In the time I have practiced law, clients and potential clients have asked the below-listed questions. The purpose of this page is to provide the reader answers to the most commonly asked questions about Georgia DUI Law and procedure. After reading the 150 questions and answers below, you will know more about Georgia DUI Law than most Lawyers! We hope that you find these Georgia DUI FAQs helpful:
The Arrest Process
I was on private property when I was arrested for DUI. Can the police do that?
DUI laws do not distinguish between driving on public roads versus private property and apply anywhere in Georgia, whether on a street, highway, or private property.
DUI laws apply to all moving motor vehicles. A vehicle has been defined to mean “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.”
This includes golf carts driven on or around golf courses or subdivisions as well as tractors. There is even precedent to prosecute someone for being under the influence of alcohol while in a power wheelchair. “Private Property” is not a valid defense to DUI in the State of Georgia.
The police never saw me drive the car. Can I get a DUI when they never saw me drive?
Proof that anyone actually saw you driving a motor vehicle is not required if there is sufficient circumstantial evidence that shows that you recently drove a vehicle.
If an officer arrives at the scene of an accident and you are the only person near the vehicle and the engine is warm, it is reasonable for the officer to assume that you had driven the vehicle prior to the accident. An officer can approach a parked or stopped vehicle to speak with you and if you are sleeping or sitting with the ignition or lights on that may be enough to establish that you were “in control” of the vehicle or had recently driven. In Georgia, circumstantial evidence carries the same weight as direct evidence if a jury decides the circumstantial evidence warrants belief. The comparative weight of direct and circumstantial evidence is a jury decision. In the end, there must be evidence of being in physical control of a motor vehicle, not eyewitness evidence.
Why wasn't I read my Miranda rights?
An officer is only required to inform you of your Miranda rights in limited circumstances. Miranda applies after a person has officially been taken into custody (detained by police), but before any interrogation takes place. A person is considered to be "in custody" any time they are placed in an environment in which they do not believe they are free to leave.
For example, an officer can question you after a traffic stop and investigate whether you are under the influence of alcohol without reading your Miranda rights and your statements could be used against you later in court. If you are formally arrested for DUI, the officer does not have to inform you of your Miranda rights unless he intends to interrogate you after the arrest. Miranda does not apply to statements a person makes before they are arrested. Similarly, Miranda does not apply to statements made "spontaneously," or to statements made after the Miranda warnings have been given.
After you are arrested for DUI, the officer will read you an implied consent notice to request that you take a breath or blood test. You do not have be informed of your Miranda rights prior to responding to the officer's request and you are not entitled to speak to an attorney prior to making the decision to refuse or submit to a test. Miranda can apply to situations where additional crimes are discovered after the DUI arrest. For example, if drugs are found in a car after the DUI arrest, the arresting officer will have to read Miranda prior to questioning about the drugs.
Do police officers have quotas?
Tracking officer activity in terms of arrests is a common way for police departments to determine appropriate staffing levels and measure employee performance. It's difficult to say how many other local police departments tie officer job performance to the number of arrests they make, since quotas are generally viewed by the public in a negative light. In 2010, the Roswell Police Department came under fire when it was discovered the department had set a mandatory officer quota of 25 DUI arrests per year. Similarly, the Atlanta Police Department was investigated in recent years for creating a quota system that led cops to cut corners in order to meet performance quotas of nine arrests and two search warrants per month.
There are subjective elements to every DUI stop, and the case against you may hang on the officer's credibility in observing driver behavior. If there is a quota in place, the officer's credibility will be called into question due to the incentive for officers to arrest people they might otherwise have let go in borderline cases.
My opinion is that an unwritten quota exists for all DUI task force officers and Georgia State Patrol Nighthawk officers. Clearly, there is no written quota. However, as in any profession, people are rewarded for performance. There is likely no difference insofar as police officers are concerned.
What is the legal limit in Georgia, and what is DUI Less Safe?
The concept of a “legal limit” is one of the most misunderstood legal concepts. People are shocked to learn that in Georgia there is no “legal limit.” What we have in Georgia is a DUI “Per se” limit of .08 and DUI “Less Safe.” DUI “Per Se” means there is a presumption of impairment when a person tests .08 or more. A presumption does not mean you are automatically guilty. The State still must prove you were in fact .08 or more. However, if proven, you are presumed to be DUI. You are always presumed to be innocent until proven guilty beyond a reasonable doubt. This part of the DUI law does not surprise the accused.
The surprise comes when someone is under .08 and gets arrested for DUI “Less Safe.” DUI Less safe is not a lesser offense of DUI. It's a DUI proven in a different way. If you are under the influence of alcohol to the extent that it is less safe for you to drive, you can be charged with DUI even if you are under .08.
If you are between .05 - .08, you can be charged with DUI less safe, and there is no presumption of impairment. If you are less than .05 there is the presumption that you are not impaired.
Did I have a right to a lawyer before deciding to take field sobriety test or the breath test?
You would think you would have the right to an attorney before providing any incriminating evidence. The 5th and 6th Amendments to the United States Constitution would seem to apply in this situation. However, this is where our courts are intellectually dishonest. Somehow, performing field sobriety tests is not “testimonial in nature.” Of course this is utter nonsense and a complete travesty. Our Georgia courts do not really care about the rights of people suspected of driving under the influence because our judges are elected politicians and DUI is just too unpopular. Amongst DUI defense attorneys we call rulings like this the “DUI exception to the Constitution.”
Now, in few situations Miranda warnings may apply before field sobriety testing. Miranda is a United State Supreme Court precedent that interprets the 5th and 6th Amendments to the Constitution. If a suspected DUI driver is in custody (which has a legal definition) prior to the completion of the DUI investigation, that person would have to be advised on their Miranda rights, including the right to an attorney. Custody is a legal term of art that does not mean when a police officer says, “you are under arrest.” Legal custody is defined as when a reasonable person would feel that they are not free to leave. A reasonable person is not the person charged but what most people would feel in that situation. The trial judge at a motions hearing determines issues of custody and in some situations custody is more obvious than others. For example, if there is already a warrant for the driver, or if drugs are found in the car and the person would be arrested for the drugs regardless of the DUI. In other situations custody is less clear. Sometimes a delay in the investigation or when other more experienced officers are called to the scene, a person is in custody because they cannot leave. However, merely submitting to a traditional DUI investigation is not legal custody according to our courts.
Are field sobriety tests mandatory?
No. You cannot be compelled to give physical evidence against yourself. However, the police officer is not required to tell you that the field sobriety tests are voluntary unless you specifically ask. Many of the better police officers do tell you up front that the tests are voluntary because it makes them appear more fair and reasonable.
The roadside Alco-Sensor is also voluntary and should never be taken by anyone suspected of being under the influence. However, the State-administered test of your breath, blood, or urine is a mandatory test, and if you refuse it, your license can be suspended for a year. Many people inadvertently refuse this test because it is requested after the reading of the implied consent warning on the side of the road. So, you are asked to take the breath test at the police station, while on the side of the road. Many people confuse this with a request for the roadside Alco-Sensor. Many are then even more confused in situations where they took a roadside Alco-Sensor, as they feel like they have already submitted to testing and there is no reason to submit to another test. To be clear, the test requested after you are read the implied consent (the orange card) is the State-administered, mandatory test. The best practice is to submit to the official test and then ask the arresting officer to give you an independent test of your blood. You are only entitled to an independent test if you first submit to the State test. You cannot choose your test and you have to take their test first before having the right to your own independent test.
Are there limitations to roadblocks in Georgia?
Yes. The limits to roadside checkpoints are based on both Federal Constitutional precedent and Georgia Constitutional precedent. In fact, the Georgia Supreme Court has opined many times that the Georgia Constitution provides greater protections to the accused than the Federal Constitution.
A roadblock is an exception to the 4th Amendment right against unreasonable search and seizure. As an exception, the times, places, and manner in which a checkpoint is established are narrowly drawn, and in consideration of the rights of those traveling.
The police cannot simply decide to implement a roadblock because they want to see if people are driving under the influence. The police cannot set up a roadblock for general law enforcement purposes; to see if anyone is breaking the law. Those examples are far too broad a purpose and would be impermissible under the narrowly drawn guidelines involving police roadblocks. Remember, the general principal is that people should be free in the persons, papers, and property, under the 4th Amendment to the United State Constitution.
Specifically, all roadblock must adhere to the following minimum standards:
- There must be a legitimate purpose that is not based on general law enforcement.
- The decision to implement the roadblock must be made by police supervisors, not officers in the field. See. Brown v. State S12G1287 (2013).
- All vehicles must be stopped and no group of people can be specifically targeted. Selective enforcement would automatically make the roadblock impermissible.
- The roadblock must be well identified.
- The screening officer must be sufficiently trained to make a quick initial assessment if you are potentially impaired. The stop therefore, must be brief and cause the least possible inconvenience to drivers.
- The roadblock cannot be random or a roving roadblock and it must be pre-planned and stationary.
- The decision to implement the roadblock must be made at the programmatic level, based on a written policy and guidelines that are consistent with Federal and State Constitutional law. See Williams v. State S13G0178 (2013).
If the roadblock in a particular case does not meet these strict standards, any evidence gathered therefrom is inadmissible in court. Your Georgia DUI Attorney will file a motion to suppress the evidence obtained during the roadblock. If granted by the court, all the evidence against the accused would become inadmissible in court. Without that evidence, the State could not prosecute the case.
Do I have to answer a police officer's questions such as how much I had to drink?
The short answer is no. You do not ever have to answer questions of any police officer that may incriminate yourself.
You have a 5th Amendment Constitutional right against self-incrimination. That being said, you need to be careful because most police officers will not “appreciate” you exercising your rights, and as a result will take advantage of any mistake made to cause you problems.
When looking at any issue as to how you should deal with a police officer, there is the “law” and there is reality and practicality. Police officers are conditioned to think that exercising rights is tantamount to admitting that you have violated the law. This is of course not true. If a police officer wanted to search my car, they would not find contraband. However, I still wouldn't want to suffer the inconvenience and humiliation of a search. I would likely simply say no.
That being said, saying “no” may actually cause me more inconvenience because it would escalate the encounter. He would assume contraband and likely ask a magistrate for a warrant. He would detain me and if he felt he violated my rights, he may even create reason to arrest me in order to justify his bad behavior. I see this every day.
During a police encounter you must be extremely careful. Be polite. You must provide your identification and any documents required by law (insurance and registration). If questioned about drinking exercise your right no to incriminate yourself. Simply decline to answer on advice of counsel. Do not lie and say “2 beers,” if you had more. It's better to not answer than to lie. Do not take voluntary field sobriety test or the roadside Alco-Sensor. However, do so very loud and clear so it is heard on the video. Offer to take the State-administered test after implied consent is read. Make sure that you are not given a refusal because you have pissed off the police officer. I am certain that many people are given “refusals” simply because the police are angry that they have declined to answer questions or do field sobriety tests. After agreeing to take the State's test, request on the side of the road that after you test you want to go to the nearest hospital to take a blood test. Ask to go to an ATM if necessary to get money to pay for it. The police must reasonably accommodate your right to a test. Do not be talked out of it by the officer or the people at the hospital. Many hospital employees do not want to go to court, and as a result tell people that their test is inadmissible in court. Also, ask for the hospital to keep a “chain of custody” with their test to assure its admissibility in court. Finally, ask for any alcohol test from whole blood and not serum, as serum tests exaggerate alcohol readings.
Should I take field sobriety tests?
No. Field sobriety tests are designed for you to fail.
They are designed by government to justify government detention and further testing. There is no person on planet earth that can successfully complete field sobriety testing. In fact, the HGN test (eye test) is allegedly a scientific test, yet this medical test is interpreted by police officers that are improperly trained. People got to medical school to interpret horizontal gaze nystagmus and it is offensive to common sense that a police officer could interpret a medical test as a result of taking a 24 hour class in standardized field sobriety testing.
In fact, the word “standardized” should be questioned as well. The studies that verified these tests occurred in the 1970's and 1980's when the per se limit in most states was .10. They were never re-verified for the .08 standard. They were simply accepted. In addition, NHTSA, has changed the administration and scoring of these “standardized tests” multiple times. Yet, there have been no studies to verify the new tests.
The last straw was in 2013. NHTSA simply removed all of the limitations for testing the elderly and the obese. The original studies specifically said that obese people and the elderly should not be tested and that results for those people should be questioned. NHTSA simply removed all of that from the 2013 student field sobriety manual. They didn't go back and verify the tests on those groups. They simply removed the language because God forbid one person is not convicted of an alleged DUI. No one should take these government tests seriously when they can change them to meet their needs anytime they want.
What are some of common reasons a person is pulled over for suspicion of DUI in Georgia?
A person can be pulled over for any violation of any of our traffic laws found in Title 40 of the Georgia Criminal Code.
However, the most common reasons include:
- Speeding, O.C.G.A. 40-6-180 and O.C.G.A. 40-6-181
- Failure to Maintain Lane O.C.G.A. 40-6-48
- Reckless Driving O.C.G.A. 40-6-390
- Following to closely O.C.G.A. 40-6-49
- Fleeing or attempting to elude a police officer O.C.G.A. 40-6-395
- Racing O.C.G.A. 40-6-186
- Aggressive Driving O.C.G.A. 40-6-397
- Failure to Obey a Traffic Control Device O.C.G.A. 40-6-20
- Operating a Vehicle While Texting O.C.G.A. 40-6-241.2
- Unlawful Passing of a School Bus O.C.G.A. 40-6-163
Of course, any moving violation is sufficient reason to pull someone over to start a DUI investigation. As long as a police officer has lawfully interacted with a person, they can investigate any crime seen in their presence. Most commonly, police officers either see evidence of drug procession in “plain view,” or evidence or impairment. Sometimes the police see evidence of property crimes as well.
I think the officer was out of his jurisdiction, does that make my arrest invalid?
Georgia courts have held that, “[a]s a general rule, a municipal police officer is authorized to investigate crimes and/or arrest suspects only for those infractions that occur within that officer's territorial jurisdiction. [They] have held, however, that an officer has authority to arrest a person accused of violating any law or ordinance governing the operation of a vehicle ... where the offense is committed in his presence regardless of territorial limitations.” State v. Bethel, 307 Ga. App. 508 (2010) (quoting Griffis v. State, 295 Ga. App. 903, 904 (2009)).
In addition Georgia State Troopers can arrest in any county or city and have concurrent jurisdiction therein. Sheriff's Deputies are constitutional officers and all have statewide arrest powers. A Sheriff can make an arrest in any county or municipality in the State of Georgia. The “Dukes of Hazzard” television program did not correctly portray the law on television.
How much alcohol will make me drunk?
Drunkenness is based on personal tolerance, but legal intoxication is based upon alcohol absorption in the blood.
Factors that contribute to the rate of absorption include gender, metabolism rates, combination of any medications that may have been taken, the elapsed time, frequency of drinks, any meals that were eaten prior to drinking, etc. BAC is the amount of alcohol in the blood. It is a percentage determined by measuring the number of milligrams of alcohol per 100 milliliters of blood. The average person eliminates approximately 0.015% of alcohol per hour from the body, or the equivalent amount of alcohol in a 12 ounce can of beer, five ounce glass of wine or a one ounce shot glass of vodka.
It is important to note that many people confuse the standard of proof in a DUI case to be that they must be drunk to be convicted. Drunkenness is not the standard used in a DUI case in Georgia. In fact, the real standard is whether the person is under the influence of alcohol, drugs, or prescription drugs to the extent that they were less safe to drive than had not consumed the substance.
Why was I asked to perform multiple breath tests?
Many officers will ask you to blow into an Alco-Sensor to obtain a preliminary breath sample in order to assist him in determining whether you are an impaired driver. The officer may ask you to blow into the Alco-Sensor device multiple times or ask you to submit a sample at the beginning of the stop and then again after performing field sobriety evaluations. This is an attempt to determine whether alcohol is the impairing substance involved and whether the first test was a reliable result.
The Alco-Sensor is a roadside field sobriety test, but the numeric result of the Alco-Sensor cannot be used in court. The prosecutor can only ask if the result was positive or negative for the presence of alcohol.
After a suspect is arrested for DUI, the arresting officer will read the implied consent warning and ask for the State-administered test of breath, blood, or urine. That is why many people submit to several samples of their breath. The State-administered breath test is taken on an Intoxilyzer 5000 machine. Georgia law requires you to provide two sequential breath samples, and the officer cannot demand more than two breath samples if both are valid. If you are only able to provide one adequate breath sample, with the second showing as “insufficient,” the State can use the one valid sample as evidence or the officer can request additional samples to be taken.
I wanted a blood test. Why was it not offered?
It is at the arresting officer's discretion to designate the type of test and the officer can request multiple tests. If the officer requests one type of test and you state that you will only submit to a different type of test, your response will be deemed a refusal unless you agree to submit to the type of test requested by the officer.
If you first submit to the State-administered test, you are entitled to additional independent tests of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing. You must make your request for an independent test within a reasonable time after being read the implied consent notice. Your request does not have to be made directly to the arresting officer and can also be made after rescinding your initial refusal, as long as you first submit to the State test. The officer must make reasonable efforts to accommodate you in obtaining an independent test.
So, to be clear, a person arrested for DUI in Georgia can only get the test of their choice after they first submit to the test designated by the arresting officer.
Should I have refused or taken the breath test?
There is no bright line rule when it comes to refusing or taking a breath test if you have been arrested for DUI. If you have not consumed any alcohol, taking the breath test can prove that you were not under the influence of alcohol. If you have consumed alcohol and agree to submit to a breath test, if the result was 0.05 grams or less, it is presumed that you were not impaired. This inference can be rebutted, however, by evidence of erratic driving or other clues of impairment observed by the officer.
No inference is created for BAC levels greater than 0.05 grams, but less than 0.08 grams. If your test result was 0.08 grams or more, you are presumed to have been under the influence of alcohol and if the test result is admitted at trial, defending your case will depend on contesting the breath test result and may require expert testimony regarding the testing equipment and whether proper procedures were followed in collecting the sample.
If you refuse to submit to a breath test, the prosecutor will not have a test result to show that you were under the influence of alcohol and must rely on other evidence to prove impairment. Not having a test result could significantly weaken the State's case and strengthen your own, but will depend on the facts of your case.
