Posts

Georgia Administrative License Suspension (ALS) Hearings during the Pandemic

Following a DUI arrest, the State of Georgia has authority to suspend the driver’s license of the accused in a civil proceeding, which is separate from the criminal case, if one of the following occurs:

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

At this time, the accused has a few options. He/she can either appeal the license suspension or install an interlock device in their vehicle for the duration of the suspension. However, in this blog we will solely discuss the former.

Appeal of License Suspension

In the normal world in which we are not dealing with a global pandemic, following a DUI arrest, if one of the two circumstances above are true, the accused has 30 days from the date of the arrest to file an appeal of his/her license suspension. Due to the concerns and difficulties surrounding Covid-19, the State of Georgia has extended the deadline, which allows the accused to file an appeal within 120 days of arrest. This gives individuals charged with a DUI much more time to consider all their options following their arrest. However, if the appeal is not filed within the new extended deadline then the driver’s license of the accused will be suspended. In Georgia, there are two different types of license suspensions:

  1. 12-month suspension: This is also known as a “hard suspension.” This type of suspension happens if subsection (1) above occurs. In other words, the accused refused to comply with either a breath, blood, or urine test following the reading of the Implied Consent notice. For this suspension, there are no forms of temporary or restricted licenses. If the accused does not file an appeal or fails to install an interlock device within the stated time frame, his/her license will be suspended for an entire year.
  2. 30-day suspension: This type of suspension occurs if the circumstances surrounding the arrest mirror subsection (2) above. This means that the accused consented to a breath, blood, or urine sample and the results of that sample showed that his/her blood alcohol content was above the legal limit. During this 30-day suspension, if the accused attends a Georgia DUI School and pays a reinstatement fee of $210, the accused can obtain a restricted license, and furthermore, have their driver’s license reinstated after 30 days.

At the Law Offices of W. Scott Smith, we understand that there are grave consequences following a DUI arrest, including the possibility of a license suspension. Therefore, our attorneys are knowledgeable about all possible options for our clients and have vast experience dealing with such appeals. Therefore, if you have been arrested for a DUI and are potentially facing a license suspension, please call our office today at 404-581-0999 for a free consultation.

Georgia DUI by Driver with Out of State License

A Georgia DUI arrest is a serious issue, even, and perhaps especially, for out-of-state drivers. Not only can a mere DUI arrest affect your ability to drive in Georgia, a conviction of DUI can also be reported to your home state and cause a driver’s license suspension. This article will discuss the implications of a DUI arrest and conviction for drivers licensed outside the state of Georgia.

Administrative License Suspension Upon an Arrest

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

Despite the arrest, the driver’s license is still valid until DDS receives the 1205 Form and 45 days have passed since the 1205 Form was served. The suspension is “pending” once DDS receives the 1205 form until the outcome of the administrative hearing.

There are two approaches to dealing with an administrative license suspension: (1) request a hearing to appeal the suspension; or (2) elect to install an ignition interlock device on your vehicle. DDS must receive the request for a hearing or application for an ignition interlock permit within 30 actual days (not business days) of the service of the 1205 Form.

Failure to timely file or losing an ALS hearing will cause your driving privileges in Georgia to be suspended in GA (for how long depends on whether you refused the request for a chemical test under the implied consent warning). Importantly, your home state may adopt this suspension for your out-of-state license.

Criminal Conviction Suspension

O.C.G.A. § 40-5-63 provides for the terms and conditions governing the driver’s license suspension for any person convicted of DUI. Upon the first conviction, the suspension period is for 12 months. For drivers licensed in Georgia, you can get a limited driving permit by receiving an “Affidavit of First Conviction” from the sentencing judge which will allow you to drive for certain limited purposes.

However, Georgia law only allows for the DUI suspension of a Georgia driver’s license.  Therefore, technically, an out-of-state driver can only have their privilege to drive in Georgia suspended by a sentencing court.

So, to the extent a Georgia driver is able to obtain a limited driving permit, an out-of-state driver does not qualify for such permit. Furthermore, Georgia will report the suspension to authorities in your home state which may have greater license suspension penalties for DUI than Georgia.

Contact Us

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

Georgia DUI Lawyer – Peach County

If you have been charged with driving under the influence (“DUI”) in Peach County, you have come to the right place.  Our firm has a strong record at successfully defending all kinds of DUIs ranging from alcohol to marijuana to prescription drugs cases.  Peach County is known to aggressively patrol their roads and prosecute these DUI arrests, but their aggressiveness also leads to many wrongful arrests.

