year in jail and a $1,000 fine. Can a judge sentence to the maximum? Yes. Will the judge sentence to the maximum? Unlikely. But, a third DUI in 5 (or 10) years is considered a “high and aggravated” misdemeanor. This means a higher fine and more jail time. For a third DUI in the last ten years, there is a minimum mandatory 15 days in jail. The judge may give you credit for time already spent in custody when you were first arrested. The remainder of the 12 months may be “probated,” meaning you will be placed on probation. It is important to note that with a “high and aggravated” misdemeanor, you will not be entitled to as much “good time credit” as you could get under a regular misdemeanor. Here, you would be limited to four days credit for every thirty days served. Therefore, if you were sentenced to the minimum 15 days in jail, you would have to serve all 15 days.

Probation is like walking around with a rain cloud over your head. While on probation, you are required to “report” to probation, either in-person, or by mail or phone (usually permitted if you live out of county or out of state). You are required to pay a monthly probation supervision fee separate from the fine assessed as part of the conviction (usually $30-$40 per month). You are also prohibited from drinking alcohol or doing drugs while on probation. If you are arrested for a new crime while on probation, this could cause serious issues as well. Your current probation could be “revoked” and you could go back to jail for the time remaining on probation.

Fines and Fees

The minimum fine for a third DUI is $1,000, with a maximum possible fine of $5,000. Interestingly, Georgia law allows for a judge to reduce the fine up to one-half if you are currently enrolled in a substance abuse program at the time of sentencing. This base fine is accompanied by court costs which add a hefty tax to the overall fine. The sentencing judge may also reduce the fine if doing so would impose “an economic hardship” on the defendant. There are additional costs and fees associated with the required classes and counseling, discussed below.

Classes and Counseling

Typical DUI punishment includes mandatory participation in a Risk Reduction class, also referred to as “DUI School.” This 20 hour class focuses on the dangers of DUI driving and costs roughly $350. The Risk Reduction class must be completed within 120 days of the conviction. You will also be required to complete a Victim Impact Panel. This 2 hour class discusses the “impact” DUI cases have on victims and their families.

Furthermore, those convicted of DUI must undergo a clinical evaluation for alcohol and drug dependency. You must meet with a state certified counselor for an assessment and complete any treatment if treatment is recommended.

Community Service

Those convicted of a third-in-ten DUI will also have to complete 30 days (or 240 hours) of community service. Generally, you can choose which organization to work for, so long as it is a federally recognized non-profit organization and is not a religious institution. Some jurisdictions, however, force you to choose from certain designated organizations. At the end of your community service, you will want a document on the organization’s letterhead stating you successfully completed community service.

Publication of Conviction

A third DUI within a ten year period also causes your conviction to be published in the local newspaper in the county you live in, or in the county where the conviction took place (for non-residents).  The publication is one column wide by two inches long and contains the person’s booking photograph, the name of the convicted person, the city, county, and zip code of the convicted person’s residential address, and the date, time, place of arrest, and disposition of the case. The publication is made once in either the second week following the conviction or shortly after the conviction. Furthermore, the person is assessed a $25 publication fee.

License Suspension

O.C.G.A. § 40-5-63 governs the driver’s license suspension for any person convicted of DUI. For a third conviction within a ten year period, you will be considered a “habitual violator.” This will revoke your driving privileges for a five year period, rather than simply suspending them.

After two years of no driving whatsoever, you may finally be eligible for a probationary license during the final three years of your revocation. But, you would be ineligible for this probationary license if you have been convicted of certain offenses (alcohol or drug charges, or certain moving violations) during the two years prior to applying for this license. In addition, in applying for this license you have to make a showing that not having the license would cause you extreme hardship. If you are able to get this license, DDS could place further restrictions on your ability to drive, such as time restrictions or limiting the purposes for driving (work, school, medical, religious, etc.). Violating these restrictions imposed by DDS could result in a felony.   

A third DUI conviction within a ten year period will greatly impact your ability to drive. Therefore, it’s important to get out in front of a third DUI arrest by consulting with an attorney to discuss your options in fighting 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.

Georgia DUI Law: Do You have the Right to an Attorney When Being Investigated for DUI?

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Does a Person Have the Right to Contact Counsel During a DUI Investigation?

Unfortunately, the answer is “no.” In Rackoff v. State, 281 Ga. 306, (2006), the specific issue was whether a person arrested for DUI entitled to the advice of counsel before deciding if he should take a breath test.  The Supreme Court of Georgia stated:

[T]he right to counsel does not attach automatically upon arrest. In fact, the Sixth Amendment right to counsel does not come into play until the criminal process has progressed to a “critical stage” after the initiation of adversary judicial proceedings . . . and Georgia’s constitutional right to counsel does not attach unless the proceeding constitutes a “critical stage.” A critical stage in a criminal proceeding is that point at which rights may be lost, defenses waived, privileges claimed or waived, or the outcome of a case may be substantially affected.

Id. at 308-309. The Court reasoned individuals do not have the right to counsel at this stage because ‘no formal proceedings had been initiated,’ and, ‘there is little value a lawyer could add that would substantially affect the fairness of the trial.’

But how can this decision stand in light of our discussion regarding the implications of the State requested chemical test under the Implied Consent Warning? Why is this decision not a critical stage in the case?

Know Your Rights

Because the Court has ruled you do not have the right to legal counsel during a DUI investigation, it is incredibly important you know your rights if being questioned by the police. First, do not make any statements to the police. Second, politely decline to perform any Field Sobriety Tests and the Portable Breath Test. These tests are voluntary.

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.