Evidence the prosecutor may introduce to show impairment includes evidence of slurred speech, bloodshot eyes, fumbling with your driver's license or registration, repeating questions or comments when speaking with the officer, odor of alcohol, providing incorrect or inconsistent answers, open containers of alcohol in the vehicle, admissions of drinking alcohol, your performance on field sobriety evaluations, and your manner of driving. If the arrest was recorded the patrol car video will also be admitted as evidence.
Other considerations may also affect your decision. If you submit to take a breath test or if the results of the test show a BAC of 0.08 grams or more you will be subject to an administrative suspension and your license may be suspended for a 12-month period beginning 30 days after your arrest. If you submitted to the breath test you will be eligible for a limited driving permit for the duration of the suspension and will be eligible for early reinstatement after only 30 days if you complete DUI School and pay a reinstatement fee.
If you refuse to take a breath test, you cannot get a limited driving permit and must serve the full 12-month suspension. The suspension will be lifted if you are acquitted of the DUI charge or if the DUI is dismissed or reduced to a lesser charge in the criminal case. Though in some Georgia courts, it may be months or even longer before your case is resolved.
As a result, many people have to suffer a 12-month administrative license suspension for refusing the breath test in order to contest their case in court. A refusal suspension is a “hard suspension” that precludes the ability to get a limited permit of any kind.
Ultimately, there is no general advice that applies to all situations, as there can be advantages to taking the State's test and advantages to refusing to test. In a refusal it is harder for the State to prove the DUI against you. However, the driver's license consequences are more severe in refusal cases than in cases where the person arrested submitted to a test.
Are breath tests accurate?
There are many limitations to the Intoxilyzer 5000 which is the device used in Georgia to test breath samples in DUI cases. Before providing a breath sample, the officer must have observed you directly and continuously for a minimum period of 20 minutes. The purpose of this is to eliminate any possible residual mouth alcohol that could potentially affect the test results.
Even items that do not contain alcohol may cause the machine to report the detection of alcohol. Smokeless tobacco, denture adhesive, mints, lip balm, and blood can all cause higher readings if present in your mouth during testing.
Many medical conditions can cause the testing device to return false positive readings. If you suffer from gastric reflux, regurgitation could raise the level of mouth alcohol present within 20 minutes of submitting to a breath test. The device must be regularly inspected and tested to ensure it gives accurate results and officers must undergo training to operate the device. If proper procedures were not followed during testing, the validity of the results may be challenged. Certain conditions in the testing room may also interfere with the Intoxilyzer 5000, including radio frequency interference and mouth alcohol.
People who suffer from acid reflux can aspirate alcohol into the breath-testing machine. Contents from a person's stomach are breathed into the machine, combining with alcohol from a person's lungs. As a result, the reading on the Intoxilyzer is exaggerated. In close cases, this increase can make the difference between a reading above or below .08.
The results of the breath test must be within 0.020 grams percent of each other and within three hours of driving, otherwise the results are inadmissible at trial because the reliability of the breath-testing device can be called into question if the readings are outside of those parameters. Finally, there have been studies that show a breath-testing bias against small-framed women. The studies have shown that the results for small-framed women are exaggerated.
Where do I get an independent test and when do I have that right?
You have the right to an independent test after you first submit to the State-administered test. You may get an independent test from qualified personnel of your own choosing and the officer must make reasonable efforts to accommodate you in obtaining an independent test. You can request a test at a hospital or other testing facility, but the testing location must be within reasonable distance.
In evaluating whether your right to an independent test was violated, the courts will look at the totality of the circumstances and specifically: your ability to pay for the requested test; the delay in giving the test if the officer complies with your request; availability of police time at the time the request is made; location of the requested facility; and your ability to make arrangements personally for the test.
A police officer cannot deny your right to an independent test as long as the request is reasonable. Some police officers try to talk people out of their independent test rights by offering a second State-administered test or claiming that the test will not be allowed in court.
If a person is denied their independent test right, the prosecution cannot use their test. A judge will decide at a motion hearing if a person's independent test right is violated.
Can I choose my chemical test, or do I have to take the test the officer requests?
The Georgia Implied Consent Warning specifically says that “after first submitting to the required State tests, you are entitled you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. The entire warning is codified in O.C.G.A. 40-5-67.1
Statutorily you are required to submit to testing before you are entitled to choose your own test you must take the test the state requests. You can never choose the initial test unless the police officers actually asks you for your preference.
Also, pursuant to O.C.G.A 40-5-55, if a person is involved in an automobile accident that causes serious injury or death to another person, they have given consent to chemical testing of your blood, breath, urine, or other bodily substances. There is no right to refuse testing and implied consent law is inapplicable.
The statute states in part: [A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.
Can I use an independent test of my blood, breath, or urine?
Yes. You have the right to an independent test of your blood, breath, urine, or other bodily substances at your own expense and from qualified person's of your own choosing. However, getting that test into evidence is another matter altogether.
Under the rules of evidence, the independent test must be determined to be reliable. The most important factor is chain of custody. You must ask the hospital to keep a chain of custody to prove it is your test. Chain of custody means a record of everyone who interacted with blood sample. Your lawyer must be able to subpoena (bring to court) everyone that moved the blood sample. This is to show that the blood sample is, in fact, yours.
In addition, under the Harper case, the testing methods and procedures must be recognized in the scientific community as the correct procedures. In effect, it's a “best practices test.” The State is held to the same standard with their testing.
What is a forced blood draw, and will the alleged refusal still be used against me if the police take my blood anyway?
After a DUI arrest, the police officer will read the Georgia Implied Consent Warning and ask for the State-Administered Test of your breath, blood, or urine. If you refuse testing, your license will be suspended. However, the arresting office may still try to get a blood test from you by asking a magistrate to issue a warrant based on probable cause of impairment.
A forced blood draw is after an arrest for DUI, the arresting officer seeks out a search warrant for your blood, and if issued, your blood is forcibly drawn from you without your consent. As a result, it is the worst of both worlds. You suffer the license consequence of a refusal, yet you still have a test used against you.
If you first refuse to submit to a chemical test to determine your blood alcohol concentration and the officer obtains your blood through a warrant, your alleged refusal will still be used against you and your license may still be suspended for one year without the ability to obtain a limited driving permit. The refusal suspension is only based on your alleged refusal after being read Georgia's implied consent notice and does not rely on whether a blood sample was taken after a warrant was issued.
Why does it say I refused when I took a breath test?
A “refusal” refers to the State-administered test requested by the officer after you were placed under arrest. The officer must read an implied consent notice to you prior to requesting the test to inform you of the benefits and consequences of submitting or refusing to submit to a test. You may have taken a preliminary breath test on a handheld Alco-Sensor device prior to your arrest. The officer uses this preliminary breath test to aid in his determination as to whether you are under the influence of alcohol to the extent that you are less safe to drive. It may also be used to eliminate alcohol as a possible factor if the officer is unsure whether you are under the influence of alcohol or drugs. The preliminary breath test result cannot be used as direct evidence of a specific blood alcohol concentration and the officer can only testify as to whether the result was positive or negative for alcohol.
Agreeing to take a breath test on a handheld Alco-Sensor device is not agreeing to submit to the State-administered breath test after arrest. The State-administered breath test is performed on an Intoxilyzer 5000 machine and is subject to regular maintenance requirements and quarterly inspections to ensure valid test results. If you agreed to breathe into an Alco-Sensor, but did not agree to submit to a breath test on the Intoxilyzer 5000, you refused the State-administered test. Many people confuse taking the road-side Alco-Sensor with the official breath-test at the station. As a result, people think they have taken the “breath-test” and refuse additional testing because they think they have already complied with the requirement to take a test. This is the most common reason why people are charged with a refusal.
Can I rescind my refusal to submit to testing?
Yes it is possible.
If you decide later to submit to chemical testing, your initial refusal may be invalidated. You must affirmatively request the test yourself and your request for testing must be made within a very short and reasonable time after the prior refusal, at a time when the test would still be accurate, when testing equipment is still readily available, when honoring the request would result in no substantial inconvenience or expense to the police, and when you have been in custody of the arresting officer and under observation for the entire time since arrest.
There is some debate as to whether you can rescind your refusal after a police officer gets a warrant to take your blood forcibly. This matter is presently being litigated in the Georgia appellate courts.
Saving Your License
Why would my license be suspended for possessing marijuana when I was not driving?
All violations of Georgia's Controlled Substances Act cause the suspension of your Georgia driver's license, regardless of whether or not you were driving. A first conviction within 5 years is a 6-month suspension. A second conviction within 5 years is 12 months and a third conviction within 5 years is 5 years. No limited driving permit is available for a first or second conviction within 5 years. A permit is available for a third conviction within 5 years after the first 2 years of the suspension have been served.
For misdemeanor possession of marijuana charges, a plea of nolo contendere will be accepted by DDS once every 5 years to prevent the suspension of your driver's license. To qualify, you must be over the age of 16 and attend a DUI Alcohol or Drug Risk Reduction program within 120 days of sentencing. A nolo contendere plea will be at the sole discretion of the judge in your case.
A better option is a conditional discharge plea or a diversion program. With diversion or conditional discharge, the defendant does not actually plead guilty. Upon completion of diversion or conditional discharge, the marijuana case is dismissed and the defendant is eligible to have the arrest expunged.
Will I lose my driver's license?
In any case where the driver is suspected of and arrested for DUI in Georgia, there will be the possibility of an administrative suspension of your driver's license and a suspension if the driver is convicted of the DUI.
In cases where the driver submitted to a test and the results indicated an alcohol concentration of .08, the driver is facing a minimum of a 30-day administrative license suspension and if convicted at trial a suspension based upon the number of prior DUI convictions.
If you did submit to the State test and it is your first administrative suspension, you will be able to get a limited use driving permit during the suspension period and you will be eligible for early reinstatement after only 30 days if you attend DUI school.
If you refused testing, you face a 12-month hard administrative suspension of their driver's license. A hard suspension means the driver is not eligible for a restricted license or limited permit. In addition, the driver will suffer a suspension if convicted. However, any administrative suspension period served will count towards any future suspension if you are later convicted of the underlying DUI charge.
Drivers are never automatically reinstated after a suspension. At a minimum a person cannot reinstate their license until they have attended a Risk Reduction Course (DUI School) and pay a reinstatement fee.
If you are an out-of-state licensee, the State of Georgia cannot suspend your driver's license but can suspend your privilege to drive within the State. If you do not have a Georgia driver's license, the Georgia Department of Driver Services cannot issue you a limited driving permit. Some people forget to reinstate their privilege to drive in Georgia and remain ineligible to drive in Georgia for life. This can come back to haunt those drivers who do not realize that they cannot drive in Georgia. If a person is ineligible to drive in Georgia they can be arrested for suspended license, even though their license is otherwise valid in the 49 other states. For license suspension purposes, the look-back period to determine the number of prior convictions is only 5 years. If this is your first DUI conviction in Georgia, the maximum suspension period is 12 months. If you complete DUI School and pay a reinstatement fee you will be eligible for early reinstatement after only 120 days.
If you are 21 years old or older, you can apply for a limited use driving permit for the duration of the license suspension that will allow you to drive to work, school, substance abuse counseling, DUI School, for medical care and treatment purposes, to pharmacies to drop off or pick up prescriptions, court appearances, probation appointments, and community service. If your license has been administratively suspended, due to an implied consent refusal, you will not be eligible for a limited driving permit or early reinstatement.
For drivers under the age of 21 who are convicted of DUI, if your blood alcohol concentration was less that 0.08 grams percent, the test results were suppressed, or if you refused to submit to the State-administered breath test, the license suspension period is 6 months. If your BAC was 0.08 grams or more, the license suspension period is 12 months. No limited use driving permit or early reinstatement is available to any driver under the age of 21. If you are convicted of DUI drugs or DUI Prescription Drugs, your license will be suspended for a period of 6 months. No limited driving permit is available for drivers convicted of DUI drugs, whether illegal, over-the-counter, or prescription. The fact that a person has a lawful prescription is not a defense to DUI in Georgia.
The license consequence for a second DUI conviction within 5 years is a 3 year suspension. No limited permit is available for the first 120 days. A limited permit may be granted after 120 days, but is conditioned upon the installation of an ignition interlock device for a minimum period of 1 year. In order to apply for an ignition interlock device limited permit you will have to present a certificate of eligibility from a DUI court program or proof of enrollment in substance abuse treatment. A clinical evaluation must be completed prior to enrolling in a treatment program.
After the period expires requiring an ignition interlock device, you can apply for a limited permit without the ignition interlock device restriction. After 18 months, you will be eligible for early reinstatement of your full driving privileges if you provide proof that an ignition interlock device was maintained for period of 1 year or an order from the court exempting you from this requirement, proof of completion of a substance abuse treatment program (if required by the clinical evaluation), and a reinstatement fee.
The license consequence for a third conviction within 5 years is a 5-year license revocation. You will also be declared a habitual violator. After 2 years, you can apply for a probationary license to use for the remaining 3-year revocation period that may have restrictions as to the places, routes, and times you are allowed to travel. If you violate the terms of your probationary license, it will be revoked and you cannot reapply for a regular driver's license until the original 5 year revocation period has ended or for 2 years – whichever is greater. During the probationary license period, you will have to install an ignition interlock device.
I have a CDL, how will a DUI arrest affect me?
Commercial drivers are held to higher and stricter standards than other licensees and DUI is a major traffic violation. Additionally, refusing to submit to a State-administered test requested by a law enforcement officer is also a major traffic violation.
Major traffic violations will result in the disqualification of your commercial driving privileges for a minimum period of one year for any person regardless of license class, whether the offense was committed in a commercial vehicle or non-commercial vehicle, and if the offense was committed in a jurisdiction other than the State of Georgia. A second conviction will result in a lifetime disqualification, unless the second conviction occurred as part of the same incident as the first conviction.
If convicted of DUI, CDL drivers can get a regular class C permit to drive if convicted of DUI and are otherwise qualified.
Will I lose my license for a first DUI?
Your license will be suspended for a maximum period of 12 months for a first DUI conviction in Georgia. If you show proof of completion of DUI School and pay a reinstatement fee you may reinstate your license after 120 days. If you are age 21 or older, you can apply for a limited use driving permit for the duration of the suspension period that will allow you to drive to work, school, substance abuse counseling, DUI School, for medical care and treatment purposes, to pharmacies to drop off or pick up prescriptions, court appearances, probation appointments, and community service. If an immediate family member is unlicensed, you can drive them to work, school, medical care, and to pharmacies to drop off and pick up prescriptions.
If your license is suspended prior to conviction due to an implied consent refusal, you will not be eligible for a limited use driving permit and will not be eligible for reinstatement until the full 12 month refusal suspension has been served. If you are under the age of 21 and your BAC was less than 0.08 grams, the test results were suppressed, or if you refused to submit to the State-administered test, the license suspension period is 6 months. If you are under the age of 21 and your BAC was 0.08 grams or more or if your license was previously suspended for certain offenses, your license will be suspended for 12 months. No early reinstatement or limited driving permit is available to any driver under the age of 21 at the time of conviction.
If you refused to submit to State-administered testing, you may also be facing an administrative suspension. A refusal subjects you to a 12-month license suspension and you may not receive a limited driving permit for the entire suspension period.
Of course any talk of suspension assumes a conviction for the DUI or an administrative license suspension. If you are acquitted of the DUI there is no suspension, and any administrative license suspension will be reversed.
The officer took my license. Can I still drive?
If your license was taken by the officer due to refusing to submit to a state-administered test or due to test results indicating a blood alcohol concentration at or above the legal limit, the officer should have issued you a 1205 form to use as a temporary driving permit for 30 days following the DUI arrest.
You may drive during that 30 day period with that temporary permit with no restrictions as to where or when you may drive. After 30 days, your driver's license will be suspended and you may or may not be eligible for a limited driving permit during the suspension period. If you filed an appeal within ten business days of the arrest, you will receive an extension of the temporary driving permit for an additional 90 days. The 90 day extension will be a DDS form which, when accompanied with the driver's copy of DDS Form 1205, will serve as the temporary driver's permit for the 90 day extension. DDS may issue an extension of the 90 day temporary driving permit upon receipt of documentation from the Office of State Administrative Hearings indicating that a final decision has not yet been entered in the case and will not be entered prior to the expiration of the temporary driving permit.
In some cases, the officer will not return your license but will issue a 180 day driving permit with no restrictions as to where or when you may drive. The 180 day driving permit is a sticker that is applied to the DUI citation and will remain valid until the expiration of 180 days. In the event the case has not been resolved within 180 days, DDS shall issue another 180 temporary driving permit. Additional extensions may be issued for as long as the case remains pending. If the officer did not return your driver's license and did not issue a 1205 form with a 30 day temporary driving permit or a 180 day driving permit sticker on your DUI citation, your driver's license may still be valid. You should contact DDS to check your license status. You should also still file an appeal with DDS in case the officer initiated an administrative license suspension but failed to provide you a copy of the 1205 form. 30 days after your arrest, you should contact DDS again to confirm your license status. Ultimately, you are allowed to drive if your Georgia DUI Lawyer files a 10-day letter and the ALS hearing has not yet been scheduled.
If I miss the filing date for my 10-day letter, are there options?
The 10-day letter must be postmarked by the 10th business day after your arrest to ensure that your request for a hearing is accepted. If it has been less than 30 days since your arrest, you can still send the letter along with the required $150 filing fee and it may still be accepted, but there is no guarantee of acceptance. If the letter is not accepted, the $150 filing fee is refundable after 90 days.
If you were never served with a DDS Form 1205, you should pay the filing fee and request a hearing even if the 10 day filing period has passed, on the grounds that you were never given notice by the officer of a pending administrative license suspension. If you submitted to a State-administered test, you will be eligible for a limited driving period if your license is administratively suspended. You will also be able to reinstate your license after 30 days if you show proof of completion of DUI School and pay a reinstatement fee. Any period of time your license is suspended will be counted toward fulfillment of any future suspension if you are later convicted of DUI.
If you refused to submit to a State-administered test, you will not be eligible for a limited driving permit or early reinstatement and will be subject to a 12-month license suspension.
For all practical purposes there is no harm in sending in a late 10-day letter. The Department of Drivers Services may accept a late letter. Also, your attorney can contact the General Counsel's office at the DDS and ask permission to send a late letter. If there are extenuating circumstances, the DDS has allowed hearing requests that are several months late.
It's been more than 30 days. Can I still drive with the DDS 1205 Form?
As long as your Georgia DUI attorney files an appeal of your suspension by sending the “10 day letter,” you can still legally drive. Your privilege to drive is not limited in any way prior to the ALS hearing requested with the appeal. I would suggest you keep your DDS 1205 form in a resalable storage bag because you do not want the permit to deteriorate.
