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VIDEO – One Leg Stand Field Sobriety Test

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by Scott Smith and Ryan Walsh

You’ve agreed to take standardized field sobriety tests and the next thing you know you are raising your foot off the ground, trying to balance on one leg. What is this test? What is the officer looking for? Those questions are the subject of today’s Peach State Lawyer video blog.

The last of the three standardized field sobriety tests is the one leg stand field sobriety test. This test is performed exactly how it sounds. The officer will have you stand with your feet together, hands down by your side. You will then raise one leg six inches off the ground and hold that position, counting out one thousand-one, one thousand-two, and so on, until the officer asks you to stop.

Typically, this test will last approximately thirty seconds. During this test, the officer is looking for four specific clues. Those clues are number one, putting your foot down, hopping, swaying, and using your arms for balance.

If any of these four clues happen once at any time during the test, it constitutes a clue. Exhibiting two clues out of four clues indicates to the officer that you are an impaired driver. An experienced Georgia DUI attorney can help you look at a copy of the video and point out the good and bad things done on the test. This includes the officer’s description and demonstration of the test.

In our experience, people who have nothing to drink can sometimes perform very poorly on this dexterity test.

Our officer of experienced Georgia DUI attorneys can look at your performance on any of these field sobriety tests and tell you the legal and factual defenses we can use to help get your charges dismissed, reduced, or prepared to fight at trial.

We’re available twenty four hours a day, seven days a week to meet with you regarding your pending DUI case. Call us today at 404-581-0999.

Thank you so much.

VIDEO – Walk and Turn Field Sobriety Test

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Imagine a straight line in front of you. Put your left foot on that line. Place your right foot in front of your left foot with your left toe touching your right heel. Put your hands down by your sides and hold that position without moving. Hello, I’m attorney Scott Smith and today we’re talking about the walk and turn field sobriety test, the second of the three standardized field sobriety tests approved by the National Highway Traffic and Safety Administration designed for the detection of impaired drivers.

Are you still holding that starting position I discussed in the beginning of this video? It’s tough isn’t it? Now imagine you’re on the side of the interstate with cars passing at seventy miles per hour, or in a parking lot next to a busy intersection with people looking on. You’ve got an officer that’s already told you that the test is to determine whether or not you’re safe to continue to drive. Is it getting more difficult? You haven’t even begun to actually walk the test yet.

The walk and turn field sobriety test provides the officer seventy-six different opportunities to notice eight clues of impairment. If the officer notices only two clues, it gives the officer enough evidence to believe you are an impaired driver.

The eight clues are broken down into two phases. The first phase is the instructional phase. During the instructional phase the officer asks you to get into the position described at the start of the video. During this instructional phase the officer is looking to see if you break that stance of if you start too soon by mimicking the officer’s movements. Those are the first two of eight clues.

During each series of nine steps you take, the officer is looking for four clues on each step. They are looking to see whether you miss touching heel to toe, whether you step off your line, whether you stop walking at any point during the step taking, or whether or not you use your arms for balance.

There are two final in the walking phase. One is for not turning exactly as instructed by the officer, and the final clue is for taking the incorrect number of steps in either series of nine steps, going out or coming back.

Does this test seem difficult to you to pass? The test isn’t designed to be passed. It is designed to show the officer clues of impairment to help them justify arresting you. We recommend to all our clients to politely refuse to participate in field sobriety testing, especially the dexterity testing. Do not help the officer make their case.

Our team of experienced Georgia DUI attorneys are trained just like the police officers in how to properly perform field sobriety evaluations. We are trained to look at each test and break down whether or not the instructions are correct, whether the officer demonstrated it correctly, and whether or not you actually exhibited the clues the officer said he saw at the time of you conducting these tests.

If you’ve been stopped for DUI and you are worried about your performance on the walk and turn field sobriety test, or whether or not you’ve just got questions for us, call our office today for a free consultation. We’re available twenty-four hours a day, seven days a week. Our telephone number is 404-581-0999.

Thank you.

VIDEO – What Happens to Your Georgia Drivers License After You Are Arrested for DUI in Georgia

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You’ve been arrested for DUI in Georgia. The officer has read you Georgia’s Implied Consent Notice, requesting a blood or breath test. What do you do? What happens if you refuse to take the State’s test? Can you get a permit to drive to work or school? What happens to your drivers license after DUI arrest in Georgia?

Watch the video below and call us today at 404-581-0999 for a free consultation or to answer your questions.

What happens to your Georgia Driver’s License after DUI arrest in Georgia?

Hello, I’m attorney Scott Smith and today we’re talking about what happens to your Georgia Driver’s License after you’ve been arrested for DUI here in Georgia.