 

As with most DUIs, the initial stop of the vehicle is usually based on an alleged violation of some traffic law like speeding or failure to maintain lane.  A technical violation such as window tint or expired tag can also serve as the basis of the stop, but there’s nothing inherently unsafe about a technical violation. Therefore, a skilled defense attorney will argue that a technical violation is not evidence of impaired driving.  If someone is so impaired that they are unable to drive safely, then why is it that the officer could not find one single traffic infraction to support their assumption that you are impaired!?  A very reasonable theory is that you were not impaired, the officer made some false assumptions, and you should be found not guilty of DUI.  Piece of cake, right?  Well, there is actually a lot of training that goes into DUI detection, and your attorney needs to understand that training before he can skillfully use that training against the officer.  The law is constantly evolving, and the training that goes into DUI enforcement is updated every year or two.  So you need a lawyer who has performed the tests himself/herself (in a classroom setting), and you need the best possible DUI attorney in Peach County.

 

So if you have been charged with a DUI in Peach County, then you need to call our office today at 404-581-0999 for your free consultation.

Can I get a DUI if I am under .08 in Georgia?

            Most of us are aware that the legal limit for a DUI for a driver over 21 years old is .08. What comes as a surprise to most, however, is that you can also be charged with DUI even if you were well below the legal limit. How is this possible? You can be arrested and charged with DUI, even if you blew below the legal limit, under Georgia’s DUI Less Safe law. In practice, it is a very common way to be charged with DUI in Georgia.

            Georgia law has criminalized DUIs into a few different categories. The two most common ways to be charged with DUI are DUI Per Se and DUI Less Safe. DUI Per Se occurs when a person is arrested after being alleged to be in control of a moving vehicle with a blood alcohol concentration of .08 grams or more. This means that after he or she was arrested, law enforcement obtained a blood alcohol reading either by a breath, blood, or urine test taken typically at the jail or a hospital.

What happens if I don’t blow or take a breathalyzer?

            In this situation, you can still be charged with DUI Less Safe. DUI Less Safe in Georgia means you were in control of a moving vehicle, after having consumed alcohol, to the extent it made you a less safe driver. Evidence in this situation may not include an actual BAC number, but the State will attempt to prove DUI with other pieces of evidence. For example, the State may bring forward evidence of an odor of alcohol, bloodshot eyes, open containers, and/or poor performance on field sobriety tests.

            In some instances, if you decline or refuse the breath or blood test at the officer’s request, the police officer will take out a search warrant to take your blood over your objection. In this situation, you can be charged with both DUI Less Safe and DUI Per Se if the BAC comes back as over .08.

What happens if I blow below the legal limit?

            In Georgia, you can still be arrested and charged with DUI Less Safe. This is because a BAC greater than .08 is not a requirement in DUI Less Safe cases. If you blow a .07, a .06, or even a .05, you can and will still be prosecuted for DUI. This seems shocking to some, but we see it happen regularly. The State, in this situation, still has to prove impairment- meaning the prosecutor must still prove you were a less safe driver because of the alcohol.

Georgia’s Law on Alcohol Content

In Georgia, you are Per Se impaired if your blood or breath test shows a result of .08 grams or more. If your BAC is more than .05 but less than .08 grams, there is no inference of impairment. This means it is up to the judge or the jury to consider whether or not you were actually a Less Safe driver or not. In Georgia, a BAC of even less than .04 can get you into court fighting for your life and freedom. In a scenario where the BAC was les than a .04, Georgia law has a presumption that you were NOT impaired. The State can rebut this inference through other evidence in a trial. A different BAC applies in cases where the driver is under 21 years old. In that situation, an under 21 DUI ‘legal limit’ is .02 grams.

We routinely see drivers with a ‘below the legal limit’ DUI have their cases prosecuted. Do not assume that the prosecuting attorney will throw the case out based on having been less than .08 grams. If you were arrested, the State will most likely bring the prosecution’s case with any other evidence they have, even if they do not have a BAC or if the BAC was below a .08 grams.

