DUI Drugs in Georgia
Have you been accused of having drugs in your system while driving, resulting in a DUI charge?
One of the fasted growing trends in Georgia DUI are the increasing instance of arrests related to DUI cases involving drugs.
Richard Lawson has co-authored a book on DUI Drugs and DUI Prescription Drugs. He puts more than 20 years of legal experience defensing DUI Drug Cases in Georgia. As a former DUI Prosecutor, he is uniquely qualified to look for defenses in your case. The mere consumption of drugs does NOT mean you are guilty of DUI. This is the biggest misconception.
Most attorneys do not understand the concept that the consumption of drugs does not equal guilt. Most lawyer look at the crime lab report and see drugs and assume guilt. They fail to look to see if the drugs themselves are actually at levels that ACTUALLY IMPAIR THE DRIVER. That is the key fact and it is lost on some many people, including so called Georgia DUI Lawyers.
There Are Defenses to DUI Drugs in Georgia - No One Is Automatically Guilty, Even if There are Drugs Your System:
What does the law actually say about DUI-Drugs in Georgia?
Georgia's DUI Statute, O.C.G.A. § 40-6-391, covers not only offenses related to driving under the influence of alcohol, but also offenses related to driving under the influence of drugs, both legal and contraband. Essentially, O.C.G.A. § 40-6-391 contains three (3) major provisions pertaining to DUI-Drugs:
- A person shall not drive while under the influence of any drug to the extent that it is less safe for the person to drive.
- A person shall not drive under the influence of a combination of substances (i.e. drugs and alcohol) to the extent that it is less safe for the person to drive.
- A person cannot be under the influence of prescription drugs, even if a drug or drugs are prescribed legally. However, in order to uphold a conviction, the State must prove that such legally prescribed medication rendered the individual incapable of driving safely.
In DUI-Alcohol cases, a person is presumed to be under the influence of alcohol if his blood alcohol level is over 0.08. In DUI-Drugs cases, there is no quantitative “legal limit” that indicates whether a person is under the influence. Rather, the necessary question is whether an individual is under the influence of a narcotic to the extent that they are a less safe driver.
Officers have broad discretion in determining whether an individual is a less safe driver. They are trained to take into account all of the factors surrounding the arrest, including the individual's observed driving, his/her mannerisms, and his/her performance on Standardized Field Sobriety Testing. When a case arrives in court, the prosecutor will take all of these factors into account, as well as the results of any chemical testing that was performed.
Standardized Field Sobriety Testing in the Context of a DUI-Drugs Case:
If a driver is suspected of driving under the influence of alcohol or drugs, he or she will most likely be subject to the standard battery of field sobriety tests. Those tests include the Horizontal Gaze Nystagmus test, the Walk and Turn, and the One Leg Stand.
If an officer suspects that an individual is under the influence of drugs, he may ask the driver to perform further testing, including the Romberg Balance Test or the Lack of Convergence Test.
Horizontal and Vertical Gaze Nystagmus Tests:
The Horizontal Gaze Nystagmus (HGN) Test measures the involuntary jerking of the eye that occurs when a person has consumed alcohol or other central nervous system (CNS) depressant.
Before HGN is performed, the officer must determine whether the individual is a good candidate for the test, as some medical or eye conditions may cause nystagmus absent the presence of alcohol or drugs. The officer should first ask the individual whether they have any such conditions. The officer should then check for "resting" nystagmus – nystagmus that exists when the eyes are facing forward and not moving. Resting nystagmus can indicate the presence of a medical disorder or the presence of certain types of drugs (PCP, for example). The officer should also check the subject's tracking ability, or whether the individual can physically follow the stimulus with both eyes. If a person's eyes cannot track equally, it may indicate the presence of a medical condition.
Once a person has been medically qualified, the officer may proceed with the test. The officer has the subject follow the motion of a small stimulus—usually the tip of a pen or penlight—with his or her eyes only. Each eye is checked, beginning with the left eye. Two or more “passes” are made before each eye, to look for each of the clues of nystagmus.