You’re arrested for DUI. You’re read from an orange card asking for a blood or breath test and then later the police officer takes your license from you. In its place he hands you a sheet of paper called a DDS 1205 form. I’ve got an example right here. It has some basic information on the top and on the bottom it says notice of license suspension and temporary driving permit.

Can the officer take my license from me? What is this sheet of paper? Why did I receive it?

That piece of paper is going to act as your temporary Georgia driver’s license. In Georgia, our law allows the police officer to take your license from you and return it to the Department of Driver Services, also known as DDS for suspension by simply being suspected of DUI. That piece of paper that the officer gives you in place of your license states your license will be suspended in thirty days if you do not request an appeal of the suspension within ten business days from the date of your arrest. In essence, you only have ten days to prevent an automatic suspension of your license. If you don’t appeal the pending suspension, your license gets suspended.

You may lose your ability to drive for one year. If you are arrested for DUI and you did not give the officer the test they requested, that means a one year suspension with no ability to get a work permit to drive for work. If you did give the requested sample, and the result was over the legal limit, you may be eligible for a work permit.

At our office of experienced Atlanta criminal defense attorneys, we can look at your case, let you know if you need to submit a request for appeal, help you make sure your appeal is submitted correctly so you do not lose your right to drive, and we’ll even give you a copy of the ten day letter which you can submit on your own to get the process started.

Don’t lose your ability to drive after a DUI arrest. Call us today at 404-581-0999. Thank you.

DUI Refusal Reaches the Supreme Court

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SUPREME COURT UPDATE:  Can they charge me with a crime for refusing the breath test?

On April 20, 2016, the Supreme Court heard argument on Birchfield v. North Dakota.  The case addressed the question of whether a State can criminalize the refusal to submit to a chemical test of blood, breath, or urine without a warrant.   In both Minnesota and North Dakota, it is a separate crime to refuse to take the State chemical test.   Prosecutors for both the State of Minnesota and the State of North Dakota argued that an officer’s request for a breath sample without a warrant protects against evidence spoiling (BAC dropping over a period of time).  Interestingly, the Supreme Court Justice’s peppered both lawyers with factual scenarios about the reality that, with today’s technological capabilities, it is fairly easy for a police officer to contact a magistrate judge to obtain a warrant.   Interestingly, the Justices did not focus all of their tough questions towards the State.  It appears that the Justices had significant feelings about the minimally invasive nature of a breath test in comparison with a blood test.  There also seemed to be some confusion about the use of a roadside portable breath test versus a State administered breath test at the jail.

Georgia currently does not have a criminal penalty for refusing to take the State administered breath test.  Instead, Georgia law allows officers to request a civil penalty (loss of your license for 12 months) for refusing to take the State administered blood/breath/urine test.   However, the decision of the Supreme Court will almost certainly impact Georgia DUI cases going forward.   If the court were to side with the defendants in this case, we certainly can expect the opinion to express strong 4th amendment language that could impact other types of DUI cases.   On the other hand, if the court were to side with the State of Minnesota and North Dakota, we can expect other States, Georgia included, to introduce legislation that would criminalize the refusal of a State administered test.

Our lawyers will be watching closely when the Supreme Court releases their opinion this fall.  For more information about the case, check out the oral arguments at:

http://www.supremecourt.gov/oral_arguments/audio/2015/14-1468   and

http://www.scotusblog.com/2016/04/argument-analysis-criminal-penalties-for-refusal-to-take-a-breathalyzer-test-in-jeopardy/

We will certainly provide an update when the Supreme Court releases their final ruling.

Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

DUI: Forced Blood Draws

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DUI: Forced Blood Draws

By Mary Agramonte

The most shocking and disturbing development in DUI law is the practice of forced blood draws. Picture this: You have a glass or two of wine and are pulled over on your way home. The officer asks you a couple questions, but eventually requests you to step out of your car. He asks you to do a series of voluntary field sobriety tests, which are supposedly designed to accurately detect DUI. You do so in an effort to prove to the officer that you are clearly able to drive and are not impaired at all.

However, not everyone has the same balance and coordination skills. You might have been the kid in school who was picked last for team sports because you were notoriously uncoordinated. Or you might have a bad back or are recovering from a knee surgery. Or maybe you are one of the many people who feel extreme nervousness when an officer pulls you over. Regardless, the officer asks you to stand on one leg, and you accidentally have to tap the ground and hold your arms up to keep your balance. You “fail” the test, and are immediately arrested.

Mary Agramonte received her juris doctorate degree from Georgia State University.

Mary Agramonte received her juris doctorate degree from Georgia State University.