DUI cases are one of them most litigated cases in Georgia courtrooms. This is because there is so much at stake with a DUI conviction: jail time, lengthy and involved probation sentences, suspended licenses, and a criminal history that cannot be expunged. There are numerous defenses to DUI Less Safe and DUI Per Se cases, no matter what the BAC is or what county you were arrested in. If you or a loved one has been arrested for Driving under the Influence, call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.

Georgia DUI Law: Binding Your Case Over

A great deal of misdemeanor cases in Georgia, such as DUI, shoplifting, possession of marijuana, and minor traffic infractions begin in Municipal Court. This is because municipal courts exist separately from the State Court system. As an individual sovereignty, the various cities (or “municipalities”) across the state are free to adopt their own laws, called ordinances. These ordinances may or may not also be State law violations. This is the key determination in whether you are permitted to “bind your case over” to State Court. The law controlling whether a case may be bound over will be discussed below.

What does “binding a case over” mean?

Imagine yourself seated in a municipal courtroom appearing for a DUI charge. The judge will instruct you that when your name is called you are to make an “announcement” on what you want to do with your case. The judge will likely say your options are: (1) guilty; (2) nolo contendere; or (3) not guilty. If you answer (3) not guilty, the judge will normally tell you your case will be scheduled for a bench trial in municipal court where the same judge will be deciding your case (rather than a jury). What the municipal court judge often does not tell you is that one of your options in pleading “not guilty” is to request a jury trial on the case. When you request a jury trial, and the charge is eligible to be bound over, the case is then removed from the hands of the Municipal Court and is bound over to the State Court system to the county in which the Municipal Court resides.

For example, if your case begins in the Municipal Court of Atlanta, Municipal Court of Dunwoody, Municipal Court of Alpharetta, or any other Municipal Court within Fulton County, your case will be bound over to Fulton County State Court. Once the case is bound over, the case essentially hangs out in limbo for a while (could be weeks or several months depending on jurisdiction) unless or until the case becomes “accused” in State Court. When a case becomes “accused,” this simply means the State Court (through the prosecutor’s office) has picked up the case and charges have now been formally brought in State Court.

It is important to note that for misdemeanor cases in Georgia, the State has two years to accuse the case measured from the date of arrest. If the case is not accused within this two year period, the State is prevented from prosecuting the matter under the statue of limitations. Also, the State Court prosecutor has the authority to add, amend, dismiss, or reduce the charges. Therefore, the charges in State Court could be different than the ones you were facing in Municipal Court.

There is a great benefit to binding the case over to State Court. Not only are you entitled to a jury trial, but you also have a better opportunity to fight the case through motions challenges. These are largely unavailable in Municipal Court. Furthermore, State Court prosecutors seem to be more receptive to plea negotiations for more serious charges where their Municipal Court counterparts rarely budge. You also get two bites at the apple by starting the case in Municipal Court. If the Municipal Court prosecutor is unwilling to reduce or dismiss the charges, then the decision is easy, bind the case over to State Court and renew negotiations there.

Is My Case Eligible to Be Bound Over? 

Article I, Section I, Paragraph XI of the Georgia Constitution of 1983 guarantees a defendant in a criminal case the “inviolate” right to a “public and speedy trial by an impartial jury.” GA CONST Art. 1, § 1, ¶ XI. However, Georgia courts recognize that some cases are not eligible to be bound over to State or Superior Court by distinguishing crimes, “which are solely violations of local or municipal ordinances[,]” versus crimes where the offense is a violation of an ordinance as well as a misdemeanor under State law. Geng v. State, 276 Ga. 4825 (2002). Where the offense is both a violation of local ordinance and a state level offense, the State Court of the county where the alleged incident took place would have “concurrent jurisdiction” over the case. O.C.G.A. § 15-7-4. If the State Court has concurrent jurisdiction over the matter, then the case is eligible to be bound over.

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 – Necessity Defense to a DUI Charge

There are many legal challenges and defenses available to defendants in a DUI case. One of these defenses is an “affirmative defense.” An affirmative defense is one in which the defendant argues that, even if the allegations of the indictment or accusation are true, there are circumstances that support a determination that he cannot or should not be held criminally liable. In the context of a DUI, the defendant would be arguing to the judge or jury that the defendant was in fact DUI, but the defendant is justified or excused in driving under the influence. One justification defense[1] to DUI is “necessity.”   