In addition, anyone charged with DUI should go to the Department of Drivers Services (DDS) and apply for a Georgia ID card, since you will need a picture ID while your case is being litigated. As with applying for a new license, bring with you the secure ID requirements needed to get an identification card.
If pulled over by the police, present your identification card and your DDS 1205 form.
In the event you were not given a DDS 1205 form and your license was also taken, you can still drive with the tickets provided after your arrest. In every case, including cases where the accused was not given a DDS 1205 form, our office recommends sending a “10 day letter” as a precaution. The privilege to drive is simply too import to risk. Some police officers fail to provide the 1205 form to the accused yet still send it into the State. That is why we send an appeal in 100% of our cases.
I have my driver's license. Do I still need to send a 10 Day Letter?
It is the policy of the Law Offices of Richard Lawson to send a 10-day letter in all cases. Technically, the appeal is not needed when a person retains their license after arrest or is given a 180 day sticker on the bottom of their DUI citation. Also, the appeal is not needed if you tested below .08. So if an attorney tells you it's not necessary, they are technically correct.
However, we don't risk a person's driver's license based on how things are supposed to work. I have seen several instances where the arresting officer still sends in the DDS 1205 form, even though he has given a person his license back. This can be done surreptitiously, in an attempt to get the arrestee not to send in a 10 day letter. More often, it is done out of habit. The arresting officer as a matter of a regular course of action sends in the notice of suspension, even though he might not mean to send it in. In fact, I have been told by police officers that they were surprised to get notified of an ALS hearing because they did not mean to send in the DDS 1205 form in the first place.
If you don't appeal the suspension, it is possible that you could be driving with a plastic license that is in fact suspended. If pulled over for a traffic violation, you would then be arrested for driving on a suspended license. That is why we do not risk our client's freedom or privilege to drive. We send an ALS appeal in with every case, and it is a non-negotiable part of our practice.
I live in another state. Can Georgia suspend my license?
The short and incomplete answer is “No.” However, in reality the State of Georgia can cause your home state to suspend your license.
To begin with, Georgia can technically only suspend your privilege to drive in Georgia. If you have an out-of-state license you would be suspended in Georgia and the Department of Driver Services would assign you an agency reference number that allows the state to track the driver's privilege to drive in Georgia.
That being said, some states will honor a Georgia Suspension after an unfavorable ALS decision. Most states will honor a suspension after a conviction. The reason that most states honor suspensions after a conviction is because of the “Driver's License Compact,” to which Georgia is a member.
Even if you your home state will not honor a Georgia suspension, all convictions will be reported to your home state for whatever consequences they will impose. Furthermore, if convicted in Georgia you must separately reinstate your privilege to drive here, regardless of what happens in your home state. This is the single biggest reason people are charged with suspended license years after a case should have been completely resolved. If you don't reinstate your privilege to drive in Georgia, it will be suspended forever. Your license or privilege to drive in Georgia never reinstates itself or ages off. You could be completely valid to drive in 49 other states and the District of Columbia yet suspended here.
You must take all the steps to reinstate your privilege to drive in Georgia, regardless of the consequences your faced in your home state.
What is a 10-Day Letter?
When a person is arrested for DUI in Georgia they have 10 business days to appeal the automatic suspension of their drivers license or privilege to drive in Georgia. The “10-Day Letter” is the vernacular for the appeal of the suspension. There are 4 different types of 10-day letters. The first is sent when you have taken a test and the results indicated an alcohol concentration of .08 or more. The second is sent when you have allegedly refused testing. The third is sent when you are under 21 years of age and have tested .02 or more. Finally, the forth is sent when you have CDL and have tested .04 or more while driving your commercial vehicle.
With all 10-Day letters, you must send the State a $150 filing fee or the letter will not be accepted.
In the event you fail to appeal your suspension, your license can be suspended from as little as 30 days to as much as one year in the case of an alleged refusal.
It is a condition of employment in this office that we send a 10-Day letter in all cases, even if you have retained your license after your arrest. We do not risk a person's privilege to drive in any case, and as a precaution, we send the appeal in all cases, without exception.
If there is no administrative suspension, can I get my plastic license back, and if so when can I get it?
You are only entitled to get a new plastic license once your administrative license suspension is resolved. If your DUI attorney in Georgia successfully resolves the ALS hearing, you will be able to get a new license. This is not your old license but a new one and you do not have to pay a reinstatement fee since your license will never have been suspended.
Alternatively, if no hearing is necessary, after 90 days you will be contacted and informed that there was no administrative suspension. Upon receipt of the “90-day letter,” you can also go and get a new license. This usually happens when the arresting officers fails to, or decides not to submit a sworn DDS 1205 form to the Department of Driver's Services within 90 days of your arrest.
Can the judge give me a permit if the Department of Driver Services says I cannot get a permit?
The Department of Driver Services issues limited driving permits and a judge cannot issue a permit independently from DDS. The rules governing limited permits are administrative in nature. This means that there are rules that apply and those rules are not flexible or subject to judicial review.
The exception is for people in a DUI court program, as there is some judicial discretion insofar as permits for people in it. However, this discretion is only available after a person serves a period of suspension that is applicable in their situation based on the number of previous DUI convictions.
Will a BUI (Boating Under the Influence) suspend my Georgia driver's license?
A Georgia BUI will not suspend or have any effect of a person's Georgia driver's license or privileges to drive in this state. Only a person's boating privileges can be suspended due to a BUI.
However, BUI is a full misdemeanor in Georgia. That means a defendant can receive a punishment of up to 12 months in jail and a $1000 fine.
After my license suspension, will my driver's license be reinstated automatically?
Your license will not be reinstated automatically. In fact, if suspended for a DUI, your license will be indefinitely suspended unless you actively take steps to reinstate it. Such a suspension will also prevent you from getting a license from any state that is part of the multi-state driver's license compact.
For a first DUI conviction within 5 years, you may apply for reinstatement after 120 days. In order to reinstate, you must present a certificate of completion of a DDS approved DUI Alcohol or Drug Use Risk Reduction Program and pay a reinstatement fee of $210 ($200 if paid by mail).
For a second DUI conviction, you may apply for reinstatement after a four month hard suspension and one year with a ignition interlock device if you provide proof that an ignition interlock device was maintained in your vehicle for a period of one year, or an order from the sentencing court exempting you from the requirements of an ignition interlock device because of undue financial hardship, show proof of completion of a substance abuse treatment program (if required by the clinical evaluation), a certificate of completion of a DDS approved DUI Alcohol or Drug Use Risk Reduction Program and pay a reinstatement fee of $210 ($200 if paid by mail).
Does the 10 day letter apply to out of state license holders and visitors to the State of Georgia?
The short answer is that there is no way to know for sure whether a person's home state will honor a Georgia Administrative License Suspension. It is entirely up another state whether to honor a suspension. That being said, it makes no sense to risk a suspension when we can send in a 10 day letter and appeal it. At a minimum, the appeal will protect a person's privilege to drive in Georgia, and it can also save a suspension in a person's home state.
Additionally, the hearing will allow your Georgia DUI Lawyer an opportunity to meet with the arresting officer and question him or her under oath. Many times these hearing are used to find mistakes in the officer's procedures or weaknesses in the evidence against the accused. So, there is nothing to lose when requesting the hearing and potentially much to gain.
Should I try to get a license in another state to avoid a suspension after my DUI arrest?
No. It is fraud to attempt to get a license in another state in which you do not reside. Additionally, most states are part of the driver's license compact. As a result, most states will not issue a license unless the previous licensing state provides a clearance letter indicting there is no “hold” on the license.
Finally, if you successfully played the system and received a license in another state, the Georgia suspension would be seen when you made an attempt to renew that license. As a result, your new licensing state would not allow the renewal until the Georgia suspension was lifted. This is the result of the nationwide driver's license compact as well.
What happens if I pay a traffic ticket while having a DUI limited permit?
While driving on a limited permit you cannot get any new traffic violations or your limited permit will be revoked.
Paying the traffic ticket is admitting guilt and if it is reported to the Department of Driver Services it will be a violation of the terms of the limited permit. The consequences of revocation are severe – if your permit is revoked, you will not be eligible to reinstate your driver's license until 6 months from the date of the revocation.
If you get a ticket while driving on the limited permit, contact you lawyer immediately. He can then move the court date past your license reinstatement date. Once fully reinstated, the traffic ticket will not suspend your license. You can then either pay it or fight it like any other citation. Contact A Georgia Traffic Ticket Attorney from our office to help make sure your citation will not cause a revocation of your driver's permit.
What is the standard of proof in the ALS hearing?
The burden of proof in a Georgia ALS hearing is a preponderance of the evidence. This preponderance is based on which side of a case presents more convincing evidence and its probable truth or accuracy. It is not based on the amount of evidence presented.
This is a far lower standard of proof than in the criminal case and can be more easily met at a short hearing. The hearing judge will only consider the following issues:
- Whether the officer had reasonable grounds to believe the person was operating or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for DUI; or
- Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
- Whether the officer informed the person of his or her implied consent rights at the time a test was requested; and
- Whether the person refused the test; or
- Whether a test was administered and the results indicated a BAC of .08 grams or more or, if hte person is under the age of 21, a blood alcohol concentration of .02 grams or more or, if the person was driving a commercial vehicle, a blood alcohol concentratio nof .04 grams or more; and
- Whether the test was properly administered.
Generally the arresting officer presents his case without the help of an attorney. However, the Georgia State Patrol is represented at the ALS Hearing by an attorney. Having a skilled attorney representing the arresting officer makes it far more likely that an administrative suspension would be sustained. As a result, this alters defense strategy at the ALS Hearing.
What is HV (Habitual Violator)?
If you are convicted of committing certain offenses three or more times within a five-year period you will be declared a habitual violator. These predicate offenses are DUI, Homicide by Vehicle, Serious Injury by Vehicle, Fleeing of Attempting to Elude, Racing, Leaving the Scene of an Accident (Hit and Run), and Fraudulent or Fictitious Use of or Application for a Driver's License.
Any person declared a habitual violator will have his or her driver's license revoked for five years. After two years, they may apply for a probationary driver's license for up to three years if they meet certain conditions and would suffer extreme hardship if the probationary license were not issued.
Certain restrictions can be placed on the use of the probationary license such as specific places one can travel to and from, routes allowed to travel, times of travel, and the specific vehicles one is allowed to operate. Any person whose driver's license was revoked due to a conviction for DUI after an accident in which any person lost his life will not be eligible for a probationary license during the revocation period.
Also, any person who has been previously convicted of a drug or alcohol related offense will not be allowed to get a probationary drivers license after two years. Any person with a previous alcohol or drug-related conviction will have a full 5-year license suspension without the probationary license.
What is a points suspension, and how can I avoid being suspended for having too many points?
In Georgia any person over the age of 21 who accumulates 15 points in three years will have their license suspended.
For persons between the ages of 18-21, any 4-point offense (such as reckless driving) will also suspend the driver's license. For drivers under age 18, if they accumulate 4 total points, their license will be suspended. As a result, it is imperative that under 21 year-old drivers hire a Georgia Traffic Ticket Lawyer if cited for any 4 point traffic offense.
Some of the ways our office saves licenses include:
- Getting hte court to agree to a "zero points order"
- Using a nolo contendre plea for clients over 21 years of age (will not work for under 21 year-old clients)
- Getting the charges reduced to a lesser offense with less or no points
- Getting the client into diversion or defensive driving class
- Having the client attend a points reduction course if a conviction cannot be avoided
Hiring a Lawyer
What should I expect of my DUI Lawyer?
You should expect your Georgia DUI lawyer to be ethical and professional. Your DUI lawyer should be an expert in DUI case law and procedures and knowledgeable about the circumstances of your case. Your DUI attorney should keep in regular contact with you regarding the status of your case and his or her investigation and any relevant communications with the prosecutor or judge.
You should feel confident that your DUI case is being properly handled and thoroughly investigated for any potential defenses with your best interests in mind. You should expect your Georgia DUI attorney to act in your best interest and be candid with you about the best course of action in your case. No attorney can guarantee the outcome of any case. You should expect the best effort, not a particular outcome.
What is the difference between a DUI specialist and general practitioner?
General practitioners may be excellent attorneys but do not specialize in any particular area of the law. Representing many types of cases requires knowledge of many different practice areas and so specialized knowledge and training in any one particular area may be limited.
Defending a DUI charge in Georgia requires knowledge of proper stop and arrest procedures in traffic cases, blood alcohol concentration and drug testing, Constitutional law, field sobriety testing, sentencing and driver's license implications given your age and license class.
A DUI specialist is knowledgeable about the latest DUI case law, defenses, is trained in administering and scoring standardized field sobriety evaluations, and regularly works with experts regarding the limitations of breath testing devices and circumstances affecting the validity of test results.
Georgia DUI law is complex and a DUI specialist has the experience to determine what penalties you are facing given the circumstances of your case as well as the length of the potential driver's license suspension depending on whether you took a State test, refused the State test, appealed the administrative suspension, your age at the time of sentencing, and numerous other factors.
Georgia's DUI laws and procedures are constantly changing. Only a DUI specialist can keep up on the latest changes in our laws and procedures. You are best served by hiring a Georgia DUI specialist.
Can I get a public defender?
When you go to court you can be assigned a public defender or appointed counsel if you request one and meet certain qualifications; especially strict income guidelines.
Your must be legally indigent. Indigent does not mean inconvenient. The income qualifications and guidelines generally disqualify most people because the fact the arrested person has an automobile means the driver is not likely to be indigent.
You should be cautioned that a public defender cannot represent you at the administrative license suspension hearing because it is a civil matter and not a criminal proceeding. This administrative hearing can have a significant impact on your criminal case, however, and so you may be disadvantaged if you do not have representation in both your criminal and administrative cases.
If you proceed with the administrative hearing you may be questioned by the arresting officer and his counsel, if any, and your testimony can be obtained by the prosecutor and used against you in your criminal case. Additionally, if you enter into an agreement with the officer to withdraw the administrative suspension, that agreement can affect your criminal case as well.
Do Lawyers take credit cards?
The Law Office of Richard Lawson accepts all major credit cards as payment.
This includes Visa, MasterCard, American Express, and Discovery Card. We also take personal checks, money orders, bank checks, and cash.
Do I need an attorney that lives in the city or county of my arrest?
No. The attorneys in our office practice in many counties because we specialize in DUI defense. If we were general practitioners, we could handle several different kinds of case in one or two counties.
Since our office only handles DUI cases, we have a statewide practice. We also have the reputation throughout Georgia as experts in DUI defense. Our reputation allows us to practice in multiple counties because we are known as a DUI-only law office.
There is a myth advanced by some “local lawyers” that they get some special treatment because they know the judge and/or prosecutor. Nothing could be further from the truth. First of all, the so-called local attorney cannot always vigorously defend his client because he cannot upset the judge or prosecutor because he has to deal with them everyday. As a result, there is a limit to how far they can go in a person's defense. With our office, we are not limited in that manner.
Secondly, and most importantly, DUI is extremely unpopular. With the advent of 24-hour news, the Internet, Facebook, and Twitter, no judge or prosecutor is going to risk their position by dismissing cases for their friends, etc. The days of the “good ole boy” dismissals are long over. Cases are won and lost on their merits and the skill of the lawyers working on them. No judge wants to end up on the “O'Reilly Factor” on Fox News because he is dismissing DUI cases without justification.
Does the Law Office of Richard Lawson have a payment plan for legal fees?
As a result, for those who cannot pay their fee in full, we tell those prospective clients to make a financial proposal to us. Tell us what you can pay to get started on your case and how much you can pay monthly.
If we cannot accept your case, we will refer you to a lawyer in your price range. You are far better off with someone I recommend in your price range than randomly seeking the lowest bidder. We know the best Georgia DUI lawyers at every price point.
What happens if I decide to represent myself?
Nothing has to happen when you represent yourself. However, you will be held to the same standards as a practicing lawyer. That means, in part, that you will be responsible to know the rules of evidence, the filing deadlines, the courtroom procedures, and the laws pertaining to your case. You will not be afforded any special advice or treatment because you are unfamiliar with the court process or how to present your case.
In effect, you are at a tremendous disadvantage when representing yourself (acting pro se). The judge cannot help you present your case or help with evidentiary rules used to admit into evidence documents and photos. Also, your case will not be continued in order for you to prepare for trial. Remember, the prosecutor is a lawyer who is obligated to present the State's case. He is trained to do everything he can to get a conviction. A pro se defendant has little or no chance at winning a case. A pro se defendant also risks waiving potential defenses by missing deadlines that cannot be extended. By all means, if you are serious about your defense in a criminal case, hire a lawyer.
Is there an advantage to hiring a former DUI Prosecutor?
A former DUI prosecutor understands how a prosecutor investigates and handles a DUI case from accusation to trial. Understanding the motivation and objectives of DUI prosecutors can lead to more successful plea negotiations – a trained prosecutor is able to see the strengths and weaknesses of both the prosecution and defense.
In addition, most former prosecutors and public defenders have handled a great number of cases due to the volume of cases assigned in such jobs. As a result, most former prosecutors and former public defenders have a greater amount of experience than their peers with the same number of years of practice.
What happens if I cannot afford an attorney?
If you cannot afford to hire an attorney, the court can appoint a lawyer or public defender to represent you if you qualify under minimum income requirements. The judge may ask you to fill out a form detailing your financial resources, assets, income and debts. You may also need to provide the court with documentation such as pay stubs to prove your financial status.
The law allows the court to collect a non-refundable $50 application fee whether or not an attorney is appointed. In addition, any applicant must qualify financially. The income limits are tied to the federal poverty standards. As a result, many people are unqualified for a public defender, even though they still cannot afford to hire a lawyer. This “donut hole” leads to many working poor people to be stuck representing themselves. This is another injustice I see everyday.
Georgia judges, again, should be ashamed of themselves for allowing the working poor to be penalized for the fact that their work puts their limited incomes above the federal poverty level. Time and time again our judges prove to me that they are completely unconcerned with making sure they protect the rights of the weakest in our society. These are people with no political muscle or resources. It's disgusting to see a person who makes $20,000 a year be denied a lawyer when that person certainly cannot afford a lawyer. Any so-called judge that says to a person that they cannot appoint counsel because of the State guidelines forgets that they can declare those guidelines unconstitutional. I would like to see a judge step up and try to do the right thing for once.
Will a public defender or court-appointed attorney handle my ALS Hearing?