Georgia DUI Law: DUI Second Offense in Five Years

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If you are charged with DUI in Georgia, you need to hire a skilled and experienced attorney to handle your case. DUI’s can be complex in nature and if convicted, will expose you to serious criminal liability. This article will discuss the criminal penalties to expect if you are convicted of DUI in Georgia for the second time within a five year period, measured by the dates of arrest for which a conviction was obtained.

Jail Time and Probation

Generally, a DUI is considered a misdemeanor offense. As such, the maximum penalty is up to one year in jail and a $1,000 fine. Can a judge sentence to the maximum? Yes. Will the judge sentence to the maximum? Unlikely. For a second DUI in 5 (or 10) years, there is a minimum mandatory 72 hours in jail. The judge may give you credit for time already spent in custody when you were first arrested. The remainder of the 12 months will be “probated,” meaning you will be placed on probation.

Probation is like walking around with a rain cloud over your head. While on probation, you are required to “report” to probation, either in-person, or by mail or phone (usually permitted if you live out of county or out of state). You are required to pay a monthly probation supervision fee separate from the fine assessed as part of the conviction (usually $30-$40 per month). You are also prohibited from drinking alcohol or doing drugs while on probation. If you are arrested for a new crime while on probation, this could cause serious issues as well. Your current probation could be “revoked” and you could go back to jail for the time remaining on probation.

Fines and Fees

The minimum fine for a second DUI is $600, the maximum is $1,000. This base fine is accompanied by court costs which add a hefty tax to the overall fine. Interestingly, Georgia law allows for a judge to reduce the base fine up to one-half if you are currently enrolled in a substance abuse program at the time of sentencing. The sentencing judge may also reduce the fine if not doing so would impose “an economic hardship” on the defendant. There are additional costs and fees associated with the required classes and counseling, discussed below.

Classes and Counseling

Typical DUI punishment includes mandatory participation in a Risk Reduction class, also referred to as “DUI School.” This 20 hour class focuses on the dangers of DUI driving and costs roughly $350. The Risk Reduction class must be completed within 120 days of the conviction. You will also be required to complete a Victim Impact Panel. This 2 hour class discusses the “impact” DUI cases have on victims and their families.

Furthermore, those convicted of DUI must undergo a clinical evaluation for alcohol and drug dependency. You must meet with a state certified counselor for an assessment and complete any treatment if treatment is recommended.

Community Service

Those convicted of what’s called a “second-in-five” DUI will also have to complete 240 hours of community service. Generally, you can choose which organization to work for, so long as it is a federally recognized non-profit organization and is not a religious institution. Some jurisdictions, however, force you to choose from certain designated organizations. At the end of your community service, you will want a document on the organization’s letterhead stating you successfully completed community service.

Publication of Conviction

A second DUI within a five year period also causes your conviction to be published in the local newspaper in the county you live in, or in the county where the conviction took place (for non-residents).  The publication is one column wide by two inches long and contains the person’s booking photograph, the name of the convicted person, the city, county, and zip code of the convicted person’s residential address, and the date, time, place of arrest, and disposition of the case. The publication is made once in either the second week following the conviction or shortly after the conviction. Furthermore, the person is assessed a $25 publication.

License Suspension

O.C.G.A. § 40-5-63 governs the driver’s license suspension for any person convicted of DUI. For a second-in-five conviction, your full driving privileges will be suspended for eighteen months. After first serving a 120 day hard suspension of your license which means no driving at all in those first 120 days, you will be eligible for a twelve month ignition interlock device permit if you have completed the following requirements.

You must submit an original certificate of completion of a DDS (Department of Driver Services) approved alcohol or drug use risk reduction program. Complete a clinical evaluation with a counselor licensed by the Department of Behavioral Health and Developmental Disabilities along with any treatment required by the counselor. Show proof of installation of an Ignition Interlock Device in your vehicle from a DDS approved vendor. Pay a $25 permit fee. If you cannot afford the cost to obtain an ignition interlock device in your vehicle, the court can exempt you from the requirements of the device, but you will still have to serve that additional twelve month suspension of your license. After serving the 120 day hard suspension and the additional twelve months with an ignition interlock device, you must still serve an additional two months without the interlock device for a total of eighteen months before you can reinstate your full license. For reinstatement you must pay the $210 reinstatement fee and show DDS proof that an ignition interlock device was maintained in your vehicle for twelve months or show an order from the court exempting you from the interlock device due to hardship.

A second-in-five DUI conviction will greatly impact your ability to drive. Therefore, it’s important to get out in front of a second DUI arrest by consulting with an attorney to discuss your options in fighting 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.

Georgia Supreme Court Update – Elliott v. State

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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

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

What’s the Difference?

The difference between a felony and a misdemeanor is that misdemeanor crimes carry a maximum punishment of 12 months in jail, while felony charges could result in much lengthier punishment as society views felonies, generally, more harshly. Specifically, for the felony charge of Serious Injury by Vehicle, the minimum punishment is 1 year in prison, while the maximum is 15 years. Certain factos like the BAC or whether there was any prior convictions can elevate punishment significantly. Compare that to a Driving Under the Influence charge where the minimum punishment is just 24 hours.

What about my License?

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

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

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

Take the next step

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

by Mary Agramonte

Field Sobriety: Horizontal Gaze Nystagmus

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What is Horizontal Gaze Nystagmus?


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

Measurements

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

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

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

Pre-Test Checks

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

Test Procedures

To properly administer the HGN test, the officer must:

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

Is HGN Accurate?


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

Summary

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

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

by Casey Cleaver

[1] Session 8, page 29 of 95.

[2] Session 8, page 29 of 95.

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