Under federal law[2], the doctrine of necessity requires:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

In 1991, the Georgia Supreme Court reversed a conviction for DUI because a jury could have found driving under the influence was justified when Defendant was driving 8 ½ month pregnant wife to the doctor.[3] 

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.


[1] O.C.G.A. § 16-3-20

[2] Manners v. Cannella, 891 F.3d 959, 11th Cir. (2018)

[3] Tarvestad v. State, 261 Ga. 605 (1991)

Georgia DUI Law: Motion to Suppress

A motion to suppress seeks to exclude illegally obtained evidence based upon a constitutional violation.[1] The purpose of a motion to suppress is to determine, before trial, whether particular evidence will be admissible at trial. If the judge finds the evidence is not admissible, the prosecuting attorney may determine they cannot go forward on the case and dismiss it entirely. If the judge rules the evidence is admissible, the defendant may be more inclined to enter a guilty plea knowing the objected to evidence will be admitted.

A motion to suppress must:

  • Be made in writing
  • Raise a constitutional ground or basis
  • Allege sufficient facts to place the prosecution on notice of the claim of unlawfulness
  • Be filed no later than 10 days after arraignment (unless judge allows for extension in writing)

A failure to comply with these requirements could result in a waiver of your motion and ability to resolve these issues before a trial.

Once a motion to suppress has been filed, the burden of proving the lawfulness of the legal issues raised is placed on the State. A defendant is general entitled to an evidentiary hearing unless the parties agree to the facts. If so, the judge may rule on the motion without a hearing as a matter of law. The hearing must occur outside the presence of a jury.

For example, in the context of a DUI case, a defendant should file a motion to suppress the results of a chemical test (ex. breath or blood) if there was insufficient probable cause to arrest. The prosecutor would have to call the arresting officer to court and prove to a judge there was probable cause to arrest. Not only could a judge rule in your favor, but a defendant also receives the benefit of officer testimony made under oath. Therefore, if the officer later testifies at trial to something inconsistent with what that officer said at the motion to suppress, the officer’s prior inconsistent statement could be used to impeach that officer (showing they are not credible). 

Contact Us


[1] A motion to suppress does not apply to (1) attacks on the validity of charging documents (accusations or indictments); (2) chain of custody issues; or (3) to testimony. 

Georgia DUI Law: DUI Arrests on Super Bowl Weekend

Super Bowl Sunday is almost here. On February 2, 2020, the Kansas City Chiefs will be competing against the San Francisco Forty-Niners in Super Bowl LIV at the Hard Rock Stadium in Miami Gardens, Florida. Alongside holidays such as New Year’s Eve, Independence Day, and St. Patrick’s Day, Super Bowl Sunday has one of the highest rates of DUI arrests across the United States.

Super Bowl Sundays and DUI Arrests

The Automobile Club of Southern California conducted a 9-year-long study analyzing drunken driving-related crashes resulting in injuries on Super Bowl Sundays as compared to other Sundays. Their research showed that these DUI crashes involving injury were 41% more likely to occur on Super Bowl Sunday than on any other Sundays in January or February. Additionally, the study showed that New Year’s Eve was the only night of the year with a higher rate, with a 44% increase.

Data from Alcohol Monitoring Systems (AMS) – which analyzes the drinking behavior of approximately 530,000 repeat DUI offenders, found that drinking violations by repeat drunk drivers increased an average of 22% nationwide on Super Bowl Sunday, compared to the average Sunday.

Tips for Super Bowl Sunday

Have a plan. Arrange for a designated driver or a ride share service (Uber, Lyft, Via, etc.) if you intend on drinking and traveling on the roadways. Consider sleeping over at a friend’s house if you are watching the game there.

Be aware. Law enforcement will be out in numbers. Police will be actively looking for bad driving in order to facilitate a DUI investigation. As an additional precaution, you should expect potential DUI Roadblocks in certain areas.

If you are stopped and investigated for DUI, you need to know what to do.

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, Defective Equipment

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 the nature, methods of proof, penalties, and challenges to a defective equipment offense in Georgia.

The Offense

O.C.G.A. §§ 40-8-7(a) and (b) state:

(a) No person shall drive or move on any highway any motor vehicle, trailer, semi trailer, or pole trailer, or any combination thereof, unless the equipment upon any and every such vehicle is in good working order and adjustment as required in this chapter and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.