You are entitled under the United States Constitution to be represented by an attorney if you are accused of a crime and your liberty is somehow threatened such as with jail time. ALS hearings are civil hearings related only to your privilege to drive in Georgia.
A public defender or court-appointed attorney can only represent defendants in criminal matters and cannot handle related administrative matters like your ALS Hearing. You must hire a private DUI lawyer to represent you at your ALS Hearing.
Is there any special training that a Georgia DUI attorney receives before they can hold themselves out as an expert in DUI Law?
Any attorney who holds themselves out as an expert in DUI law should be trained in Standardized Field Sobriety Testing, in Intoxilyzer 5000 and Intoxilyzer 9000 issues, chemical testing procedures, accident reconstruction, and police procedure.
Also, a DUI expert should be fully versed in all recent case law and courtroom procedures. He should know the individual rules of each court in which he represents clients, and he should know the sentencing policies of each judge. An informed attorney can effectively evaluate DUI investigations and evidence and identify defenses to the charge of DUI in Georgia and the underlying offenses that caused you to have the police interaction in the first place.
Why can't my lawyer tell me if I have a good case when I have explained to him everything that happened?
An experienced DUI attorney knows that accurate advice can only be given after viewing all of the available evidence. An attorney must view the case from all angles and from each party's perspective. If a video was recorded, it will be the best and most objective evidence in the case.
After viewing the video and reading the officer's reports, the attorney will be able to examine how the officer administered the field sobriety tests, scored the tests, and whether the instructions and scoring was procedurally correct. The attorney will also be able to see how the interaction between the client and the officer proceeded from an objective source without the risk of personal bias that anyone has for their own situation.
Truthfully, this is an extremely touchy subject for most persons accused of DUI. Most people want to tell me what they remember, but no one can go through the trauma of an arrest and be expected to truly remember all the details thereof. In addition, most people tell me they have “passed the field sobriety tests”, however, the tests are not observations of ordinary human behavior. They are divided attention tests that are scored in a particular manner inconsistent with common sense. As a result, no untrained person can know if he or she has passed the tests because they are designed to be failed.
What does it mean when Mr. Lawson says that “his associate” will be my attorney? Is an associate a fully licensed and experienced lawyer?
All of Mr. Lawson's associates are fully licensed and experienced attorneys. All lawyers in this firm have focused their practices in DUI defense and are experts in their field. Any cases handled by an associate will be handled with the utmost professionalism and care.
In addition, Mr. Lawson works with his attorneys on every case. As the managing partner of the law firm, his main job is to advise the attorneys who work for him. He is also available to speak to any client who has hired his office. Every attorney at his office is certified in Standardized Field Sobriety testing. Every attorney has access to the same expert witnesses and investigators.
Why can't a Georgia DUI Lawyer answer questions about what will happen to my out-of-state drivers license, and do I need to contact a lawyer in my home state?
It is unethical for a Georgia Lawyer to give someone advice about what will happen to their out-of-state license in the event of a DUI Conviction in Georgia.
The laws in each state are different, and a Georgia lawyer likely knows less about an out of state license than the license holder himself. A Georgia attorney can only answer questions about how a conviction will affect your privileges to drive within this state.
You should contact a lawyer in your licensing state to know how your driving privileges may be affected by a Georgia DUI conviction. If you live and work in your licensing state, you may be eligible for a limited permit. The Georgia Department of Driver Services cannot issue a limited driving permit to an out of state licensee.
If convicted here, you must still reinstate your privilege to drive in Georgia regardless of what happens in your home state. Many people forget to reinstate here and remain forever suspended in the State of Georgia. This can result on a person being charged with driving on a suspended “license” while passing through Georgia, even though the person is fully licensed in their home state.
Why have I been referred to an immigration lawyer to discuss the consequences of my DUI case? I thought any lawyer would be qualified to give me legal advice?
Immigration law is complex and changes frequently. Most attorneys select an area of specialization and our firm specializes in DUI defense and does not provide immigration advice. An immigration lawyer will have a thorough understanding of the laws pertaining to your immigration status and how your charges may affect your status.
In addition, an immigration lawyer is qualified to represent you in immigration hearings, if necessary. An immigration lawyer is also qualified to help you get or maintain your legal status in the United States.
In all cases involving non-United States Citizens, our office requires our clients to employ an immigration lawyer. We then will consult with that attorney in an effort to coordinate our efforts with the immigration goals and needs. We cannot promise we can get an outcome that will satisfy the immigration attorney, however, we will certainly do our best to get the recommended outcome in the case.
Preparing for Court
If I finish my community service, alcohol counseling, DUI School, and pay my fine in full, will I have to still be on probation?
In almost all cases, we recommend that our clients complete the conditions of their sentence prior to attending court. That being said, it is important to only do things prior to court for which you will get credit. So, it's important to hire an attorney that knows what the judge assigned to your case will accept. There are even some courts that will not accept anything done prior to attending court; however that is rare. There are some community service organizations that have lost credibility as well. Some judges also require that community service work must be done in the city and or county of the arrest.
Many people ask me if by doing conditions of the sentence that it is somehow an admission of guilt. It is not. Your attorney will only use what you have done if it's an advantage to you and your case. In a close case, the fact that you have taken the matter seriously can actually make a significant difference to a prosecutor or judge. Also, since no attorney can guarantee an outcome, the fact that you have completed the conditions of your sentence will make compliance with probation, after a plea or finding of guilt, far easier.
Finally, in cases that are reduced to reckless driving, commonly you will be required to complete everything normally associated with a plea of guilty to DUI, except jail time and loss of your driver's license.
I want to get my case completed prior to the court date. Is that possible?
It is possible to get an earlier court date, but expediency does not usually equal an affective handling of your case. It takes the State several weeks, or months, to comply with requests for discovery (the police reports and video). It would be a bad practice to go to court without reviewing the evidence.
In addition, the ALS process (the 10-day letter and hearing) can take up to 90 days to resolve. It would also be a bad practice to go to court without first resolving your license issues. In fact, in most cases you will not qualify for a permit to drive if you go to court prior to resolving your ALS issues. In addition, the ALS process (the 10-day letter and hearing) can take up to 90 days to resolve. It would also be a bad practice to go to court without first resolving your license issues. In fact, in most cases you will not qualify for a permit to drive if you go to court prior to resolving your ALS issues. Going to court before a case is ready is usually a bad idea. However, for persons incarcerated without bond, as with persons with probation violations or felonies that do not qualify for bond, or people who have issues in other jurisdictions that prevent them from bonding out, it may be appropriate to move the case forward quickly and without full information. If a person is incarcerated, they may want to plead guilty quickly to close the case in order to get out of jail more quickly. Or, for people that are not guilty, they may want to file a motion for a speedy trial to get a trial as soon as possible, even without their attorney being completely ready. No one should languish in jail who is innocent of a crime.
Why can't I get my own police report or the video of my arrest?
In a reasonable society the State would not play hide the ball with the evidence. However, in Georgia we make getting the evidence difficult for no reason.
In some jurisdictions, you can simply ask for the reports and videos and you are given them quickly and at little or no cost. In other jurisdictions, you have to file a formal “open records request.” In that event, there will be a cost associated with the production of evidence. In addition, some police agencies will deny the request, citing the exception for pending cases. Further, some will only provide the cover page, while leaving out the actual narrative report. As a result, your Atlanta DUI lawyer may have to request the evidence through the filing of criminal discovery motions.
For misdemeanors, the State must supply any statements given by your client, any scientific reports, and any exculpatory evidence (Brady material). Note that nowhere in our misdemeanor discovery laws does it say you are entitled to the actual police report. However, most of the time we are able to get the reports and videos through the discovery process.
For felony DUI cases, you are entitled to all of the evidence if you opt-in under the felony discovery act. However, if you opt-in you have a reciprocal discovery obligation to provide the State with all defense evidence. It is important to consider whether you want the district attorney to have all of your evidence before agreeing to full reciprocal discovery.
Why is it an advantage to have a separate investigator for my case? Why can't my Georgia DUI attorney investigate the case himself?
The main advantage of having a former police officer look at a case is his perspective based on real world experience.
There are things he will notice that a lawyer simply would not notice. In addition, our investigator is a former Standardized Field Sobriety Testing instructor. As a result, he can easily see if a police officer has performed the evaluations in accordance with the proper rules and procedures and this can make a huge difference in the outcome of someone's case.
In addition, a separate DUI investigator may be able to obtain better results due to personal connections and years of experience in the field. Investigators may be former police officers with greater access to other police officers and know direct ways to procure key evidence.
The information on my ticket is incorrect. Is that a defense to my Georgia DUI case?
As long as the ticket sufficiently identifies you and what happened, most minor errors are not likely a strong defense to a DUI charge.
Most of these errors can be amended later or a formal accusation can be drafted. The prosecutor can also amend the citation or charge someone with a completely different offense. In Georgia, the prosecutor assigned to a case makes the final charging decision. The prosecutor can even add charges that were not even originally contemplated by the arresting officer.
However, any errors on the tickets may show that the arresting officer may have been careless or may tend to show that the officer may have also made other mistakes during the course of the arrest and may show a lack of credibility. Your Georgia Traffic Ticket Attorney will help you exploit any errors on your ticket.
Why can't I get a copy of my full police report and video myself, and why can't my lawyer get my video in some jurisdictions? Don't I have I have a right to see all the evidence in my case?
Under the Georgia Open Records Act, law enforcement reports and records can be withheld during a pending investigation of criminal prosecution. The police are only required to turn over the initial report without the supplemental reports that usually contain a narrative of the events.
As a result, in many jurisdictions, the accused cannot simply get a copy of what would be perceived as the full police report. A DUI Defense Attorney can file for “discovery,” which then mandates that the prosecutor must turn over the evidence and reports.
You have a constitutional right to be informed of the charges and the evidence to be used against you at trial. You are also entitled to a copy of any statement by the accused and all exculpatory evidence (Brady material). The prosecutor then must respond to the request and provide access to all relevant evidence including the report and video. Some jurisdictions will not provide copies of these materials but instead only allow access to the evidence to be viewed at the prosecutor's office.
Other more reasonable jurisdictions do not try to hide the evidence nor make it difficult to obtain. Some even have open file polices where defense attorney can simply come by and photocopy their file. Prosecutors with open file polices should be the norm. Criminal cases should be about fairness and transparency.
How long generally will it take my Atlanta DUI lawyer to get all evidence in my case, and how long is the process, generally, in the Atlanta Municipal Court?
Atlanta Police Department incident reports can be obtained at APDs Central Records Unit located on Donald Lee Hollowell Parkway three to five business days after the arrest or through filing a discovery request with the court. The Solicitor Generals' office generally responds to discovery requests within 30 to 60 days. However, it can take longer to get an appointment to view the arrest video, and unfortunately they will not copy it for the defense. This is why you need to hire an Atlanta DUI Lawyer as soon as possible.
Department of Public Safety incident reports can be received through an open records request to the Department. The report is generally received within three to five business days. There is no cost for the reports and you do not need to get prosecutor approval. However the GSP will not provide a copy of the video without a court order or signed letter from the prosecutor (who will not sign it).
If a video is available it must be requested through the solicitor's office after filing a discovery request. The prosecutor's investigator must request the video from the arresting agency and will contact the defendant's attorney once the video is received. This may take between 30 and 60 days. Again, the video then must be viewed in their office. It's extremely inconvenient and also makes it far more difficult to share the evidence with our clients.
Can the police get the results of my blood or urine test from the hospital?
The police can obtain the results of a blood or urine test from the hospital through a valid search warrant. The warrant must specify the circumstances that caused the officer to suspect you of driving under the influence of alcohol or drugs and that evidence of the crime would be found in the requested records.
The results of an independent blood or urine test, however, are not discoverable by the prosecutor upon a notice to produce. However, in a felony case the defense has a duty to provide the state “reciprocal discovery.” That means that if the defense requests the evidence from the State it must provide their evidence (and scientific reports) to the state as well. As a result, you must be careful before electing to get your own chemical test because the State may use it against you.
All of this begs the question about a person's Federal HIPAA Rights. There are federal laws guarding the privacy rights of people. Of course, the State of Georgia simply ignores those rights and our judiciary ignores their duty to protect our rights. Once again our judiciary embarrasses itself by failing to protect the rights of citizens accused because of the “DUI Exception” to the Constitution. Our judges act as second prosecutors more times than not.
How often do DUI cases have to be fought in court and what defenses are commonly used in most DUIs?
Less than 10% of all criminal cases go to trial. Many cases can be resolved through a plea negotiation with the prosecutor or after a motion hearing determines certain issues. That is why it's extremely important to hire an attorney as soon as possible. All motions must be fined at or before the initial arraignment.
A successful defense to DUI is often a challenge of the officer's initial stop of the vehicle. Police can only conduct a brief detention based on a particularized and objective basis of criminal activity. This is called reasonable articulable suspicion. An officer's decision to stop your vehicle cannot be based only on a “hunch.” If it is determined that the stop was pretextual or otherwise illegal, the subsequent arrest for DUI will be illegal.
To arrest, the officer must also have probable cause to believe that you were under the influence of alcohol or drugs to the extent that you were less safe to drive. Probable cause can be supported by the officer's observations of intoxication such as the smell of alcohol on your breath, open containers, slurred speech, bloodshot eyes, and your performance on field sobriety evaluations. If the evidence only shows that you were intoxicated but not to the extent of impairment, probable cause to arrest may not exist. If no probable cause existed to legally arrest you, the arrest itself may be suppressed along with any chemical tests you submitted to.
If the officer violates your implied consent rights, then the chemical test (breath, blood, or urine) may be suppressed. That means the results cannot be used in court.
In addition, results of a breath test may be challenged under several circumstances including if the testing device did not receive proper maintenance according to regulations or if the tester was not qualified to administer the test. A blood test can be challenged because of the manner of testing, faulty preservation and handling of the sample, possibility of human error, false high readings from use of blood plasma as opposed to whole blood, and maintenance of the testing equipment.
Why does it take so long to get my court date in Fulton County State Court, and can anything be done to speed up the process?
Fulton County has a high volume caseload and because of this, it may take several months to a year for your case to be accused in the State Court of Fulton County. You and your attorney do not have any control over when your case is accused in the State Court or when a court date may be scheduled.
However, delay can be advantageous to the defense because during the delay evidence can be lost, witnesses can move or lose contact with the court, the arresting officer may be fired or transfer to a new agency out-of-state or otherwise become unable to testify against you. Your Fulton County DUI Lawyer knows how to use any delay to your advantage.
A long delay can also be disadvantageous. Many people suffer stress that their cases are still pending. In addition, people may need to know the outcome of their case before they can move on to other business or personal opportunities. In addition the delay may prevent the accused from moving to another state or taking a new job.
If forced to move, travel back to Georgia can become both burdensome and expensive. Finally, new laws could also go into effect during the delay that may impact your case or increase the penalties upon conviction. Technically, new punishments do not go into affect retroactively. However, new laws can set a pattern of how cases are handled going forward, even in situations where the law does not technically apply. A Fulton County DUI Attorney from our office can help limit the stress and interuption that the DUI may cause in your life.
What is the standard of proof in a Georgia criminal case?
In Georgia, the prosecution must prove guilt beyond a reasonable doubt. This is the highest burden of proof under the law.
Reasonable doubt is the doubt of a fair minded, impartial juror honestly seeking the truth. It is not an arbitrary doubt but a doubt for which you can place a reason. If a juror's minds are unsettled or unsatisfied, that is the doubt of the law, and the juror must vote for the person to be found not guilty. It does not, however, mean doubt to a mathematical certainty.
Beyond a reasonable doubt means that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty. Every person comes to court in Georgia presumed innocent and that presumption remains up and until the State, through the presentation of proper evidence, convinces the trier of fact that they are guilty beyond all reasonable doubt.
Can I get a copy of my criminal history?
Georgia criminal history records can be obtained in person from most Sheriff's Offices and Police Departments. Please contact a Georgia law enforcement agency about specific requirements for obtaining a copy of your Georgia criminal history record.
You can request your criminal history record from any law enforcement agency that provides these records, regardless of the city or county where you reside. Due to concerns regarding identity theft when providing personal identification data such as your social security number, this request should be made in person through a law enforcement agency and not through an online source.
Most online “sources” for criminal histories are identity theft schemes. Never give your name, date or birth, and social security number to an unverified source.
Can I get my MVR online?
You can receive your driving history (MVR) online at the Georgia Department of Driver Services website: www.dds.ga.gov.
Only Georgia DDS can provide an official MVR that is accepted by courts, insurance companies, and schools. You can view or download a non-certified MVR immediately from the website. If you request a certified MVR, it will be mailed to your within 7 days of your request.
As with criminal histories, only go to official sources for a driver's history. For Georgia, it's the Department of Drivers Services. For out of state histories, you should go directly to the agency that licenses drivers. Never give your name, date or birth, and social security number to unverified sources. You are at great risk for identity theft when using unverified sources.
Do I have to be drunk to get a Georgia DUI?
Driving under the influence has never meant, “drunk driving.” Many people call my office and say they were not drunk and are surprised with their arrest. The fact is, DUI occurs when a person is under the influence or alcohol or drugs to the extent that it makes them less safe to drive. Less safe means that a person is not as safe as if they had not consumed alcohol or drugs. So, as anyone should be aware, the “less safe” standard is in fact a very low standard of impairment. A person does not have to be .08 or more on a breath test. It's such a low standard that many interpret it to be close to a zero tolerance law.
Personally, I would not drive after consuming any alcohol. With the less safe standard being so low, getting a DUI in Georgia can happen even after 1-2 drinks.
Is police mistreatment a defense to DUI?
Legally, police mistreatment is not a defense to DUI.
A DUI case will be decided on its merits and only relevant evidence will be considered. Evidence that the officer locked the handcuffs too tightly or was rude when speaking to you will likely be irrelevant as to whether you are guilty of DUI. Egregious treatment, however, would likely result in the officer being suspended or fired which could be lead to the officer's being unavailable to testify or add credibility to your defense. For practical purposes, severe mistreatment can be a defense because it limits the credibility of the police officer. Most prosecutors do not want to use a witness that has misbehaved.
Are there procedural defenses to a Georgia DUI?
There are many procedural defenses to DUI charges in Georgia.
Procedural defenses concern the procedures that are used to investigate the offense Procedural defenses include issues involving search and seizure, whether the arrest was supported by probable cause, or whether or not your rights were violated during any step of the proceedings. These are issues that can lead to suppression of evidence or even dismissal depending on the nature of the challenge.
