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Georgia DUI Law – Necessity Defense to a DUI Charge

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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

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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). 

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[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

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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

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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 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

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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 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.

Georgia DUI Law: Challenging the Stop, Improper Turn

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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 improper turn.

The Offense

O.C.G.A. § 40-6-120 requires the driver of a vehicle intending to turn at an intersection to do the following:

(1) RIGHT TURN. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway;

(2) LEFT TURN.

(A) As used in this paragraph, the term “extreme left-hand lane” means the lane furthest to the left that is lawfully available to traffic moving in the same direction as the turning vehicle. In the event of multiple lanes, the second extreme left-hand lane shall be the lane to the right of the extreme left-hand lane that is lawfully available to traffic moving in the same direction as the turning vehicle. The third extreme left-hand lane shall be the lane to the right of the second extreme left-hand lane and so forth.

(B) The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of the turning vehicle. Whenever practicable, the left turn shall be made to the left of the center of the intersection and so as to exit the intersection or other location in the extreme left-hand lane lawfully available to traffic moving in the same direction as the turning vehicle on the roadway being entered.

(C) In the event of multiple turn lanes, the driver of a vehicle turning left shall exit the intersection in the same relative travel lane as the vehicle entered the intersection. If the vehicle is in the second extreme left-hand lane entering the intersection the vehicle shall exit the intersection in the second extreme left-hand lane. Where there are multiple lanes of travel in the same direction safe for travel, a vehicle shall not be permitted to make a lane change once the intersection has been entered.

The most common way to violate this law is when you make a “wide turn.” A wide turn is when you start your turn in one lane and drift over into another lane while executing or finishing your turn. This is a common maneuver you will see on the road and a close look at the language of the law prohibits this conduct.

Interestingly, in State v. Morgan, 260 Ga. App. 263, 581 S.E.2d 296 (2003), the Court of Appeals upheld the trial court’s suppression of the traffic stop. Morgan was stopped for making a right hand turn into the left lane of two eastbound lanes of Hwy 278, then immediately got into a left turn lane to turn onto Hazelbrand Rd. approximately 100 yards from where he entered Hwy 278; the turn was reasonable and the reasonable suspicion for the stop was unreasonable. Because the spirit of our traffic laws is to ensure safe and reasonable driving among motorists, the Court decided, given the facts of Morgan and the reasonableness of his driving, there was no reasonable and articulable suspicion to stop his vehicle even though Morgan made a wide turn.

Challenging the Stop

Like any traffic stop,  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 (no traffic makes an improper turn more reasonable and safe)
  • Lighting
  • The mechanics of the turn

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.

DUI: Drugs

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DUI drugs charges can be a source of confusion for defendants and lawyers alike. This article will explore these laws and explain their meaning, what must be proven, how they are proven, and how to defend against them.

There are three ways to charge DUI Drugs cases: (1) DUI Drugs – Less Safe; (2) DUI Drugs – Per Se; and (3) DUI Drugs – Combined Effect.

DUI Drugs – Less Safe

Georgia law prohibits a person from driving a vehicle while under the influence of any drug to the extent that it is less safe for the person to drive. O.C.G.A. 40-6-391(a)(2). This “less safe” statute requires proof (beyond a reasonable doubt) that the quantity or amount of the prescribed, illicit, or even over-the-counter drug in the person’s system caused impairment or rendered the person to be a “less safe driver.” Therefore, a person can be prosecuted even though the drugs were legally prescribed or were provided over-the-counter, so long as consuming those drugs caused you to be a less safe driver.

The “less safe” provision is the most common way DUI drugs charges are prosecuted. The State is not required to prove the accused had a particular level of drugs in their system. As a result, the State may prosecute even though no chemical test exists. The arresting officer will look for the following indications of impairment:

  • Admitting to using drugs
  • Bloodshot or watery eyes
  • Slurred or slow speech
  • Presence of drugs in vehicle or on person
  • Bad driving
  • Poor performance on Standardized Field Sobriety Tests

The key to defending these “less safe” drugs cases is raising doubt as to whether the drugs taken were the actual cause of the bad driving complained of. This causation element is something the State is required to prove. There are many reasons for bad driving unrelated to the consumption of drugs. In addition, defense counsel should raise challenges to the arresting officer’s training and experience in detecting and investigating DUI Drugs cases. In many instances, the arresting officer does not have the degree of training required to properly investigate these cases such as an officer who is qualified as a Drug Recognition Expert (DRE). Furthermore, defense counsel should raise a Harper challenge to the scientific validity of the Romberg Field Sobriety test if that test was performed by the accused. [1]

DUI Drugs – Per Se

Georgia law makes it illegal for a person to operate a vehicle while there is any amount of marijuana or a controlled substance, as defined in O.C.G.A. § 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether any alcohol is present in the person’s breath or blood. O.C.G.A. 40-6-391(a)(6).