(b) It is a misdemeanor for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any street or highway any vehicle or combination of vehicles:

(1) Which is in such unsafe condition as to endanger any person;

(2) Which does not contain those parts or is not at all times equipped with such lights and other equipment in proper condition and adjustment as required in this chapter; or

(3) Which is equipped in any manner in violation of this chapter.

Even if you are driving perfectly, a police officer may still stop your vehicle if any of its equipment is non-operational. Examples include, but are not limited to, missing taillight, broken tag light, or a low hanging bumper. Although the spirit of this law is to protect other motorists from defective vehicles on the road, this traffic offense is often used as a “pre-textual stop,” meaning the officer stops you for this offense in hopes of discovering another criminal offense, particularly DUI. Although the law used to criticize these types of stops, a line of United States Supreme Court cases has weakened these types of challenges.[1]   

Penalties

Under Georgia law, technically, these equipment violations are misdemeanors and are therefore punishable with up to a maximum fine of $1,000 and up to one year in jail. Although these are the maximum punishments, equipment violations generally do not result in jail time. Normally, if you get the defective equipment fixed, and provide proof of such to the prosecuting attorney, your case will likely be dismissed.

Challenging the Stop

If an officer pulls you over for an equipment violation and ultimately arrests you for DUI, you may lodge a challenge to the stop of your vehicle through a motion to suppress or a motion in limine. These challenges are designed to attack the stop, arrest, or any evidence gathered as a result of an unlawful stop and/or arrest.

If you are facing a DUI-Less Safe case, the State will have to prove “less safe driving.” If you have only been cited for defective equipment, the State will have great difficulty in proving alcohol caused you to be a less safe driver because there is no “less safe” driving act (ie. speeding, failure to maintain lane, improper turn, etc.). This is a major issue a defense attorney should raise during trial.

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.


[1] See, Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001); Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769  (1996); Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996); and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997).

Georgia DUI Law: Challenging the Stop, Speeding

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 the nature, methods of proof, penalties, and challenges to a speeding offense in Georgia.

The Offense

Speeding is one of the most common traffic offenses associated with DUI arrests in Georgia. This is likely because officers are equipped with speed detection devices and it is the type of offense that catches an officer’s eye.

In order to fully understand speeding laws in Georgia, you would have to refer to various parts of five different statutes: O.C.G.A. §§ 40-6-180, 40-6-181, 40-6-182, 40-6-183 and 40-6-188. The provisions of O.C.G.A. § 40-6-180 also cover the catch-all offense known as “driving too fast for conditions.”

Georgia has “absolute” speed limits, meaning a violation occurs even at one mile per hour over the posted speed limit. Unless otherwise posted, the absolute speed limits are as follows:

  • 20 miles per hour in school zones
  • 30 miles per hour in urban and residential districts
  • 35 miles per hour on unpaved country roads
  • 65 miles per hour on sections of physically divided highways without full access control on the state highway system
  • 70 miles per hour on interstate highways, and
  • 55 miles per hour on other roadways.

Absolute limits aside, Georgia’s basic speeding law prohibit driving at a speed greater than is “reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing.” Therefore, a driver must always drive at a safe and reasonable speed. What is safe and reasonable depends on the circumstances. 40 miles per hour on a clear day with no traffic is more safe and reasonable than 40 miles per hour in a snow storm with heavy traffic.

Penalties

Under Georgia law, technically, speeding offenses are misdemeanors and are therefore punishable with up to a maximum fine of $1,000 and up to one year in jail. Although these are the maximum punishments, speeding cases generally do not result in jail time.

For a first time speeding offense, the maximum fines are as follows:

  • $0 for speeding by 5 miles per hour or less over the limit
  • $25 for speeding by more than 5 but less than 10 miles per hour over the limit
  • $100 for speeding by more than 10 but less than 14 miles per hour over the limit
  • $125 for speeding by more than 14 but less than 19 miles per hour over the limit
  • $150 for speeding by at least 19 but less than 24 miles per hour over the limit
  • $500 for speeding by at least 24 but less than 34 miles per hour over the limit

Speeding in “work zones” can be punished by fines ranging from $100 to $2,000 and/or jail up to twelve months as this is a “high and aggravated” misdemeanor. Also, anyone convicted of speeding at 85 miles per hour, or 75 miles per hour on a two lane highway, will be deemed a “super speeder,” causing an additional $200 fine to be added to the sentence. These fine amounts are base fines and do not include statutory surcharges which significantly increase the total fine amount. A sentencing judge can always add on defensive driving courses as a condition of your sentence. In addition to fines and course, a motorist can also expect points to be assessed on their license by DDS (2-6 points depending on the offense).