Most DUI investigations and arrests begin with a routine traffic stop. In some cases, a successful defense to the traffic violation itself can result in the collapse of the probable cause supporting the stop of your vehicle. Always remember that a police officer must have a legitimate reason to pull over a vehicle.
In Georgia, law enforcement officers running roadblocks are required to follow certain protocol. The decision to implement and procedures for a roadblock must be made by supervisory personnel, rather than officers in the field, there must be predetermined procedures in place to operate the roadblock and it must have a legitimate purpose, all passing vehicles must be stopped meaning the officers do not have discretion to stop certain vehicles and not others, the delay to motorist must be minimal and the roadblock itself must be well identified as a police checkpoint, and any prolonged detention of a vehicle must be based upon specific, articulable facts observed by the officer. If proper protocol was not followed in initiating and executing the roadblock, the entire stop is illegal.
Police officers must have probable cause to arrest for DUI which means that they must have a reasonable belief that you were a less safe driver due to impairment by alcohol or drugs. Probable cause must be supported by the officer's observations and interaction with you. It is not enough that the officer smelled an odor of alcohol even if you admitted to drinking; the officer needs more in order to support a DUI arrest. Challenging the officer's probable cause to arrest may lead to a dismissal if successful.
In many DUI cases, the strongest evidence against you may be your performance on field sobriety tests. If the field sobriety tests are successfully challenged and a judge rules that your performance on the tests is inadmissible and cannot be used as evidence against you at trial, the prosecutor's case may be significantly weakened and can lead to a favorable plea negotiation or dismissal.
The arresting officer is required to request a breath or blood test by reading an implied consent notice at the time of arrest. If the officer misleads you in any way or induces you to submit to testing, does not read the notice within the proper amount of time, or otherwise does not follow proper protocol in informing you of your implied consent rights, the test results may be suppressed and inadmissible as evidence against you, which can significantly impact the strength of your case.
The test results may be suppressed in many circumstances including if the device did not receive proper inspections and maintenance, if the test results were outside of perimeters, if blood was not drawn by qualified personnel, or if you requested but were not given an independent test. These examples are a small sample of the potential procedural defenses in a DUI case. Atlanta DUI Lawyers from our office will review all of the evidence and look for the best potential defenses.
What are dram shop laws, and is this a defense in my case?
Dram Shop laws create a civil cause of action against a bar or restaurant that continues to serve a person alcohol who is impaired. If that person is involved in an accident that causes death or injury to another person, it creates a cause of action against the serving establishment.
These laws do not provide any affirmative defense to the person who commits the crime of DUI and any related offense. The fact that a bar served a person who was intoxicated does not limit in any way that person's criminal responsibility for their own actions.
Can I see any counselor or does the Court and the Department of Driver Services require a particular certification that a counselor must have before providing court-ordered treatment?
Your counselor must be certified by the Department of Behavioral Health and Development Disabilities and must be currently listed as a Clinical Evaluator or treatment provider on the registry. You must select a Clinical Evaluator from the DBHDD approved list.
That being said, you should never forgo the real counseling you need to better your life and conquer any personal problems you may have. In addition, Alcoholics Anonymous and other similar groups, are an excellent supplement to group or individual counseling. The most important thing is to figure out the best way to change your behavior after a DUI arrest. That is the only way to avoid future problems. I believe in a “whatever it takes” approach.
Do judges and prosecutors actually care about justice or are their decisions motivated by politics and public opinion?
This can be a difficult question to answer. Some judges and prosecutors do value justice, but most decisions are motivated by many different factors, including: electoral politics, public opinion, personal beliefs, prejudice, political cowardice, intellectual dishonestly, and past experiences. DUI is a heavily stigmatized offense and no judge or prosecutor wants to be viewed as soft on DUI. It's simply unpopular. In addition, there are lobbying groups such as Mothers Against Drunk Driving that pressure judges to be tough on DUI offenders.
Furthermore many Georgia judges and prosecutors may have to answer to a city council. Most municipal court judges are appointed and paid by the same city counsels that appoint and pay the prosecutors and the police officers. In effect, they answer directly to the constituents that elect the city councils. This creates a situation where many municipal court judges and prosecutors will not dismiss a DUI for political reasons.
In spite of politics, there are also judges who hand out harsh sentences because they truly believe that it will influence the person not to re-offend. And still others who hand out lighter sentences because in their view, a second chance has more influence than punishment.
The best judges are fair to the accused and honest in their evaluation of the evidence and the applicable law. The best judges also look at each situation individually and with compassion. They avoid mechanical sentencing policies and look at each case one at a time. They avoid politics and try to do the right thing.
The Court Process
Why did I get more than one DUI ticket?
In Georgia, Driving Under the Influence laws cover several DUI offenses, so you may be charged with multiple counts of DUI; most commonly DUI “less safe” and DUI “per se.”
If you refused to submit to State-administered chemical testing or test results showed a blood alcohol concentration (BAC) below the legal limit, you may be charged with DUI “less safe.” "Less Safe" is defined as being not as safe to drive as if you had consumed no alcohol at all. DUI less safe requires a showing that you were under the influence of alcohol or drugs to the extent that you were less safe to drive.
DUI “per se” is charged when there is a State-administered test result showing a blood alcohol concentration at or above the legal limit. If you were charged with DUI per se, you may have also been charged with DUI less safe. These offenses are commonly charged together in the event a motion hearing leads to the test results being suppressed (prevented from being shown) prior to trial. If the test results are suppressed, there may be no other evidence showing your BAC was at or above the legal limit. However, the prosecution may still have sufficient evidence to proceed on a DUI less safe charge. There are also separate DUI charges for DUI alcohol, DUI drugs, DUI toxic vapors, and DUI multiple substances. Ultimately, if you are charged with alternative counts of DUI, you can only be sentenced for one count of DUI from a DUI arrest. The alternative counts of DUI give the State different ways of prosecuting a person for the same DUI. It, however, is only one DUI.
Are DUIs from other states counted against me?
DUI convictions from other states can be used against you for enhancement in punishment. Under Georgia law, there are increased sentencing requirements for subsequent DUI convictions within certain periods such as 5 or 10 years.
The length of time between prior DUI convictions is calculated by the dates of arrest. Mandatory jail sentences, more community service hours, increased fine amounts, or DUI court may be required if you have prior DUI convictions in other states.
For the purposes of driving privileges, currently only prior convictions while having a Georgia license will result in increased driver's license suspension periods. Those prior convictions can be in Georgia or when a Georgia driver is arrested and convicted for DUI in another state.
Can I plead Nolo?
A written petition can be filed asking for a nolo contendere plea to be accepted in your case. Acceptance is at the sole discretion of the judge. A nolo contendere plea will not be accepted if your BAC was more than 0.15, you are under the age of 21, or have been convicted of or entered a plea to DUI within the past 5 years. A nolo contendere plea will not prevent a license suspension.
If you were involved in an accident, a nolo contendere plea could be beneficial if you were the “at fault” driver, because it does not require you to admit guilt. Any admission of guilt in a criminal case can be used against you in a civil matter. Though any sworn testimony at the time of sentencing may still be used against you.
However, since 1997 a Nolo Contendre plea does not prevent the suspension of your driver's license. In addition, the Department of Driver Services treats a no contest plea the same as a conviction for driver's license purposes. As a result, unless the driver is facing civil consequences, a nolo plea had little or no benefit.
Finally, some judges will not accept a nolo plea to DUI, and it is completely within the judge's discretion to accept a no contest plea. There is no appeal if a judge will not accept a defendant's plea of no contest.
Do I have to attend my court date?
Many courts allow you to waive your presence at your arraignment date if a waiver is filed in a timely manner with the court prior to your first court date. However, you will likely be required to attend court dates scheduled after arraignment. In the City of Atlanta Municipal Court, the appearance of the defendant can be waived up and until the final plea date once a defense attorney has filed an entry of appearance in the case. Your Atlanta DUI Attorney must follow the case management plan set out by judge assigned to handle the DUI cases in Atlanta.
If you live out-of-state or if attending court would be unduly burdensome, at the judge's discretion you may be allowed to resolve your case through a plea “in absentia.” A plea in absentia is a document that sets forth the charges against you, the rights you must give up by entering a plea, and the terms of the plea agreement. Your attorney would then present the plea in absentia (in your absence) as if you were there yourself.
Finally, if you live out-of-state and want to have a bench trial or a jury trial, the judge may specially set your case for a particular trial date. A specially set trial allows an out-of-state defendant more certainty as to their court date, thereby limiting the number of times they have to come to Georgia. Like a plea or nolo, specially setting a case is completely within the judge's discretion.
If the information on my ticket is incorrect can they still prosecute the case against me?
Your case can still be prosecuted if information on your ticket is incorrect. The prosecutor is able to amend the citation to correct the information or can file a superseding accusation to properly accuse you of the offense with the correct information.
If there are many inaccuracies or significant variances on your citations or in the incident report, it may show the officer was not careful, observant or may have not adequately followed procedures, which can be used to discredit the officer and his testimony.
So, misinformation is not in and of itself a defense but can be an indication that the arresting officer is poorly trained or unqualified to make a good DUI case. An experienced Atlanta DUI Lawyer can use this information to aid in his negotiation with the prosecution.
Can I pay my other tickets before going to court on my DUI?
You should not attempt to pay any other tickets you may have received at the time of your DUI arrest. If you pay a ticket, you are admitting guilt for that offense. All offenses that you were charged with should be tried together as one case because you may have defenses to a charge that could affect your entire case.
For example, if there are defenses to the charge that initiated the stop, such as failure to maintain lane or failing to signal, it may not have been a valid stop which would make the DUI arrest invalid.
For practical purposes, most courts will not allow the case to be split into tickets that can be paid and the misdemeanor DUI charge.
Can I speak to the judge and explain my case?
Because the judge will hear the case if it goes to trial and must remain neutral, it is not appropriate to discuss the details of your case with the judge. During sentencing you will have the opportunity to speak to the judge and offer any explanation you may have. It is in your best interest to discuss anything you may wish to say to the judge with your attorney prior to appearing in court.
The judge will only speak to parties or the attorneys of the parties with both sides present and in open court. This is the foundation of a fair and impartial court system.
When an attorney represents a person, the attorney will speak in open court for the represented party. The prosecutor is the attorney that represents the state in open court.
Can I speak to the prosecutor and explain my case or my situation?
If you are represented by an attorney, the prosecutor cannot speak to you about your case without your attorney also being present. If you are unrepresented, you will have the opportunity to discuss your case with the prosecutor and negotiate a plea agreement. You should be cautious because everything you say to a prosecutor can be used as evidence against you and can ultimately harm your case.
Remember if you represent yourself you will be held to the same standards and rules of evidence as if you are an attorney.
Can I get an earlier court date?
There are some courts that may be accommodating and schedule an earlier court date, but most scheduling is at the sole discretion of the court.
However, an earlier court date may make it difficult to receive all of the evidence in the case prior to your first court appearance. An earlier court date may also be disadvantageous if your administrative license suspension has not yet been resolved.
For example, if you refused to submit to State-administered testing, you will not be eligible for a limited driving permit if entering a plea to DUI until the pending administrative suspension is formally withdrawn.
The general rule I follow is that expediency can lead to a bad outcome in the case. It is typically best to be patient and allow the case to progress naturally.
You have a right to a speedy trial, and in Georgia that means being tried within two terms of court. Each county sets its own terms of court. You also have a right to a constitutional speedy trial however, constitutional speedy trial rights usually are violated when the State takes an exceptionally long time to prosecute the case and as a result it harmed the ability for the defendant to put up a defense (such as when witnesses die or leave the jurisdiction of the court or then evidence is lost).
How many continuances can I get?
Continuances are at the sole discretion of the court and not all courts grant continuances.
If you experience a medical emergency and can provide proper documentation, you may be entitled to a continuance. Otherwise, continuances will likely only be granted for legitimate reasons, but only at the judge's discretion. If continuances have previously been granted in the case, the judge will likely require you to attend court absent a compelling argument for the continuance.
The general rule is that both sides of the litigation can get one continuance without much trouble. Additional continuances must be for good cause.
Can my trial be scheduled for a particular day?
Most judges schedule trial weeks where open cases are placed on-call and are called in as they are reached during that week. You will be given advance notice of the trial week but may not be given much notice of the day you are required to appear. In some courts you may be given as little as 3 hours' notice to appear for trial. Some courts require you to call a hotline after a specific time every day to hear the list of cases that are required to appear in court for trial the next morning.
Some trials may be specially set for a specific trial date if there are valid reasons to do so, such as witness availability or other scheduling demands. If you live out-of-state you have a greater chance of getting a specially set trial date because of the time needed to travel to court.
For most people, trial calendars cause a great burden because there is no way of knowing if and when a case will be reached. Sometimes defendants are forced to attend multiple calendar call dates before their case is finally reached.
Do I have a right to a jury trial in Georgia DUI cases?
You have a Constitutional right to a jury trial in Georgia DUI cases.
Municipal courts do not have jurisdiction to hold jury trials in Georgia, so if your case is initiated in a municipal court, you have the right to request a jury trial in the state or superior court of that county. The municipal court judge cannot deny your request to transfer the case.
Once your case is transferred to the state or superior court, your case will essentially start over and you will be arraigned on the charges in that court and you will be given the opportunity to negotiate a plea agreement before proceeding with trial. The decision to have a jury trial, a bench trial, or enter into a plea bargain should not be made until you have consulted with the best Georgia DUI lawyers.
Should I do my community service, DUI School, and counseling before court?
Completing any conditions of probation or attending AA meetings or counseling sessions prior to appearing in court show that you have taken responsibility for the charge and that you are taking steps to ensure you do not repeat the offense. This will be considered by the judge and may influence him or her to make certain concessions during sentencing. If your probation is allowed to be non-reporting or terminate upon completion of the conditions, then you may avoid reporting to probation at all if everything has already been completed prior to your court date.
It is important to check with your attorney before doing anything prior to court because some courts will not take community service or counseling from providers they do not pre-approve. That is why you need Georgia DUI attorneys that know the jurisdiction and court system where you are charged.
Should I hire an expert witness to assist with my case?
An expert witness can be essential to your defense of a DUI charge in many circumstances.
An expert witness can be used to attack the officer's administration and scoring of the field sobriety evaluations. Field sobriety tests are standardized and proper procedures must be followed each time the tests are given and there are specific guidelines the officer must follow in order to score your performance on the tests. If there are any variations in the procedures followed by the officer from how the tests were designed to be administered and scored, an expert witness can be used to explain these variances to the jury and explain how they may have affected your performance or if the errors were egregious, how the tests may not be valid evidence of impairment.
An expert witness can also be used to point out and explain limitations of testing equipment and the device's margin of error, which calls into question the accuracy of your results. There may also be specific circumstances in your case that may need to be explained such as a medical condition that may have affected you the night of your arrest and raise doubt that your impairment was due to alcohol or were symptoms of your condition.
Hiring an expert witness to challenge the validity of test results may lead to the results being suppressed and inadmissible at trial, which can also lead to the prosecutor reopening plea negotiations or even dismissing the charges. Many Atlanta DUI attorneys utilize experts to help gather and review the evidence for their clients. It can be very helpful to have someone who is objective review the evidence. Attorneys are advocates and as a result cannot be objective.
Will the prosecutor take into consideration my individual circumstances and how the DUI will affect my life?
Generally, the answer is no. Most prosecutors will not consider your personal circumstances in relation to how a DUI conviction may affect your life.
Prosecutors typically only consider issues relevant to the circumstances of the arrest. In certain cases with mitigating factors such as a low BAC or no unsafe driving, the prosecutor may consider your personal circumstances and be open to discussing a possible reduction of the charge or alternative sentencing.
The reason that life circumstances or evidence of good character is not persuasive is because DUI is not a crime of moral turpitude. No one is saying you are a bad person because you received a DUI. As a result, character evidence is not generally allowed.
Should I get character references and letters of reference to assist in my case?
No, DUI is not a crime of moral turpitude and so character references and letters of reference are not needed and will not assist in your case since the nature of your character is not in issue.
This does not mean that your attorney is uninterested in your character or life circumstances. It simply means that because no one is saying you have bad character as a result of a DUI arrest, you cannot use good character as a defense.
Should I be concerned that I have not received my court date?
Your court date is typically listed on your DUI citation or your bond paperwork. If your court date was listed as “TBN” or “to be notified” then you will receive your court date by mail. It may take between 4 to 6 weeks or even longer before a court date is scheduled.
If your case is transferred or bound over to a state court from a municipal court, it may take a few months before you receive your next court notice. It may take longer than 12 months before a court date is scheduled for cases referred to Fulton County State Court.
The notice will be mailed to the address on file with the Clerk of Court which is generally the address listed on your citation. You are obligated to keep the Clerk of Court, prosecutor, and your attorney informed of any change of address. You must contact the court directly to change your address to ensure that you receive court notices. You cannot rely on only filling out a change of address form at the US Post Office and not formally changing your address with the court. With forwarded mail there is no estimated delivery, and mail is only forwarded for a limited time. As a result, court notices may not be received in time or at all.
If you plan on moving subsequent to your DUI arrest, contact our office for specific instructions related to the court system in which you are charged.
Should we transfer the case to State or Superior Court?
The decision to bind-over a case to a higher court does not have a universal answer. Any attorney that opines that all cases should be transferred to superior or state court, without first trying to resolve the case in municipal or probate court, does not practice in the lower courts regularly.
It is always best to get the discovery (incident report and video) in the lower court and make an attempt to resolve the case therein. If you are not satisfied with a proposed outcome in the lower court, you will not have waived your right to send the case to the higher court for a trial or further negotiations.
So, starting the case in the lower court actually gives you two bites at the apple; two opportunities to get a favorable outcome. Only a lazy attorney would forgo the change to resolve a case in the lower court.
Ultimately, if you want a jury trial, the case will have to be sent to state or superior court. However, few clients should have a trial as the only option. There are many favorable outcomes short of trial that should first be attempted. If unsuccessful, a client always maintains the right to litigate their case through trial and appeal. Finally, only a client (not his lawyer) can waive his/her right to trial. There is nothing an attorney can do to waive that right on behalf of his client without the client's consent.
I live in another state. Will the prosecutor know if I have had prior DUIs outside of Georgia?
When the prosecutor runs your criminal history on the Georgia Crime Information Computer (GCIC.), they will also get a Georgia driver's history. If a person has prior offenses it will be notated as “multistate offender.”