- For HGN, officers examine each eye for three specific clues (for a total of six clues):
- As the eye moves from side to side, does it move smoothly or does it jerk noticeably?
- When the eye moves as far to the side as possible and is kept at that position for four seconds, does it jerk distinctly?
- As they eye moves toward the side, does it start to jerk prior to a 45 degree angle?
Vertical Gaze Nystagmus (VGN) is an involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs (such as CNS depressants or inhalants). There is no drug that will cause Vertical Gaze Nystagmus while not also causing Horizontal Gaze Nystagmus; thus, if Vertical Gaze Nystagmus is present and Horizontal Gaze Nystagmus is not, it may also be caused by a medical condition.
Officers typically check for VGN immediately after checking for HGN, using the same stimulus but simply moving it vertically rather than horizontally. For VGN to be recorded, it must be definite, distinct and sustained for a minimum of four seconds at maximum elevation.
If either HGN or VGN are observed, this may indicate the presence of drugs or alcohol. However, absence of nystagmus does not necessarily rule out the presence of drugs, as some drugs do not cause nystagmus.
Even in the absence of nystagmus, officers are trained to note other features of the eyes. For example, officers will usually note if pupils are noticeably dilated, as this may indicate the presence of drugs such as CNS stimulants (cocaine and amphetamines, for example), Hallucinogens (LSD or mushrooms), or Cannabis (marijuana).
The Walk and Turn Test:
The Walk and Turn test is a "divided attention" test that requires an individual to concentrate on more than one thing at a time—a mental task and a physical task. The idea behind this is that driving is also a divided attention task—drivers must simultaneously control steering, acceleration and braking, watch the road and react appropriately to their surroundings. Because alcohol and drugs may reduce a person's ability to divide attention, it is believed that an inability to complete a divided attention test adequately is indicative of some level of impairment.
The Walk and Turn test is divided into two phases: the instructional phase and the walking phase. During the instructional phase of the test, the officer tells the individual to stand in a heel-to-toe position and remain there until the officer tells him or her to begin the test. During this phase, the person's attention is divided between balancing in the heel-to-toe position and listening to and remembering the instructions for the remainder of the test.
During the walking phase of the test, the individual is instructed to take nine heel to toe steps, turn in a specific manner, count his or her steps out loud, and watch his or her feet. This phase divides the individual's attention among a balancing task, a small muscle control task, and a short-term memory task.
The officer observes the individual during the performance of the test, noting if the individual:
- Cannot keep balance while listening to the instructions
- Starts too soon
- Stops while walking
- Does not touch heel to toe
- Steps off the line
- Uses arms to balance
- Makes an improper turn
- Takes an incorrect number of steps
The One Leg Stand Test:
The One Leg Stand test is another NHTSA-validated divided attention test that is commonly used during a DUI investigation. The One Leg Stand test consists of two phases: the instructional phase and the balance and counting phase. During the instructional phase, the individual is instructed to stand with his or her feet together, arms down by his or her sides. Once instructed to begin the test, the individual lifts either leg approximately six inches off the ground while counting out loud ("one thousand one, one thousand two, one thousand three,” etc.) until told to stop.
The officer observes the individual during the performance of the test, noting if the individual:
- Sways while balancing
- Uses arms to balance
- Puts foot down.
These are the four validated clues for this test. The individual is considered unable to complete the test if the subject is in danger of falling.
Other (Non-standardized) Tests Commonly Used to Determine Impairment:
These tests are non-standardized tests that have not been scientifically validated by NHTSA for use during a DUI arrest. Nonetheless, officers often use them to develop probable cause for arrest. An expert can inform the jury as to the lack of scientific evidence to support the administration of these tests.
Modified Romberg Balance Test:
The Modified Romberg Balance Test is designed to check a person's internal clock, balance and presence of tremors. Officers instruct the individual to tilt his or her head back and close his or her eyes. The suspect is then asked to estimate the passage of 30 seconds, and to open their eyes when they believe 30 seconds has elapsed. The idea behind this is that some drugs "speed up" the internal clock while others tend to slow it down, causing a person to have difficulty estimating the passage of time. Officers note the amount that the subject sways (which the officer must estimate), the actual amount of time that the subject keeps the eyes closed, and the presence of tremors.