At this point, you might decide to refuse the breath test since your efforts to demonstrate that you are not intoxicated have already proven completely useless. You probably have heard that it is best practice to decline a breathalyzer test, which is true. However, the reality is when you refuse a breathalyzer, it is likely your driver’s license will be suspended for a year under Georgia’s Implied Consent law at O.C.G.A. § 40-5-67.1(d). The law states that yes, you have a right to refuse a chemical test, but if you do, you may face a one year loss of all driving privileges. And now, a more disturbing reality may come after your refusal of a breath test. In 2006, the Georgia legislature added another section to the Implied Consent law, effectively stating that even after exercising your right to refuse a chemical test, that the evidence can still be obtained by a search warrant, against your will.

The Reality of Forced Blood Draws

As inconceivable as it may sound, Georgia law actually allows the police officer to take you to the jail to strap you to a table, place you in a head lock, and force a needle in your arm to get evidence of your blood alcohol level. Forced blood draws occur without your consent and completely against your will. The procedure that includes the gurney, straps, and headlock is the same in every case, even if you are compliant and are no longer refusing the test. Forced blood draws allow the State of Georgia to have a higher DUI conviction rate since the blood evidence will significantly strengthen their case.

CHECK OUT THE FOX 5 ATLANTA STORY ON BLOOD DRAWS: Fox 5 Atlanta Blood Draw Story

What about my Constitutional rights?

The Fourth Amendment to the Constitution guarantees the right to be secure from unreasonable searches, and that search warrants must be supported by probable cause.

Unfortunately, current Georgia law allows police officers to make a quick roadside phone call to a judge to obtain a search warrant to obtain a blood sample from that individual. All they need is probable cause that you are driving under the influence. Evidence might come from your performance on the voluntary field sobriety tests, your appearance (blood shot eyes, disheveled clothing), and your behavior (smell of alcohol, slurred speech, admissions). These factors tend to be very subjective and it is all in the hands of the arresting officer to determine what he saw.

The law and reality is troubling. With this knowledge, I hope that Georgia residents can prepare themselves for the possibility that the officer won’t take “no” for an answer when it comes to getting a hold of your blood in order to prove in court that you are guilty of the misdemeanor crime of driving under the influence. If you are pulled over, you can politely decline all field sobriety and chemical tests, but be informed about the possibilities of losing your driver’s privilege and even being held down to have a needle forced in your arm.

Do I need a Lawyer?

Yes. If you have been arrested for driving under the influence of alcohol or drugs, and then forced to submit to a blood test under a search warrant, please call our office to speak with an experienced DUI attorney. We know the ways to attack every facet of a DUI case, even a forced blood draw. Call us today for a FREE CONSULTATION at 404-581-0999 and maximize your chances of excluding the blood results in your day in court.

 

NEW YEARS EVE DUI CHECKPOINT

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NEW YEARS EVE DUI CHECKPOINT:

Every year, thousands of Georgians celebrate the dawning of a New Year by enjoying the several New Year’s parties around town.  As we all know, those parties often include music, food, and alcohol.  According to the Insurance Institute for Highway Safety, New Year’s Day is the second most deadly day for drivers with an average of 140 deaths related to alcohol.  Because of this, law enforcement agencies throughout the State set up DUI checkpoints to prevent drunk drivers from getting into accidents.   We certainly advise that you find a safe ride home on New Year’s Day.  But if you find yourself at a DUI checkpoint, it’s important to know your rights before the Officer mistakes you for a dangerous driver.

STAGE 1:

DUI checkpoints are often set up in two stages.   The first stage is an initial screening stage.   Here, a DUI trained officer will check for some of the common physical manifestations of a person who is driving under the influence.  Often, we see police reports that include the initial screening officer smelling the odor of alcohol coupled with bloodshot and watery eyes.  The DUI officer is also looking for the driver’s behavior.  Particularly, the DUI Officer is looking to see if the person is being belligerent or combative.

It’s important to remember to always be polite in these situations.  If the DUI Officer becomes agitated with the way you respond to his questions, then you’ll likely find yourself at the DUI checkpoint much longer than you would expect.   The Officer will likely ask you how much you’ve had to drink.  If you’ve only had one beer then it’s ok to let the Officer know that.   In Georgia, it is not illegal to consume alcohol and drive.  However, it is illegal to consume alcohol the extent you become a less safe driver.  So, the fact that you have had one beer does not automatically mean you’ve broken the law.

STAGE 2:

The DUI Officers are trained to instruct drivers to the second stage of the checkpoint if they feel there is enough evidence to continue a DUI investigation.  The second stage will often include a second DUI Officer who will almost certainly request the driver to perform field sobriety testing.  As we’ve discussed in the past, field sobriety testing is weighed heavily against the driver.  For example, the walk and turn evaluation is one of the three standardized field sobriety tests.  The evaluation includes a series of clues the Officer is trained to look for.  There are seventy-six opportunities for the driver to display a clue.  If the driver shows two of the seventy-six clues then that is enough for the Officer to establish someone are impaired.   More concerning is the initial studies on this examination showed only a 65% accuracy rate in optimal conditions.