If the prosecutor notices the code referencing that you are a multistate offender he/she will then run the National Crime Information Computer (NCIC.). Presumably, all criminal cases and their dispositions will be seen on the NCIC.
That being said, some prosecutors make mistakes in the way they view your criminal history. If they don't see the code referring that you are a multistate offender, they may miss prior offenses. As your lawyer, it is not my role to help the State prosecute the case against you. I will not correct a mistake in your favor.
The only problem that can arise when a person has prior offenses that are not reflected on their record is when a judge specifically asks that person under oath during their plea. You never want to perjure yourself when being asked a specific question by a judge. If the judge asks you about prior offenses not reflected on the criminal history, you would be required to answer honestly or stand mute. Standing mute, of course, is tantamount to an admission. So, this will create a difficult ethical situation for your Georgia DUI lawyer and you, the accused.
What will happen if I miss court?
It depends on what court you missed. Some courts will only require that your attorney file a notice of appearance notifying that you now have counsel; after which the warrant would be lifted. Others would require a formal motion to withdraw the bench warrant. Some even would require you to be taken into custody and bond out again.
The answer is court and judge dependent. Each judge and court system have their own polices and procedures. For example, the City of Atlanta has a specific procedure and an actual “failure to appear court” to handle all of the missed appearances in the Atlanta Municipal Court. Atlanta DUI Lawyers show up at 7:30 a.m. and ask for the file to be sent to the failure to appear court, and the accused must be present. Upon paying a small bench warrant fee, the warrant is lifted, and the case is sent back to the trial judge originally assigned to it.
After a warrant is lifted, the case will resume where it was left off. If the case was ready for a trial, then you will have to be ready for trial. If the case is at the arraignment stage, you would then go in and enter your initial plea.
If I was allegedly under the influence of alcohol or drugs, am I automatically guilty of vehicular homicide or serious injury by vehicle?
No. The assumption of guilt due to clear impairment is one of the most misunderstood concepts insofar as serious injury by vehicle and vehicular homicide cases. The statures are clear on the subject, yet far too many people fail to understand the law.
O.C.G.A 40-6-393 states in part, that [a]ny person who, without malice aforethought, causes the death of another person …. commits the offense of homicide by vehicle in the first degree [.]
The key word in the entire stature is “causes.” As a result, you can be impaired and be in an accident and not be responsible for the death of the other person. In that example, your impairment would make you DUI, but not responsible for the death or injury.
If the other driver was responsible or significantly contributed to his own injury or death, you did not cause it.
That is why I employ an Accident Reconstructionist in all death or serious injury cases. His role is to help determine the cause of the accident and if the other driver was responsible or partially responsible for his own death or injury. In addition, his role is to help determine if the deceased could have avoided the accident had they properly driven their vehicle defensively and alertly. Finally, his role is to determine if the actual roadway itself could have contributed to the accident through incorrect engineering of the roadway. One way in which this is determined is when a particular road has a greater number of accidents per thousand miles driven than other roadways.
Does the victim in an accident have the ability to drop the charges against me?
No. Once a person is charged with a crime, only the prosecuting attorney can dismiss or reduce a charge. Even the arresting police officer cannot drop a charge. The prosecutor has 100% prosecutorial discretion to continue a prosecution. The prosecutor also has complete discretion to reduce or change a criminal charge.
The “victim” in a crime is merely a witness as to what they can testify. However, for practical purposes most prosecutors are very interested in how a victim feels about a prosecution. No prosecutor wants to offend the legitimate victim of a crime.
Is DUI in Georgia a felony?
In Georgia, DUI is generally a misdemeanor offense.
A third DUI conviction within 10 years in Georgia is a high and aggravated misdemeanor. A fourth DUI within 10 years is a felony offense in Georgia, but only convictions on or after July 1, 2008, are considered for this purpose. Additionally, DUI Serious Injury By Vehicle, Habitual Violator, and DUI Vehicular Homicide, and Feticide are all felony offenses.
Out-of-state DUI convictions count towards felony status, and Georgia generally does not recognize “lesser offenses of DUI” that exist in many states. As a result, if a case is reduced to a less serious DUI-type offense, such as Operating While Impaired (OWI), it will still be considered a DUI in Georgia for purposes of determining felony status and sentence enhancement generally.
What is DUI “Less Safe?”
DUI Less Safe means that a driver can be convicted of DUI even if the driver's BAC is less than 0.08 grams if the driver is under the influence of alcohol or drugs to the extent that they are less safe to drive.
The DUI laws in Georgia criminalize driving under the influence of alcohol, drugs, whether illegal, prescription, or over-the-counter, and toxic vapors to the extent that it is less safe for the person to do so. The prosecutor may or may not have a chemical sobriety test result to support this charge. An officer's observations during the DUI investigation can be used to support the determination that the driver was impaired by alcohol.
During the investigation, the officer will look for clues such as the driver's admission of drinking, slurred speech, bloodshot eyes, fumbling, repeating questions or comments, the odor of alcohol on the person's breath, and providing incorrect or inconsistent answers. The officer needs probable cause the person was impaired and needs more evidence than the person had consumed alcohol.
A conviction for DUI Less Safe can be based entirely on circumstantial evidence of impairment. This is how many DUI arrests at roadblocks have led to convictions, even with no evidence of less safe driving. Common evidence of impairment is the performance of standardized field sobriety tests.
Also, in cases where a driver is pulled over for a traffic violation, the manner of driving or inability to drive safely can be used as evidence that a person is under the influence to the extent that they were less safe to drive.
What is an arraignment and do I need a lawyer before my initial court date?
Your first court appearance will be your arraignment date.
At arraignment you will be formally accused of the charges against you and expected to enter a plea to those charges. If you plead guilty, you will be sentenced. If you plead not guilty you may negotiate a plea with the prosecutor or proceed to trial. Having a qualified attorney there to negotiate the best possible plea is very important. In addition, while representing yourself, anything you say to the prosecutor can be used against you. The prosecutor is an experienced attorney whose role is to prosecute the case against you and seek the most punishment possible. Your own Atlanta DUI attorney is there to make sure that you are treated fairly.
You may not have to appear at arraignment, depending on the jurisdiction. An attorney may be able to waive arraignment prior to your court date by filing certain documents if hired prior to arraignment. If you intend to file motions in your case, motions must be filed within ten days of arraignment or they will be considered out of time. It is important to protect your rights and ensure that all defenses remain available by filing motions on time and not waiting to hire an attorney.
What is a calendar call?
Calendar Call is a court date used by the judge to hear status updates on all cases on the judge's calendar and to schedule further motion hearings and trial dates for cases that are ready to proceed.
At calendar call the cases will be set in order of priority based on the age of the case and the seriousness of the charge. In ages past, all calendar calls took place in person and required all parties and attorneys to attend. Most courts still work this way and frankly its an embarrassment.
Thankfully, some courts have recognized that we are living in the 21st Century. Judge Rich in Gwinnett County State Court allows these meetings to happen via the internet and email. Hopefully in the coming years other courts will realize that there is no reason to show up every month to repeat the status of a case. It is ridiculous in a modern age.
What are motions?
Motions are filings made with the court by parties in the case typically asking the court to decide certain issues prior to trial. Motions may be made to suppress illegally seized evidence, to compel parties to act or provide certain evidence, or to contest other aspects of the case prior to trial.
Motions can have a significant impact on your case. If key evidence is suppressed after a hearing, that evidence cannot be used at trial. The results of a motion hearing can influence a dismissal of all charges or can impact the prosecutor's willingness to negotiate a favorable plea that may resolve your case prior to trial.
The timely filing of motions is another reason to hire a Georgia DUI Attorney, as all motions must be filed at or before arraignment. Failure to hire an attorney before your court date will result in the waiving of the most important rights you have. Delay can make the difference between having a viable defense and a certain conviction.
What is a bench trial?
A bench trial is a trial where the judge sits as the trier of fact and decides the case.
A bench trial may be favorable in cases where a legal issue may be too complex or legally technical for a jury to adequately grasp. Or, your attorney may be more confident in a bench trial given the judge's past rulings on a particular issue relevant to your case.
As a general rule, I do not recommend bench trials because most judges are afraid of public ridicule in the event they find a DUI driver not guilty. Because our judges are elected, or appointed in the municipal courts, politics makes intellectual honesty virtually non-existent in our judiciary. It also causes incredible miscarriages of justice.
What is a jury trial?
Six jurors decide a jury trial in a misdemeanor DUI case. Twelve jurors decide a jury trial in a felony case. The defense and prosecutor has an equal chance to question and choose the jury best suited to hear the case.
Voir Dire is the process by which prospective jurors are questioned about their backgrounds and potential. This process happens before any arguments are made or witnesses questioned. The State and the defense have an equal number of jury strikes. In addition, both sides can ask the judge to strike jurors for cause, such as in cases of obvious pre-judgment or bias. However, the State cannot strike a juror because of race, sex, or creed. If the prosecutor is found to have illegally struck a juror, the defense can move to have that person reinstated to the jury. This is called a Batson challenge.
During a jury trial, the defendant maintains the presumption of innocence and has the right to testify or to remain silent. No inference is allowed in the event a person elects to remain silent.
The defendant has the right to present evidence to the jury in the form of witness testimony of physical evidence. The defense can also cross-examine and challenge the testimony of the State's witnesses. The defendant's attorney can make opening and closing statements to the jury before the jury is given charges on the applicable law by the judge and issues a verdict.
Who is responsible if I miss court, and does my lawyer have to inform me of my court date?
The accused is 100% responsible if a court date is missed. The attorney is not responsible for making sure the client attends court. The client must notify the attorney of all court-related correspondence and the attorney will notify the client of all court dates known to the attorney.
Additionally, the client is responsible for notifying the attorney, the clerk of court, and the prosecuting attorney of any change of address. If you fail to notify the attorney, the clerk of court, and the prosecuting attorney of an address change, it may result in missed court notices.
The reason the accused is responsible to attend court is because only the accused is subject to the terms and conditions of a bail-bond.
Why did my lawyer tell me that I did not have to attend my court date listed on my tickets and my bond?
People often confuse "a" court date with "the" court date. When you hire our office, we do our best to try to make the process as convenient as possible for our clients. When you hire our office, there are many appearances we can handle without your presence. This includes your arraignment and your drivers license hearing (ALS Hearing). Some judges will also allow us to appear at the calendar call without our clients as well.
Of course, you will have to appear for your final plea or the trial of your case. Those are matters that cannot be handled without the appearance of the accused.
For out-of-state clients, a few judges will allow your attorney to appear on your behalf and enter a plea in absentia (in your absence). However, most judges do want the accused to attend court when the case is as serious as a DUI Case.
Does a juvenile DUI conviction end up on an adult driving record?
Even if your court records are sealed due to your age, a DUI conviction will be reported as a suspension on your driving history, which cannot be sealed and will forever be accessible by government agencies. For this reason, in order to ensure that your record is clear you must be acquitted of the DUI charge, the charge must be reduced to a lesser offense, or you must complete a Pretrial Diversion Program.
This is a loophole that needs to be closed because the purpose of the juvenile system is rehabilitation for juveniles and a second chance when a juvenile reaches adulthood. The fact that a DUI will still appear on the juvenile's MVR is contrary to the purpose of the juvenile court system.
I am under 18 years old; will my case be heard in juvenile court?
If you are 17 years of age or older, your case will not be heard in a juvenile court, but will instead be heard in a municipal, state, or superior court and you will be sentenced as an adult.
But if you are under the age of 17 at the time of the arrest, no matter how old you are at the time of your court date, your case will be heard in a juvenile court.
In Georgia, if you are 17 years old you are an adult for criminal law purposes. This is a huge surprise to the parents of young people because many high school students are charged as adults in Georgia.
Why are people under 21 treated differently for DUI and what are some of the differences?
No limited driving permit is available for people under the age of 21. Any offense for which four or more points are assessed will suspend the license of drivers under the age of 21 for six months. Also, a plea of nolo contendere will not prevent the assessment of points on your driving record. Any second or subsequent conviction will lead to a 12-month license suspension.
The reason that youthful offenders are treated differently is two-fold. The first reason is that persons under 21 are not allowed to consume of possess alcohol at all. So, the .02 standard is actually a zero tolerance standard that takes into consideration that a breath-test has a .02 margin of error. The second reason under 21 drivers are treated differently is a matter of common sense. An under 21 driver has less experience and therefore less skill as a driver. As a result, laws have been passed to limit the risk caused by drivers who are less experienced.
Driving Under the Influence of Drugs
Is there a different standard of impairment in prescription drug DUI cases?
There is an argument to be made that the standard is different. Certainly persons who are taking legally prescribed medications have far more sympathy in the court system than those voluntarily consuming alcohol or illegal drugs. Many times, through sympathy alone, a favorable plea bargain can be negotiated.
There was a case several years ago that said the standard in prescription drug cases is that to be under the influence the driver must be unsafe to drive due to consumption of the medication(s). This standard appeared to be stronger than the standard used in alcohol cases where the standard is that a person cannot be under the influence to the extent that they are less safe to drive, meaning less safe than had they consumed no alcohol at all.
For several years, this provided a great defense in prescription drug cases. Unfortunately, the defense won too many cases and Georgia Appellate courts re-defined “unsafe to drive” to be the same standard as “less safe to drive.” This new definition literally came from thin air. It's not codified that way. They simply re-defined it because of the DUI exception to the Constitution and the DUI exception to basic human fairness.
Now, it is not hopeless. One of the strategies we use in prescription drug cases is to have an expert witness review the crime lab report to determine if the driver was using the therapeutic doses of their medication. This is a power argument against the assumption of impairment.
Is a valid prescription a defense to DUI Prescription Drugs?
If charged with driving under the influence of a prescription drug, having a prescription for the drug is not a defense to this charge. The prosecutor must prove that you were under the influence of the prescription drug to the extent that you were less safe to drive.
Any person operating a motor vehicle has an absolute obligation to be safe to drive under all circumstances. If a person's doctor has prescribed a course of medication that does not supersede a driver's obligation to be safe to drive and not under the influence of that medication.
If the levels of the prescription drug in your system were within “therapeutic” levels, it can be argued that you were not actually “under the influence” of the drug. Also, some person's charged with prescription drug DUI are more sympathetic than those who voluntarily become impaired by alcohol or illegal drugs. As a result, and effective Atlanta DUI Lawyer may be able to negotiate a reduction of the DUI to reckless driving.
How are DUI Drug Cases handled in Georgia?
You are not allowed to drive while being under the influence of any drug (illegal or prescription) if that impairs your driving to the extent that it makes you a less safe driver. For legally prescribed prescription drugs, “less safe” has also been interpreted to mean being incapable of driving safely. Some argue that the “incapable of driving safely” standard is a higher burden for the State to meet in order to convict someone of DUI prescription drugs.
Having a prescription for the drug is not a defense to this charge. If the levels of the drug in your system were within “therapeutic” levels, your Georgia DUI attorney will argue that you were not actually “under the influence” of the drug. The key is the level of impairment and how it affected your individual ability to drive. There is not set “legal limit” for the consumption of any drug.
For illegal drugs, the standard of proof is that you cannot be under the influence of a drug to the extent that it makes you a less safe driver. For practical purposes, many prosecutors and jurors are more likely to presume impairment because of the illegality of the drug itself. This “presumption” is not part of the law and is actually not allowed. My point is that human beings bring to any judgment their emotions and biases. The fact that a drug is illegal to begin with colors the opinions of the ordinary people that will sit in judgment at a jury trial. It is hard to overcome this type of pre-judgment.
For convictions of DUI drugs, the license suspension for a first offense in five years is 180 days. A DUI Drug or Alcohol risk reduction course must be completed in order to have you license reinstated. For a second offense in five years, the suspension is one year. These are “hard” license suspensions, meaning no limited use permit is available for the entire period of suspension. If you were charged with any other drug-related offenses, those charges may also carry license suspensions that will run consecutive to any other license suspension. For a third conviction in 5 years, the license suspension is five years and a limited driving permit is available after the first two years of the suspension.
Is prescription drug DUI as serious as a DUI from alcohol or illegal drugs?
The criminal penalties and societal stigma is the same for DUI Prescription Drugs and DUI Alcohol or Illegal Drugs. The license suspension for DUI Prescription Drugs is actually significantly more severe than the suspension imposed for DUI Alcohol. A conviction for DUI Prescription Drugs will cause a 6-month license suspension. If convicted, the driver will not be eligible for early reinstatement or a limited driving permit.
As a result, many times a Georgia DUI Attorney will negotiate with the prosecutor to allow the driver to plea to DUI Alcohol in order to get their client a limited permit to drive. Even in cases where no alcohol is present, everyone simply agrees to allow the plea to an alcohol-related DUI in order for the driver to keep his ability to drive.
Punishment and Post-Conviction
Do DUI charges come off my record in 5 years or 10 years?
If you are convicted of a Georgia DUI charge, the charge will never come off your criminal record.
A record restriction is only available if you are found not guilty or if the charge is dismissed, and even then a DUI arrest can only be restricted if the charge was dismissed under certain circumstances.
A DUI suspension will age off your driving history (MVR) after 7 years. However, law enforcement and judicial agencies will have access to your lifetime driving history. The same is true for regular traffic tickets. They age off a Georgia MVR after 7 years, but the State can see your lifetime driver's history. So, never tell a prosecutor that you have no record just because it's been 7 years since your last ticket. The prosecutor will see your entire MVR.
Does the time I spent in jail when arrested count towards any sentence?
You will be given full credit for each hour spent in jail after your arrest for DUI. In some courts, if you spent any time at all in jail after arrest, you will be given credit for 24 hours. Some courts will only allow credit for 24 hours to be given if you spent 12 or more hours in jail after arrest. Other courts only allow credit for each hour actually spent incarcerated after arrest. If you are not sentenced to any additional jail time, the time you spent in jail after arrest will count towards your term of probation.
Most jails will give 2 for 1 credit for most jail sentences. That means 2 days are counted for every 1 day served. However, in some instances a person is not given credit for time served because the 2 for 1 credit is more advantageous than credit for time served. The sheriff has complete discretion to give 2 for 1 credit or any variation of good time credit, except in cases that involve high and aggravated misdemeanors where good time credit is not allowed by Georgia statute.
Will I go to jail for a first DUI?
For a first conviction of DUI Per Se, there is a mandatory minimum 24-hour jail requirement. There is no mandatory jail requirement for DUI Less Safe.