Lack of Convergence Test:
Lack of convergence occurs when an individual is unable to cross his eyes when focusing on a stimulus that is moving towards the bridge of the nose. It is observed when one eye, or both eyes, drift away or outward toward the side instead of converging toward the bridge of the nose. Lack of convergence may indicate the presence of CNS depressants, inhalants, dissociative anesthetics, or marijuana.
The officer instructs the individual to recite the alphabet beginning with a letter other than A and stopping with a letter other than Z. This test has not been scientifically validated.
This technique requires the individual to count out loud 15 or more numbers in reverse sequence. For example, the officer might request the individual to, "Count out loud backward, starting with the number 68 and ending with the number 53."
In this technique, the individual is asked to touch the tip of the thumb to the tip of each finger on the same hand while simultaneously counting up one, two, three, four; then to reverse direction on the fingers while simultaneously counting down four, three, two, one.
DRE – Drug Recognition Experts:
Some police officers are trained as DRE's, drug recognition experts. They receive specialized training to determine through field-sobriety testing if someone is under the influence of illegal or prescription drugs. Usually, most DRE's are also experts in detecting alcohol-based DUI's. There is no requirement that an officer is a DRE to arrest someone for driving under the influence of drugs.
However, having the certification of being a drug recognition expert adds tremendous credibility to a police officer accusing someone of DUI-Drugs. Conversely, since most police departments and the Georgia State Patrol have DRE's on staff, an officer who suspects someone of DUI-Drugs compromises their case if a DRE is not called-in.
In a DUI-Drugs Case, A Trained and Experienced Georgia DUI Attorney Is Essential If Field Sobriety Testing Was Conducted:
If you were subjected to field sobriety testing prior to a DUI-Drugs arrest, it is of the utmost importance that you seek an attorney with experience in DUI Defense. There are several reasons for this. First, these tests are standardized, and police officers are not infallible. If the arresting officer failed to perform the tests correctly, an experienced attorney can challenge their validity. An untrained lawyer may not be able to recognize when a test is performed incorrectly, and you may lose a valuable defense in your DUI-Drugs case.
Second, lawyers with experience know that these tests were not designed to detect the presence of drugs. While the effects of certain drugs mimic the effects of alcohol, field sobriety testing was never developed or validated to detect drugs. They are intended to detect the usage or impairment of alcohol. An experienced Georgia DUI Attorney understands how to challenge the use of field sobriety testing in DUI-Drug cases.
Chemical Testing In DUI-Drug Cases and DUI-Marijuana Cases:
No case is hopeless. Even if your blood or urine test is positive for marijuana there is hope. When an individual uses marijuana, his/her body begins to break down the marijuana metabolites, called THC. The first metabolite produced is Hydroxy THC. This is the psychoactive metabolite. Once the Hydroxy THC is metabolized by the liver, a secondary metabolite, Carboxy THC, is produced. Carboxy THC is non-psychoactive and is not impairing. Carboxy THC does, however, remain in the body for several weeks after the last marijuana use.
In Georgia, the type of blood test typically administered to people suspected of DUI Marijuana only tests for the presence of marijuana metabolites (THC), without differentiating between Hydroxy THC (the psychoactive metabolite) and Carboxy THC (the non-psychoactive metabolite). This means that although the test may show that you had marijuana metabolites in your system, this does not necessarily mean you were driving under the influence of marijuana.
A successful defense in a DUI-Marijuana case requires the attorney to understand not only the law, but the science of marijuana impairment as well. The attorney must also know the best way to consult with expert witnesses, such as toxicologists, to help build your best defense.
DUI-Prescription Drug Cases Are On The Rise, and A Successful Defense Requires Experience:
In most DUI-Drugs cases, the police request a blood test. Thus, to achieve the best possible outcome, a knowledgeable attorney must understand the procedure used in blood testing and how this procedure may result in errors. For example, the person drawing the blood may have accidentally contaminated the sample, the blood may have coagulated (resulting in an artificially high level of alcohol or drugs in the blood sample), or the blood may have been stored under poor conditions, resulting in spoliation of the sample.