Challenging the Stop

A speeding charge may be challenged through a motion to suppress or a motion in limine which are designed to attack the stop, arrest, or any evidence gathered as a result of an unlawful stop and/or arrest.

The State has the burden of proving each and every law regarding speed detection devices.

First, the arresting officer will attempt to establish they visually estimated your speed. Visual estimation of speed is sufficient to convict in Georgia.

In order to establish a “visual estimation,” the officer must testify that: he/she is trained in the visual estimation of speed for vehicles, how long he/she has been trained, how he/she was trained, how many visual estimations he/she has made in their career, and that he/she is accurate to within +- 5 mph of their estimation.

The State must also prove:

  • The department issuing you the citation has a permit issued by the Department of Public Safety to operate speed detection devices. The prosecutor may either admit this document into evidence or just have the officer testify that such a permit exists. O.C.G.A. 40-14-2.
  • The prosecutor must prove that the location where you were speeding is on the Department of Public Safety’s list of approved locations for the use of speed detection devices. Many prosecutors think the officer’s testimony alone is enough to satisfy this requirement, but the prosecutor must admit this list into evidence. O.C.G.A. 40-14-3.
  • The prosecutor must prove that the agency issuing the citation has a permit from the Federal Communications Commission to operate the device, and that device was inspected by a technician before it was placed into service and that the device is serviced by the technician annually. This provision only applies to citations based on radar evidence. This provision does not apply to speeding tickets issued based on Lidar/laser, VASCAR, pacing, or other forms of speed detection. O.C.G.A. 40-14-4.
  • The prosecutor must prove that the officer tested his speed detection device for accuracy at the beginning and end of his shift and that he recorded the results in a logbook. This may be proven through oral testimony, or the prosecutor may admit the logbook into evidence. O.C.G.A. 40-14-5.
  • The prosecutor must prove that there are signs at least 24 by 30 inches when you enter the county, city, etc. warning that there are speed detection devices in use. O.C.G.A. 40-14-6.
  • The prosecutor must prove that the officer was not using the speed detection device within 500 feet of these signs. O.C.G.A. 40-14-6.
  • The prosecutor must prove that the officer was not using the speed detection device within 500 feet of a change in speed limit sign. O.C.G.A. 40-14-6.
  • The prosecutor must prove that the officer operating a stationary speed detection device was visible for at least 500 feet to traffic. O.C.G.A. 40-14-7.
  • The prosecutor must prove that your speed was more than 10 mph over the posted speed limit unless you are in a school zone, historic district, or residential zones all of which must be properly marked. An area with a speed limit of 35 mph is not automatically a residential zone. The area must be properly marked as a school, historic, or residential zone. O.C.G.A. 40-14-8.
  • The prosecutor must prove you were not within 300 feet of a change in speed limit sign (if inside a municipality) or within 600 feet of a change in speed limit sign (if outside a municipality). O.C.G.A. 40-14-9.
  • The prosecutor must prove that there was not a change in the speed limit in the 30 days prior to your being issued the ticket at the location where you were given the ticket. O.C.G.A. 40-14-9.
  • The prosecutor must prove the location where you received the ticket is no on a grade in excess of 7 percent. Just because a location is listed on the Department of Public Safety’s list of approved locations for the use of speed detection devices this does not mean the location has been measured for the grade. This is an excellent source for cross-examination. O.C.G.A. 40-14-9.
  • The prosecutor must prove the officer issuing you the ticket has a permit to operate speed detection devices. This may be proven by admitting the permit or having the officer testify that he is certified. O.C.G.A. 40-14-10.

In addition to these technical requirements, an experienced attorney can also raise challenges to errors committed by the operator of a speed detection device. Examples include, but are not limited to: lack of training, misidentifying your vehicle as the speeding vehicle, improper movement or aiming of the speed detection device, the officer’s visibility and/or reaction time, interference with the device (weather conditions, radio interference, air conditioning, reflective surfaces).

As we can see, there are many intricate requirements the prosecution must properly satisfy in order to prove speeding. Because of these various requirements, it is highly recommended you contact an experienced attorney who can raise these challenges in a pre-trial motion or at trial.

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.