In some courts, if you spent any time at all in jail after arrest, you will be given credit for 24 hours and there will be no additional jail time. Some courts will only allow credit for 24 hours to be given if you spent 12 or more hours in jail after arrest. Other courts only allow credit for each hour actually spent incarcerated after arrest and you will have to serve the remaining jail time.
The minimum jail requirement is 24 hours but the judge could sentence you to up to 12 months in jail for DUI. Depending on the circumstances of your case, you may be sentenced to more than 24 hours in jail for a first offense. Aggravating factors that could affect your sentence include whether you were involved in an accident, whether there were any injuries or deaths, your manner of driving at the time, your blood alcohol concentration, and your criminal and driving records.
Some municipal courts use the offer of no jail time to influence people to keep their case in their court system, rather than having the case bound-over to State or Superior Court. The municipal court is motivated to keep the fine money within their jurisdiction, and that is part of the reason they offer defendants less or no time in jail.
What is a conditional discharge?
Whenever any person who has not previously been convicted of possession of marijuana of one ounce or less, pleads guilty to or is found guilty of the charge, the court may, without entering a judgment of guilt, defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require. Upon fulfillment of the terms and conditions, the court will discharge the person and dismiss the charge.
This type of sentencing is only available to use once for persons who have never previously been convicted of a drug charge. The court's conditions typically consist of a term of probation, random drug and alcohol screens, payment of a fine, community service, and a DUI Alcohol or Drug Use Risk Reduction Program.
As a part of the disposition of the case, you will have to attend and complete a DUI Alcohol or Drug Use Risk Reduction Program within 120 days. If you to complete the program by the date specified in the court's order, his or her driver's license will be suspended by operation of law. Failure to complete the conditions as provided by the court, failing a drug or alcohol screen, or being convicted of a new offense may cause the court to revoke your conditional discharge status and proceed with the original charge. Upon completion of a conditional discharge you will be eligible for an expungement of the marijuana arrest.
What is diversion and what are the cases where diversion is possible?
Pretrial Diversion is available in certain cases to first time offenders, although not available in DUI cases. Charges such as Minor in Possession of Alcohol, certain traffic offenses, and shoplifting are commonly referred to the Pretrial Diversion Program, which allows you to complete certain requirements in a specified time period and if completed, the charge will be dismissed and eligible to be restricted from your criminal record if approved by the prosecutor.
If your case is resolved by participation in the Pretrial Diversion Program, no conviction will be entered. Common requirements of the program are the payment of a fine or program fee, probation, community service, a personal development seminar, an alcohol awareness course, random drug and alcohol testing, a handwritten essay, or an Alcohol and Drug Risk Reduction course.
If you fail to complete the requirements or are charged with committing a new offense while in the program, you may become ineligible and you will face prosecution of the original charge along with any potential consequences. Upon completion of pretrial diversion, you will be eligible to have the arrest expunged.
Are there options to avoid the mandatory 24 hours of jail time for a first DUI?
For a first conviction of DUI Per Se, there is a mandatory minimum 24-hour jail requirement. There is no mandatory jail requirement for DUI Less Safe. In some courts, if you spent any time at all in jail after arrest, you will be given credit for the full 24 hours and there will be no additional jail time. Some courts will only allow credit for 24 hours to be given if you spent 12 or more hours in jail after arrest. Other courts only allow credit for each hour actually spent incarcerated after arrest and you will have to serve the remaining jail time.
Some judges will also take into consideration whether you have shown any responsibility for the offense since the arrest and have completed any conditions of your sentence (DUI School, Community Service, & Counseling) prior to entering a plea in deciding whether to waive the 24-hour jail time requirement. Alcohol and / or drug counseling is best thing a DUI Defendant can do in order to avoid jail time or limit jail time in cases where they have had prior DUI offenses.
Judges are impressed when people are proactive about their recovery from alcohol dependency. Even if person does not suffer from alcohol dependency, attending counseling will certainly show the judge and prosecutor that you have taken the case seriously.
What is 2 for 1 credit and good time credit?
The Sheriff is authorized to award earned time allowances to inmates based on behavior, so long as the good time credit awarded does not exceed one-half of the person's sentence. Many Georgia detention facilities also award 2 for 1 credit, meaning that for every day spent in jail, a person receives credit for two days of his or her sentence. Whether any credit is awarded is at the discretion of the sheriff.
A Sheriff is authorized to award as much as four days credit for each day spent on an authorized work detail, but the law specifically exempts persons incarcerated for a high and aggravated misdemeanor charge, persons convicted of a second or subsequent DUI offense within a five year period, and persons who committed a crime against a family member from earning such increased credit for work detail. See O.C.G.A. § 42-4-7. Generally, credit is not awarded for sentences of work release or home confinement (house arrest).
A person incarcerated for a high and aggravated misdemeanor such as a third DUI conviction cannot earn more than four days per month good time credit toward his or her sentence. No person is entitled to good time credit, and several jails, such as Douglas County do not offer it. Other jails only offer good time credit after the prisoner has served a set number of days. So, the first few days are day for day, and then the jail starts giving good time credit. The Federal system does not offer 2 for 1 credit. If sentenced in Federal Court, you will serve almost every day of the sentence.
Finally, if sentenced to serve time on weekends or in work release, generally you will serve every single day of your sentence.
What are some alternative punishments?
Alternative punishments may include the following: Community service work with a non-profit organization, a clinical evaluation with a certified professional and any recommended treatment, counseling sessions, 12-step meetings, completion of an Alcohol or Drug Use Risk Reduction Program (DUI School), a MADD victim impact panel, payment of a fine, and a term of probation.
If you are likely to be sentenced to jail time, your attorney may be able to negotiate an alternative of work release, home confinement or an alternative monitoring system, or enrollment in a DUI court program.
Work release, where available, allows those serving time in jail to maintain their employment. Residents in the program are released during working hours and must report back after work. Home confinement or house arrest generally requires that a SCRAM bracelet or ankle monitor be worn at all times. You are required to remain at your home and are only allowed to leave for scheduled working hours, medical appointments, or school. Other monitoring systems may also be used such as a MEMS monitoring device that does not require you to wear an ankle monitor. The device plugs into a power outlet and is scheduled to sound an alarm at various times of day when you are required to be home. If the alarm sounds, you are required to blow into the device, which takes your picture and tests the sample for alcohol and submits the results to your probation officer.
DUI court is a 12-24 month program for those who have multiple violations of driving under the influence of alcohol or other intoxicants. Participation in DUI court is encouraged through incentives given to participants including reduced jail sentences, fine amounts, and community service. Finally, inpatient treatment can be used in lieu of jail time. If a defendant is serious about his recovery and spends several weeks or months at a treatment facility, that time can sometimes be used to decrease jail time in serious cases.
If I go to trial and lose, can I appeal and if sentenced to jail will the jail time start immediately?
It is possible that after losing a trial you may be forced to start a jail sentence immediately. Many decent judges will allow a person a week or two to prepare for a jail sentence. In places like Douglas County, they do not treat people in that manner, and there is little understanding how much a jail sentence can fundamentally affect a person's life and livelihood.
There are some steps Georgia DUI lawyers can take to minimize the immediate impact of a conviction. First, your attorney can file a motion for a new trial or a direct appeal of the conviction to the Georgia Court of Appeals or the Supreme Court of Georgia.
With that appeal or motion for new trial, the trial judge generally will grant a “Supersedeas Bond” that will prevent the sentence from being carried out pending appeal. That being said, some judges do not treat convicted persons in a fair and decent manner. They may increase the bond amount to usury levels or even deny it for no reason at all. Accordingly, it is always best to be prepared to serve a sentence if you go to trial and get your affairs in order before court. It is also best to understand a particular judge's sentencing patterns and overall fairness before beginning a defense of your case.
My friend had a DUI and his/her sentence was far less severe. Why is my sentence more severe, and why can't I get my case reduced to reckless driving like my friend?
This is the most commonly asked question because it's a question about fairness. It's a fair question but does not always have a satisfactory answer.
Law is a human endeavor. In fact, there is no profession more affected by personalities, biases, and politics than the legal system. In a Georgia DUI case, there are the arresting police officers, the Intoxilyzer operator, the jailors, the bonding company, your family, the prosecutor, the judge, a jury of 6 people, and your Georgia DUI defense attorney. Any one of the above-listed people can have a significant impact on the outcome of your case. Some judges will not allow reductions to reckless driving. So if a person you know received a reduction in a particular county, that does not mean the judge assigned to your case would allow such a reduction.
Some prosecutors do not reduce DUI cases as often as others. Some will listen to a person's situation and give a “sympathy reduction” in a non-aggravated case. Others may only agree to reduce a case when there is a clear legal or factual reason.
Some counties are known to have a defense-minded jury pool, and other counties are known to have a more conservative, prosecution-oriented jury pool.
There are so many different factors that go into a defense; it is impossible to predict an outcome. In fact, the only thing previous success shows a potential client is that the attorney is willing to do his best in a case. Previous success is not predictive of success in someone's case.
I am charged with child endangerment, along with my DUI, what are the additional consequences?
In Georgia, for every child 14 or younger in your vehicle, you will be charged with a separate DUI. If you are charged with DUI and have two kids in your car, you would be charged with three DUIs all at once. Inexperienced Georgia DUI attorneys may accidentally counsel their clients to plead guilty to child endangerment without understanding the licensing consequences.
In the example above, the driver would be declared a habitual violator from one arrest, would suffer the consequences of a third Georgia DUI, and would lose their license for 5 years with a permit possible after 2 years. If charged with child endangerment, you need to hire the best Atlanta DUI lawyers available. In addition, you need to do everything possible (treatment, community service, DUI School, etc) to participate in your own defense. You should show the court that you have taken what has happened seriously and with deep regret. That, along with effective representation, is your best chance of getting the child endangerment charge reduced to a lesser offense.
Finally, a good outcome in any case that involves child endangerment is a reduction of the child endangerment charge to a lesser offense and a guilty plea to the underlying DUI charge. No prosecutor or judge is going to allow everything to be dismissed. It is just not realistic.
What is DUI Court and is there an advantage to me for participation in the program?
The DUI Court program is a treatment program for recidivists and is designed with the intent of providing participants a road map to recover from alcohol dependency or addiction. It is usually used in lieu of additional jail time and other consequences.
It is an extremely difficult program that is completely unforgiving of basic human failings and considerations and it treats participants like children who need correcting for even the most minor infraction.
Unless a person is 100% committed to following all of the rules therein, they are likely to serve more time in custody in the program than if they had simply accepted a jail sentence up front. The judge has the absolute power (without appeal) to sanction a participant for any infraction.
Participants are continuously tested for alcohol and drug use, attend mandatory counseling sessions multiple times a week, and must also attend Alcoholics Anonymous. The judge overseeing the program requires participants to attend court bi-weekly, as well.
It is a mystery to me that anyone can keep this schedule and still keep regular employment. Unlike Drug Court where a person's guilt is withheld and not adjudicated, with DUI Court, you must enter a plea of guilty to the DUI charge. As a result, you will likely have no driver's license for the first part of the program, while at the same time be required to attend multiple court sessions, meetings, counseling, and AA.
Finally, many of my clients have reported false positives on drug screens. The most common false positive involves the junk “science” of the creatinine level. I could possibly be a supporter of this program if it were not for this total nonsense.
If your creatinine level is elevated you are assumed to have diluted your sample. As a result, you are given a positive drug or alcohol screen, even though you have tested negative for the substances. This is complete and utter ridiculousness and is scientifically invalid.
I have personally witnessed several travesties of justice where people are hauled off to jail for allegedly diluting their samples. A simple Internet search can find many reasons why creatinine levels can be elevated. People who exercise frequently, are on low carbohydrate diets, with liver damage or elevated liver functions (such as alcoholics-- HELLO!!) can have elevated creatinine levels. Diabetics can have varying levels as well.
The end result is that some people cannot pass their test. I had one client with severe liver damage who could not pass the test and every two weeks he failed the test and was sent to jail. His medical doctor wrote a letter saying that with his liver damage and hepatitis he could not pass the test. Nevertheless, the DUI Court continued to “practice medicine” and send him to jail week after week. He lost everything he owned.
What is an ignition interlock device?
For people who are convicted of a second or more DUI in Georgia, they will be required to install an ignition interlock device on their car. Essentially, the interlock prevents a person from driving after consuming any amount of alcohol. If the interlock device, which is a fuel cell-based breath-testing unit, detects any alcohol, the car will not start. Also, your probation officer will be notified if the device detects any alcohol and this may cause a probation violation.
The problem with a fuel cell-based devise is that any alcohol can cause a positive read, whereas a more advances device can differentiate ethyl alcohol from other alcohols that can be found in hand sanitizers and in the environment such as isopropyl alcohol and acetone (found in paints).
If you are not careful, a false positive reading could result in a probation violation. I have heard from several clients that the inadvertent use of hand sanitizers has caused false positive readings.
What is a clinical evaluation, and how does this differ from the test I took at DUI School?
Most first DUI sentences and all second or more DUI sentences include a requirement that you will have to get a clinical evaluation for alcohol and/or drug dependency. This evaluation is separate and apart from the “test” given to you at DUI School.
A clinical evaluation is where a licensed evaluator interviews you and makes a determination if you need counseling and if so for how long. The counseling recommended then becomes a condition of your probation. That means that you are required to complete the recommended counseling or you risk having your probation revoked. When your probation is revoked, that means you will spend the remaining time on probation in jail.
Are there alternative punishments instead of time in jail?
Yes. There are several alternative punishments that can be negotiated depending on your individual circumstances.
The first has been covered in another questions. That is the DUI Court program. The DUI Court is a treatment program that is supervised by the judge assigned to your case. In theory, if you meet all the requirements of the program without any violations, you will serve less jail time. In practice, not many people can make it through 18 months without violating some rule in the program because the program fails to recognize that life is a series of exceptions and misunderstandings.
A better option for people who have had multiple prior offenses is admission into an in-patient treatment program. There are several excellent programs in the Metro-Atlanta area and throughout Georgia. For youthful male offenders I specifically recommend the PenField Christian Home (of course depending on your religious affiliation). They do an excellent job of combining the traditional “12 Step” approach with Christian values training. I have had several several successful graduates tell me that it made a tremendous difference in their lives. From a legal perspective, when a person attends treatment it shows the judge and the prosecutor that they are far less likely to become a recidivist. As a result, they will generally give a person a lesser punishment, since part of the purpose of punishment is specific deterrence. However, because part of punishment is to deter others, or general deterrence, there will still be some punishment, even after a person has completed a treatment program.
Other potential alternative punishments include home confinement and work release. Home confinement is usually monitored by an ankle bracket (GPS) or home call in system (video monitored). While on home confinement, you are allowed to leave your home during regular working hours and for court-ordered treatment. Otherwise, you will be confined to your home.
Work release is a program available in some jurisdictions. While on work release you are required to pay for your nightly stay in jail. You are released 5 days a week to work during regular working hours. You must have transportation to work, and you must return to the work release lock-up facility on time, every day. If you fail to return on time, you will be charged with Felony Escape. In addition, while on work release, you will not get any “good time credit” and you will serve every day of your sentence.
If I decide to drive while having a suspended drivers license, what are the potential consequences?
Driving on a suspended license, O.C.G.A. 40-5-121, is a serious offense. To begin with, the minimum sentence includes jail time and an additional 6 months of license suspension on top of the suspension already being served. When a person is charged with driving on a suspended license, it starts what I call the “license merry-go-round.” What I mean is that one charge of suspended license usually leads to the next charge because it causes a new suspension of your license. It becomes a potentially never-ending loop of new offenses.
The key is to get off the merry-go-round. You need to restore your license and work through whatever has caused the suspension. Once you restore your privilege to drive, your Atlanta DUI Attorney will then need to negotiate a reduction of the suspended license charge to a lesser offense that does not re-suspend the license. The goal of the representation is to once and for all get off the suspended license merry-go-round.
What are the penalties for a first DUI in Georgia?
The maximum penalties for a first Georgia DUI conviction are a fine of $1,000 and up to 12 months in jail. The minimum consequences are 24 hours in jail, which may still be waived in some circumstances, and a $300.00 fine. Other mandatory minimum consequences are 40 hours community service at a non-profit organization, completion of an Alcohol or Drug Use Risk Reduction course (commonly known as DUI School), and 12 months probation, which may be supervised or potentially non-reporting and may allow for random drug and alcohol screening.
A substance abuse evaluation to determine whether you have a substance abuse problem that requires further treatment is typically required in most courts, but may be waived at the judge's discretion.
If you are under age 21 and your BAC was lower than 0.08 grams percent or if you refused to take the State test, no jail time is required, however the judge may order jail time at his or her discretion given the circumstances of your case. If you refused to take the State test or if your BAC was lower than 0.08 grams, only 20 hours of community service are required. If your BAC was 0.08 grams or more, 40 hours of community service are required.
Many courts will add additional conditions to your sentence such as a Mothers Against Drunk Driving (MADD) Victim Impact Panel or attendance at a number of Alcoholics Anonymous (AA) meetings within your community. The maximum driver's license suspension period is 12 months. If you complete DUI school and pay a reinstatement fee you will be eligible for early reinstatement after only 120 days. If you are 21 years old or older, you can apply for a limited use driving permit for the duration of the license suspension that will allow you to drive to work, school, substance abuse counseling, DUI school, for medical care and treatment purposes, to pharmacies to drop off or pick up prescriptions, court appearances, probation appointments, and community service. If an immediate family member is unlicensed, you can drive them to work, school, medical care, and to pharmacies to drop off and pick up prescriptions. If your license has been suspended prior to conviction due to an implied consent refusal, you will not be eligible for a limited use driving permit.
For drivers under the age of 21 who are convicted of DUI, if their blood alcohol concentration was less that 0.08 grams percent, the test results were suppressed, or if you refused to submit to the State-administered breath test, the license suspension period is 6 months. If your BAC was 0.08 grams percent or more, the license suspension period is 12 months. No limited use driving permit or early reinstatement is available to any driver under the age of 21. If this was your first DUI conviction, but your driver's license had previously been suspended due to an offense requiring a mandatory suspension such as hit and run, reckless driving, or any offense for which four or more points are assessable, the suspension period after a DUI conviction will be 12 months regardless of whether you submitted to a test or your blood alcohol level.
No limited use driving permit is available for drivers convicted of DUI drugs, whether illegal, over-the-counter, or prescription. If you were also charged with any other drug-related offenses, those charges may also carry license suspensions that will run consecutive to any active license suspension already on your record.