Because of the unreliability of field sobriety testing, we always suggest to our client to refuse any field sobriety testing.  The chances of the Officer making a mistake are extremely high and the consequences to the driver can be drastic.   Finally, if the DUI Officer feels there is enough evidence obtained from all of the interactions then he or she will make an arrest.

As I mentioned earlier, the easiest way to avoid a DUI is call a cab or have a sober driver.  Personally, I’ve found the car service Uber to be fantastic.  But, sometimes we find ourselves in difficult circumstances.

If you or a friend ends up getting charged with DUI on New Year’s Day please contact the office immediately at 404-581-0999.   Our lawyers will be on call and available to for a free consultation.

DS-1205 / ALS: This Sheet of Paper is Nice, but I Want My License Back, Man!

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by Ryan Walsh

 

So you’ve received notice from the Office of State Administrative Hearings that your case has been assigned to a Judge and is scheduled for a hearing date. That’s great. What’s next? As mentioned in our blog on DS-1205 forms, the administrative license suspension hearing relates directly to your choice to submit to a chemical test of your blood, breath, or urine after being arrested for DUI and read Georgia’s Implied Consent Law.

 

Background

There are four potential outcomes after an officer requests a chemical test of your blood, breath, or urine:

  1.  The officer does not submit a petition to suspend your license. If this happens, you will receive a refund of your $150 administrative hearing fee after the time period for the officer’s submission expires.
  2. You refuse to give a sample of your blood, breath, or urine.
  3. You give a sample of your blood, breath, or urine and it’s under the legal limit. That legal limit is .08 for anyone 21 or older, and .02 if you are under 21.
  4. You give a sample of your blood, breath, or urine and it’s over the legal limits, .08 and .02 respectively.

The majority of Administrative License Suspension (ALS) hearings are focused on outcomes B and D, refusal or a breath test over the legal limit.

 

The first thing I want to know after I know whether it was a breath test or refusal case is whether you have prior DUI history. I need to know if you’ve had an administrative suspension for DUI in the past five (5) years, because if you have it’s going to impact our potential options. A second administrative suspension in five years triggers a three year suspension, 120 days of which are a hard suspension with no work permit involved. And a third administrative suspension in five years automatically triggers a 2 year suspension, no work permit. The work permit is only eligible if you are over 21 AND submit a sample for the state test. If you refuse to take the test, that suspension is a hard one year suspension that can only be overcome with a “win” in your case (dismissal, nolle prosequi, reduction of the charge of dui, or not guilty verdict). I need you to remember what happened in your prior case, and I’m going to need that information to best advise you on how to proceed.

 

After I understand your criminal history, I need to know your priorities. Is your #1 priority beating the DUI? Is it protecting your license? Sometimes these two priorities conflict, and an in-depth understanding of your priorities is again necessary to provide the best advice possible.

 

Hearing Day

So you’ve made it to hearing day. We’ve talked about your DUI history and your priorities. We’ve talked if you want to be present at the hearing. And we’ve talked about the ways this can play out. But in case we haven’t talked, this is what can happen on an ALS hearing date:

  1. Your attorney or the officer does not show up on time for the hearing. If your attorney does not show up, you are in default, and the license suspension is affirmed. Your license is suspended for one year. As your attorney, we do not miss administrative hearings. If you submitted a chemical test, you may be eligible for a work permit or reinstatement depending on your age and DUI history. If you refused a chemical test, your license is suspended for one year, no permits. If the officer does not show up, and has not filed a valid conflict, your suspension will be rescinded, and you will be eligible to have your license reprinted.
  2. Your officer does show up, and we have a chance to informally speak with them about you, about your case, about your unique circumstances. This is generally our first chance to speak with your arresting officer, and we can potentially save your license without having an administrative hearing. Again, a clear understanding of your priorities is important in determining the best course of action in the administrative phase.
  3. Finally, if we can’t work the case out with the officer, we will have the administrative hearing. An administrative hearing on a DUI arrest is a civil hearing that covers the following:
    1. Did the officer have reasonable suspicion to stop you?
    2. Did the officer have probable cause to arrest your for DUI?
    3. Did the officer read the appropriate Georgia Implied Consent notice in the correct way and in a timely manner?
    4. If you consented to a state administered chemical test, was that test administered properly?

That’s it. Just those four areas. After the hearing, the judge will issue their decision based on those four aspects of the DUI arrest.

 

We at the law offices or W. Scott Smith, P.C. are all well trained in the administrative hearing process. We’ve all experienced each and every possible outcomes of the administrative hearing, including the hearing victory. Contact us today at 404-581-0999 or visit http://www.peachstatelawyer.com if you’d like more information.