Given the language of the law, the mere presence of a drug (prescribed or not) will constitute a violation of this code section. The question becomes how an arresting officer would know whether the accused had a valid prescription or not? Without an admission, this would be difficult for a prosecutor to prove.

Issues of proof aside, Love v. State, 271 Ga. 398 (1999), has essentially wiped out the “DUI Drugs – Per Se” law entirely. The Love case held that O.C.G.A. § 40-6-391(a)(6), was too broadly drawn, as it incriminates both legal and non-legal users of marijuana, constituting a violation of the Equal Protection clause of both the Georgia and United States Constitutions. This is the primary reason most DUI Drugs cases are prosecuted as “Less Safe” cases.

What remains of the DUI Drugs – Per Se statute is to punish those cases where someone is driving with drugs in their system which offer no lawful use (cocaine, heroin, etc.).

DUI Drugs – Combined Influence

Under O.C.G.A. § 40-6-391(a)(4), a person is prohibited from driving a vehicle while under the influence of any two or more of the substances provided in the DUI code section (alcohol, drugs, or toxic vapors) to the extent it is less safe for the person to drive.

Again, we see the State being required to prove the accused was a less safe driver because of the combined effects of two or more intoxicants (alcohol and drugs – prescribed or not). Although these cases present greater challenges, a skilled attorney can raise doubt as to whether the combined effect of intoxicants actually caused less safe driving.  

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] The Romberg test consists of the subject tilting their head back, closing their eyes, and counting in their head until the subject believes thirty seconds has elapsed and then telling the officer when they believe those thirty seconds had elapsed.

CDL & Georgia DUI Law

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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

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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

DUI: One Leg Stand Test

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Both the Walk and Turn (W&T) and One Leg Stand (OLS) tests are considered, “divided attention” tests. The officer is determining how well a subject can multitask (mentally focus on multiple tasks or ideas at once). We will see there are two stages: an instruction stage and a performance stage. For the purposes of today’s article, we will just discuss the OLS test.

One Leg Stand (OLS)

Test Conditions

The OLS Test requires a reasonably dry, hard, level, and non slippery surface in relatively safe conditions. Standardizing this test for every type of road condition is unrealistic. Therefore, if road conditions are not ideal, officers are trained to:

  1.  Ask subject to perform the test elsewhere; or
  2.  Only administer HGN

The original research studies of this test suggest that individuals over 65 years of age; people with back, leg or inner ear problems; or people who are overweight by 50 or more pounds may have difficulty performing this test. In addition, the original studies suggest that individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.

Test Procedures

The test is initiated by the officer giving the following instructions, accompanied by demonstrations:

  1. “Please stand with your feet together and arms down at the sides, like this.” Officer demonstrates placement of feet and arms.
  2. “Do not start to perform the test until I tell you to do so.”
  3. “Do you understand the instructions so far?” Officer trained to receive some affirmative response before continuing.
  4. “When I tell you to start, raise either leg with the foot approximately six inches off the ground, keeping your foot parallel to the ground.” Officer demonstrates the position.
  5. “Keep both legs straight and your arms at your side.”
  6. “While holding that position, count out loud in the following manner: ‘one thousand one, one thousand two, one thousand three,’ and so on until told to stop.” Officer demonstrates counting while maintaining position.
  7. “Keep your arms at your sides at all times and keep watching your raised foot, do you understand?” Officer trained to ensure subject indicates understanding and answer any of subject’s questions regarding the test.
  8. “Go ahead and perform the test.”

The officer is trained to always time the thirty seconds in which they evaluate the test. The test should be discontinued after 30 seconds. If the subject places his or her foot down, the officer is trained to instruct the subject to pick foot up again and continue counting from where the subject’s foot touched the ground.

Test Interpretation

There are a maximum number of four clues on this test. Officers are trained that if the subject shows two or more clues or fails to complete the test, there is a probability of impairment.

Subject sways while balancing. This clue refers to side to side or back and forth motion while the subject maintains the One Leg Stand position. Swaying means a distinct, noticeable side to side or front to back movement of the elevated foot or of the subject’s body. Slight tremors of the foot or body should not be interpreted as swaying.

Uses arms to balance. This clue is recorded if the subject moves his/her arms 6 or more inches from the side of the body in order to keep balance.

Hopping. This clue is recorded if the subject is able to keep foot off the ground, but resorts to hopping to maintain balance.

Puts foot down. This clue refers to when the subject is unable to maintain the OLS position by placing the raised foot down one or more times during the thirty second count.

It is possible for the officer to observe two clues simultaneously. If a subject is unable to perform the test, the officer is trained to record observed clues and document the reason for not completing the test.  

Call Us Today

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.