What are the penalties for a second DUI in Georgia?
The maximum penalties for a second DUI within 10 years are a fine of $1,000 and up to 12 months in jail. The minimum consequences are 72 hours in jail, with credit for any time served after arrest, a fine of $600.00, 240 hours community service, completion of DUI School, a substance abuse evaluation and any recommended treatment, and 12 months probation.
If this is your second Georgia DUI conviction within 5 years, there are additional consequences. You will be required to pay a $25.00 fee to publish a notice of your conviction and your photograph in your county newspaper and surrender the license plates to any vehicle registered in your name.
The license consequences for a second DUI conviction within 5 years is a 3 year suspension. No limited permit is available for the first 120 days. A limited permit may be granted after this period, but is conditioned upon the installation of an ignition interlock device for a minimum period of 12 months. In order to apply for an ignition interlock device limited permit you will have to present a certificate of eligibility from a drug court program or proof of enrollment in substance abuse treatment. A clinical evaluation must be completed prior to enrolling in a treatment program. The certificate of eligibility is only issued at the discretion of the judge during sentencing. The judge can decide to not issue the certificate for any reason.
After the period expires requiring an ignition interlock device, you can apply for a limited permit without the ignition interlock device restriction. After 18 months, you will be eligible for early reinstatement of your full driving privileges if you provide proof that an ignition interlock device was maintained for period of 12 months or an order from the court exempting you from this requirement, proof of completion of a substance abuse treatment program (if required by the clinical evaluation), and a reinstatement fee.
What are the penalties for a third DUI in Georgia?
A third Georgia DUI conviction within 10 years in Georgia is considered to be a high and aggravated misdemeanor. The maximum consequences for this charge are 12 months in jail and a $5,000.00 fine. The minimum consequences are 15 days in jail, with credit for any time served after arrest, a $1,000.00 fine, 240 hours community service, DUI school, 12 months probation, and a substance abuse evaluation and any recommended treatment. The judge can suspend half of the fine if you undergo an alcohol or drug treatment program approved by the court.
If this is your third DUI conviction within 5 years, you will also be subject to a $25.00 fee to publish a notice of your conviction and your photograph in your county newspaper. You will also be required to forfeit your vehicle to the State, though you can petition the judge to transfer the title to another family member if the forfeiture would cause your family financial hardship.
The license consequences for a third conviction within 5 years is a 5 years license revocation. You will also be declared a habitual violator. After 2 years, you can apply for a probationary license to use for the remaining 3 year revocation period that may have restrictions as to the places, routes, and times you are allowed to travel. If you violate the terms of your probationary license, it will be revoked and you cannot reapply for a regular driver's license until the original 5 year revocation period has ended or for 2 years – whichever is greater.
If you have been convicted of a Minor in Possession of Alcohol or drug offense prior to being declared HV, you will be barred from getting a limited permit after 2 years. You will have to spend the entire 5 years without driving.
If you are caught driving after being declared an habitual violator, you will be charged with a felony that carries up to 5 years in prison.
What are the penalties for a fourth DUI in Georgia?
A fourth DUI within 10 years is a felony offense in Georgia, but only convictions on or after July 1, 2008, are considered for this purpose. The maximum penalty for a fourth DUI conviction within 10 years is 5 years in jail and a $5,000.00 fine plus court surcharges. The minimum penalty is a one year jail sentence of which all but 90 days can be probated, with credit for any time served after arrest, and a $1,000.00 fine.
The judge can suspend half of the fine if you undergo an alcohol or drug treatment program approved by the court. Other mandatory requirements are 60 days (480 hours) community service, DUI School, 5 years probation less any time served in jail, a clinical evaluation and any recommended substance abuse treatment. All community service can be suspended if you are sentenced to serve 3 years in jail or more.
It is very unlikely that someone with a 4th Georgia DUI conviction will be sentenced to the minimum sentence available under the law. Most courts will simply give a person with a 4th DUI the maximum allowed by law, which means a year in jail.
Do lawyers actually get upset when there is an unexpected outcome in a case? Do they really care about the people they represent?
Negotiations are typically worked out in advance to allow for planning. Unexpected outcomes can negate all planning that had been done. Attorneys value certainty for their clients and an unexpected outcome can cause issues with your employment and all other aspects of your everyday life.
I would not handle cases I did not care about and I care about the people I represent. I strive to get to know my client's needs and do everything I can to make sure that my clients get the best possible outcome in their case given their own personal circumstances.
Attorneys are people with feelings. I feel for all of my clients and want them to know that we will leave no stone unturned. Everyone in my office is devoted to achieving the best outcomes possible.
Can I get my DUI conviction expunged?
Generally, DUI convictions cannot be expunged.
Expungements are only available if you are found not guilty or if the charge is dismissed, and even then a DUI arrest can only be expunged if the charge was dismissed under certain circumstances.
The key fact that makes expungement extremely rare is that every charge must be dismissed before a person is eligible for expungement. As a result, if a person is charged with DUI and several minor traffic violations, every charge must be dismissed in order for the DUI to be eligible to be expunged. So, if the arrested person is convicted of speeding or failure to maintain lane, the DUI cannot be expunged, even if the person charged is found not guilty of the DUI.
Finally, if you plead guilty or are found guilty of any offense in Georgia, it cannot be expunged. Expungements are for dismissed cases or cases where a person is found not guilty at trial (of all charges).
Collateral Effects of a DUI
Will my probation officer contact my employer?
Your probation officer will not contact your employer unless there is a reason to do so. If you are in compliance with the terms of your probation and reporting to your probation officer as directed, there will be no reason for your probation officer to contact your employer. If your probation officer is unable to get in contact with you, he or she may resort to contacting your employer in order to locate you.
If you are in a DUI Court program, the program coordinator will likely contact your employer because of the time commitment required by the program.
If on regular probation, the easiest way to avoid having a probation officer contact your employer is to remain in full compliance with the terms of your probation.
Will my name be published in the newspaper or mug shot magazines and websites?
Arrests are public record in Georgia and so there is a possibility that your name could be published in the newspaper. For example the City of Roswell prints all arrests every Wednesday in their local newspaper.
If you are convicted of a second or subsequent DUI offense within a 5 year period, you will be required to pay a $25.00 fee to publish a notice of your conviction and your photograph in your county newspaper. The $25 is collected from the convicted driver. As for mug shot magazines and websites, this has become huge problem for my clients. These websites and magazines exist solely to profit from the suffering of others. They use extortion tactics to force people to pay money to have their images removed. For people with pending charges or who have been convicted, little can be done other than to pay to have their images removed. However, for those acquitted of the DUI, the sites are required to remove your image at no cost. Of course forcing these websites to remove your image can be problematic since most operate outside the jurisdiction of Georgia's laws.
How will this affect my professional license?
Receiving a DUI conviction as a licensed professional can have long term, unforeseen effects and consequences for one's career and reputation. Depending on the occupation, some professional licenses may be revoked or forfeited. Future professional license applicants may also be disqualified from obtaining their license. If you drive a company vehicle or if you are required to drive your own vehicle for business purposes, it is likely that there may be reporting requirements regarding DUI arrests or loss of driving privileges. Your company's fleet insurance policy likely includes requirements to check employee MVRs periodically and may specifically exclude any driver with a prior DUI conviction.
If you are a doctor, lawyer, dentist, or nurse and convicted of a DUI, you may have immediate disclosure requirements or may have to report the conviction upon renewal. For attorneys, if you fail to disclose your conviction, you may lose your bar license and be unable to practice law. After disclosure, a hearing may be conducted in which your character and fitness to practice will be evaluated.
For bartenders and servers, a DUI conviction may affect your ability to renew a pouring permit. If you are a stockbroker and convicted of a DUI, you are required to report this to the Financial Industry Regulatory Authority. Failure to report may result in disqualification as a stockbroker. Large brokerage firms typically require reporting a conviction. To find out specifically whether you should report your conviction, consult your employer's personnel handbook.
However, for most first offenses you will not lose your professional license if the driver reports the arrest to the professional licensing board. As with most situations, the cover-up is worse than the crime.
How will a DUI affect my security clearance?
A DUI charge can be a major concern during the application or renewal process for a security clearance. A DUI charge by its nature casts doubt on the reliability and responsibility of an individual. It also raises a red flag in multiple sections of the guidelines – Personal Conduct, Criminal Conduct, Alcohol Consumption, and Drug Involvement (depending on the nature of the DUI charge).
If you are convicted of the DUI charge, you will also be placed on probation, which in itself is a disqualifying condition. The conviction will be less of a concern if the DUI offense occurred many years ago and if you have taken steps that show there will be no recurrence of the behavior that led to the arrest. Such steps could be seeking and receiving substance abuse treatment and removing negative influences from your life.
Other positive changes might be involvement with community organizations, starting a family, and higher education. In the case of a DUI, the wording of the guidelines allows the arrest itself, without a conviction, to be a disqualifying condition. The circumstances of the arrest may also mitigate the concern if your blood alcohol concentration was relatively low and there were no aggravating factors like a car accident.
If the DUI charge is reduced to a lesser charge such as Reckless Driving, the conviction could still be a disqualifying condition under the Personal Conduct guideline. It is unlikely to be a concern under the Criminal Conduct guideline because it is not considered a serious crime, but depending on your criminal or driving history, it could be just one of many lesser offenses that raise a red flag for the adjudicator. Your behavior is generally the primary consideration and if there is significant evidence that the crime was committed, even if it was dismissed or reduced to a lesser offense, you may still be denied clearance. A reduction to Reckless Driving, if due to a legal exception, may not be helpful if you have many other past alcohol or drug-related charges. Two or more misdemeanor offenses showing a pattern of behavior may be disqualifying. A single alcohol-related incident, even if recent, does not necessarily suggest abuse. Adjudicators and investigators will look for signs of substance abuse during the review process to determine if there should be concern over the arrest.
Do I have to tell my employer about my DUI arrest?
Whether you must disclose a DUI arrest to your employer will be determined by any existing employment contracts or human resources requirements that are in place.
If you drive a company vehicle or if you are required to drive your own vehicle for business purposes, it is likely that there may be reporting requirements regarding DUI arrests or loss of driving privileges. Your company's fleet insurance policy likely includes requirements to check employee MVRs periodically and may specifically exclude any driver with a prior DUI conviction.
If you hold a professional license – as a lawyer, nurse, doctor, stockbroker, accountant, etc. – you can expect to have to disclose your conviction upon renewal.
Individuals with active security clearances or individuals awaiting clearance determination are required to promptly report any potentially disqualifying issues to their security officers. Moreover, supervisors and coworkers are under a similar obligation to report any known issues that may render the individual ineligible for maintaining a security clearance. Some employers distinguish arrests and convictions (as they should) and only have a reporting requirement if a person is convicted of the DUI. Others seem to think an arrest is a conviction, which is completely contrary to our laws and traditions.
What do I have to put on an employment application after a DUI arrest?
Your response will depend on how the question on the application is worded. A traffic ticket or citation is considered a charging document, and so once a DUI citation is issued you have been charged with DUI. A conviction occurs once a plea has been entered and accepted or a guilty verdict has been entered after a trial.
You may have to disclose the charge if the application asks if you have ever been arrested, charged, or detained for DUI. If the application asks if you have ever been convicted of a crime, and your DUI case is still pending, you may honestly answer that you have never been convicted of DUI. The key is honesty and candor. The worst situation is being let go after taking a job because of a misrepresentation in an employment application. A far better policy is to be honest and provide an explanation up front.
How do I deal with the various mug shot websites and can I get them to remove my picture?
On May 6, 2013, new Georgia legislation went into effect which requires that, if an individual meets certain criteria, the commercial website must remove his or her mug shot from the website at no charge and must do so within 30 days of the date the individual sends a written request to the company.
You are entitled to free removal of your mug shot if access to the charges was restricted pursuant to Georgia law, if the offense was closed by the arresting agency, if the statute of limitations expired prior to charges being brought, if all charges were dismissed or nolle prossed, if the offense was conditionally discharged and you successfully completed the terms of probation, or if you were acquitted of all charges.
If you do not meet the criteria under the new law, the owners of these websites generally accept payment to remove mug shots from their site. Georgia's law is new and many mug shot websites are registered in other states or countries and do not believe this law can be enforced and many may not comply and agree to take down your mug shot without a fee. These websites are designed to extort the accused prior to the adjudication of their cases. They serve no benefit to the public. They disgust me.
Can my bond be revoked if I get a second DUI while my first DUI is still pending?
Yes. One of the conditions of bond is to not violate the criminal laws of any governmental unit. As a result, in rare situations, prosecutors can file a motion in court to revoke or modify a bond.
The reason prosecutor's say they want to revoke bond is for public safety purposes. That may be true. However, reality cannot be ignored. When a criminal defendant is in jail, the leverage switches to the State because getting out of jail is a powerful motivator. Even innocent people agree to plead guilty just to get out of jail.
The ultimate decision-maker in a bond revocation hearing is the presiding judge. However, the prosecutor and the defense can also negotiate the terms of the bond. Most bond revocation hearings are negotiated between the parties. Most of the time the defense can get his client out on a new bond with more conditions and restrictions.
Does DUI ever come off my record?
Your record cannot be restricted if you are convicted of DUI. O.C.G.A. § 35-3-37(j)(4)(B)(xii).
DUI arrests may be restricted from an individual's criminal history records under certain circumstances outlined in O.C.G.A. § 35-3-37(d)(1). The following are examples of final court dispositions that may qualify: if all charges were dismissed or dead docketed, or if the individual was acquitted of all charges. Dispositions of guilty, not guilty, nolo contendere, and first offender are not eligible.
What is a MEMS Device and how is it used?
A MEMS device uses video or photo verification and alcohol detection technology to monitor alcohol intake. It is usually used as a condition of probation in lieu of time in confinement. The device plugs into a power outlet and connects to a landline (some may connect to a cell tower).
If the device is used in connection with a sentence of home confinement or house arrest it may be scheduled to sound an alarm at various times of day when you are required to be home. If the alarm sounds, you are required to blow into the device, which takes your picture and tests the sample for alcohol and submits the results to your probation officer.
What is a SCRAM Device and how is it used?
A SCRAM device is an ankle bracelet and monitor and must be worn at all times. It is used as a condition of probation in lieu of time in confinement.
The device is used to monitor your blood alcohol level and takes samples of perspiration every 30 minutes and records the level. Data is transmitted from the device daily and if alcohol is detected, the information is forwarded to your probation officer. You may also be required to remain at your home on house or arrest or home confinement and you may only be allowed to leave for scheduled working hours, medical appointments, or school.
Do innocent people ever plead guilty to DUI just to keep their driver's license, and in what circumstances would that occur?
Yes, innocent people may decide to plead guilty to DUI for numerous reasons given their personal circumstances.
No attorney can guarantee results in a criminal case. There are too many factors that cannot be controlled. A plea can provide some certainty of the sentence or consequences you will receive. A person facing a significant sentence may decide to enter a plea to DUI to gain some control over the plea recommendation to the judge.
In the case of a person who has refused to submit to the officer's request for a breath or blood test and is facing a refusal suspension of one year, that person may agree to enter a guilty plea in exchange for the officer withdrawing the request for an implied consent suspension. Making this type of agreement can ensure that a person is eligible for a limited permit after conviction.
A person charged with DUI drugs will also not be eligible for a limited permit if convicted and may decide to enter a plea to an amended charge of DUI less safe with no specification of substance to ensure that a limited permit will be issued and an earlier reinstatement date.
Ultimately, there are people who are “forced” to choose to enter into a plea of some kind in order to avoid punishment or loss of license. It is a sad reality in criminal law.
What does it mean to be placed on probation in Georgia?
Probation is an alternative to serving a criminal sentence in jail and all probation sentences in Georgia are actually terms of incarceration. Probation is the alternative to spending the entire time in jail and is allowed if the probationer follows certain conditions such as completing community service, counseling, payment of fines, etc.
Since the sentence is actually a term of incarceration, you can be jailed if you violate the conditions of probation. This is called a probation revocation. If you violate the terms of your probation, the judge in your case may be able to revoke all or part of the remaining term of your probation. If you violate the terms of your probation, your probation officer can file a petition for modification or revocation of your probation and the judge may issue a warrant for your arrest.
There are two types of Georgia probation violations. The first is called a technical violation of probation. A technical violation is when a person does not complete the “special conditions” of their probation. Those conditions are generally the payment of fines, completion of community service, the completion of counseling, etc. If you violate the special conditions of probation usually a part of your remaining sentence will be revoked.
The other violation is when the “general conditions” of probation are violated. The general conditions are to report as directed to the probation officer, avoid injurious or vicious habits such as alcohol and drug use, work suitably at appropriate employment, avoid persons or places of disreputable and harmful character, and to no violate the laws of any governmental unit. (this is the actual list, not Richard Lawson's words). If you violate the general conditions of probation, it is far more likely the remaining time on your sentence will be completely revoked, especially if you are actually arrested for a new crime. After your arrest on a probation warrant, a hearing will be scheduled for you to appear before the sentencing judge. You will not be entitled to bond pending your hearing. At the Probation Revocation Hearing, the probation officer will have to prove the allegations as to how you violated the terms of your probation by a preponderance of the evidence. If the judge finds that you violated the terms of your probation, the judge may revoke up to the balance of your probation and sentence you to jail for that time for a special condition violation.
If you are found to have violated probation, the judge is not limited to jail time as a consequence. The judge may order you to continue with the original terms of probation or the court may require additional community service, intensive probation, alternatives to confinement such as work-release and/or house arrest, ankle monitoring, or counseling.
What happens if I violate my probation?
Violating probation is the worst thing that can happen to a criminal defendant because it exposes you to the revocation of your of your probation. Revocation means the possibility of spending the remainder of the time left on your sentence in jail.
What most people don't understand is that a sentence that includes a period of probation is actually a jail sentence that is allowed to be served on outside of jail under a set of guidelines. As a result, if those conditions are violated, the judge can send you to jail with minimal due process rights. The State does not need to prove you guilty of violating probation beyond a reasonable doubt. In fact, they only have to prove the violation to a preponderance of the evidence (the civil standard of more likely than not).
As to what will actually happen, the sanctions for violating probation can include greater fines, more time on probation, additional community service, counseling for alcohol and drug dependency, and additional time in jail. If the violation of probation is the arrest for a new offense, it is far more likely the sanction will be time in jail. If the violation is an arrest for the same offense for which you are on probation, the sanction is likely the revocation of the balance of the sentence to be served in jail.