As stated above, for legally prescribed drugs, the fact that you took a certain medication legally is not necessarily a defense, especially if the dosage in your bloodstream appears higher than prescribed. It is illegal to drive under the influence of any substance, even if consumption of the substance is legal. However, the blood test may show that the amount of a particular medication in your blood is within the “therapeutic” levels prescribed by your doctor. In this case, an experienced attorney can work with a pharmacology expert to explain this distinction between “therapeutic” and “impairing” levels to a jury.
Certain medications, when combined with alcohol, react in different ways. Some may result in a higher level of impairment while others would have less of an effect on a person's ability to drive safely. Additionally, most people, including those who serve on juries, are unaware that perfectly normal, legal substances (such as cough medicines or even poppy seed muffins) can result in a false positive on a drug test. While expert testimony may be necessary to explain these facts to a jury, an attorney, can be trained to use this information to help during plea negotiations.
An experienced DUI-Drugs Attorney knows that the mere presence of a prescription medication in your blood does not mean that you are guilty of DUI. The State still must prove that the medication rendered you an unsafe driver. Your attorney will examine all the evidence against you, how to question police officers about whether you were an unsafe driver, and how to guide expert testimony to achieve the best possible defense in your case.
Prescription Drug DUI Cases will become more prevalent as out population ages. Never assume guilt.
Conviction for DUI-Drugs Can Have Serious Consequences, So Don't Do It Alone:
A first conviction for DUI-Drugs in 10 years will result in a minimum of 24 hours in jail, a fine of at least $300, 12 months on probation, completion of 40 hours of community service, DUI school, and a clinical drug and alcohol evaluation. These are the minimums allowed by law; many jurisdictions punish much more harshly. You are also facing a suspension of your driving privileges, potentially lasting up to one year (although, depending on the circumstances of your arrest, limited permits may be available). A six (6) month driver's license suspension is very common in DUI-Drugs cases.
A second conviction for DUI-Drugs in 10 years will result in a minimum of 72 hours in jail, a fine of at least $600, 12 months on probation, completion of 30 days of community service, DUI school, and a clinical drug and alcohol evaluation. With a second DUI, you will be facing a period of “hard suspension” of your license, meaning no limited work permits are available.
If you have been charged with possession of a controlled substance along with your DUI-Drugs charge, you are facing more stringent consequences. This is because, under O.C.G.A. § 40-5-75, a conviction for possession of a controlled substance results in its own 6-month license suspension. This suspension runs consecutively with any other license suspension.
If You Have Been Charged With DUI-Drugs, You Need Competent and Caring Counsel:
If you have been arrested for DUI-Drugs, what does all this this mean for you? It means that you need an attorney who is experienced in defending DUI-Drugs cases. It is important to remember that currently most officers receive little training in drug recognition, and that even trained officers are not perfect. Further, even if a chemical test was done, the sample may be flawed. Most attorneys concede defeat when faced with a positive drug test, without looking at whether there was any actual impairment.
Richard Lawson knows better. He has co-authored a book on DUI-Drugs and DUI-Prescription Drugs, and has 20 years of experience defending DUI-Drug cases in Georgia. He will examine every piece of evidence, from arrest reports and videos to lab reports, to determine whether field sobriety testing was done properly, whether chemical testing is valid, and whether there is any evidence is actual impairment.
When choosing an attorney to defend your DUI-Drugs case, you cannot afford a “general practitioner.” You need a specialist who is acutely aware of both the science and the law of a DUI-Drugs cases in Georgia. Give yourself the opportunity to succeed.
Call Now For Immediate Attention to Your DUI Drug Case in Georgia:
Your Case will not defend itself. There are defenses to drug-related DUI in Georgia. Call our office now to discuss your case. We are always available to help 7 days a week, 365 days a year. Your case can be defended but will not defend itself. No one is automatically Guilty. There is hope in every case. There are always alternatives. Talk to a Georgia DUI Drugs Lawyer today.