Winning Strategies in Georgia DUI Cases

Posted by Richard Lawson | Nov 03, 2012 | 0 Comments

Ten Winning Strategies in Georgia DUI Cases

Even if there is significant evidence against you, procedures during the stop and subsequent arrest may not have been correctly followed and certain evidence may be challenged so that it is inadmissible at trial and cannot be used against you or may even lead to a dismissal of all charges. The following are 10 examples of winning strategies in Georgia DUI defense.

As a Georgia DUI Attorney we will:

1.     Challenging the Traffic Stop

The most common reason an officer will stop your vehicle will be due to you committing a traffic offense such as speeding, improper lane change, an equipment violation, or expired registration.  Many people are stopped for improper lane change but turn signals are only required in certain traffic conditions and so a turn signal may not have been necessary in your case. Even if you committed a traffic violation, the officer may have illegally expanded the scope of his investigation or detained you longer than necessary. If the original reason for the traffic stop is successfully challenged, the Georgia DUI charges may be dismissed.

2.     Challenging Suspicion to Stop

To be constitutional, police can only conduct a brief detention based on a particularized and objective basis of criminal activity.  Some examples of what constitute “articulable suspicion” of DUI, but are not traffic violations, include weaving within one’s lane, driving too slowly, erratic braking or using turn signals without turning, and executing a U-turn prior to a roadside checkpoint.  A police 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.

3.     Challenging Evidence that You Were Driving

You must have been driving or in actual physical control of a moving vehicle while under the influence of alcohol in order to support a charge of DUI.  If you were in a parked car when the officers approached you, you may be able to challenge the fact that you had actually been driving.  In many cases, the police come to a person’s home after the person was reported for a Hit & Run and it may be difficult for the State to prove that you had been drinking prior to arriving at your home.

4.     Challenging the Field Sobriety Tests

There are many circumstances that could allow for the field sobriety tests to be suppressed and inadmissible as evidence against you at trial.  Law enforcement officers must be properly trained and certified in field sobriety testing and must observe specific clues.  A medical screening must be completed prior to administering the field sobriety tests as many pre-existing injuries and illnesses can affect your performance on these test.  In addition, your ability to pass these tests can be affected by your weight, shoes, the weather, and roadside conditions. An attorney will challenge the circumstances of the testing conditions, the qualification of the law enforcement officer, the reliability and accuracy of the tests, and the subjective nature of the evaluations and how they are scored.

5.     Challenging Probable Cause to Arrest

The officer must have probable cause to believe you are a less safe driver due to alcohol impairment.  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. The officer can also use your responses to his questions and any other statements or admissions you make. If you were pulled over for a headlight or tag violation or another non-moving violation, it may be difficult for the State to show that you were less safe to drive without something more. Many of the officer’s observations of intoxication will only show a likelihood of the presence of alcohol but will not show that you were actually impaired, and more importantly, impaired to the point that you were a less safe driver.  If the evidence only shows that you were intoxicated but not to the extent of impairment, probable cause to arrest did not exist.  If no probable cause existed to legally arrest you, the arrest itself will be suppressed along with any chemical tests you submitted to.

6.     Challenging the Georgia Implied Consent Notice

If you are arrested in this state for DUI, Georgia DUI law requires you to submit to chemical testing of your breath, blood, or urine to determine the presence of alcohol or drugs. The arresting officer must read the appropriate Georgia Implied Consent Warning depending on your age or driver’s license status.  There are separate notices for drivers age 21 or over, drivers under age 21, and drivers of commercial vehicles. The notice can not be misleading and the officer cannot influence your decision in any way to take the requested test. In the absence of extenuating circumstances making it impractical, the implied consent notice must be read in its entirety and at the time of arrest. The officer should not wait until you have arrived at the police station or hospital to request testing, but certain exigent circumstances may excuse a delayed advisement of your implied consent rights.

7.     Challenging the Breath Test.

If you consent to take the State breath test, Georgia law requires you to provide two sequential breath samples, and the State cannot demand more than two breath samples. The results of the test must be within 0.020 grams percent of each other, otherwise the results are inadmissible at trial.  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 also lead to false positive breath test readings.  If you suffer from gastric reflux, any regurgitation could raise the level of mouth alcohol present within 20 minutes of submitting to a breath test.  The test must also be given within three hours of driving.  If the test was given outside of this window, the test is inadmissible.

8.     Challenging the Blood 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. If you were charged with DUI Marijuana, you may be able to challenge the types of metabolites that were found in your blood.  Not all marijuana metabolites are psychoactive and would not impair your ability to drive.

9.     Challenging the Refusal

If you refuse to take the State’s test, your refusal can be offered into evidence against you at trial.  Your refusal creates an inference that a test would have shown the presence of alcohol, but does not create an inference that you were impaired. However, if you were not adequately advised of your implied consent rights or if the arresting officer misled you in any way as to the consequences of refusing the State’s test, your refusal may be suppressed and inadmissible at trial.  After initially refusing to take a chemical test, you can subsequently consent to testing. If you did, and the officer did not allow you to take the test and had no reason not to allow it, your refusal may be invalidated and then cannot be used against you.

10.  Challenging the Denial of an Independent Test

The officer must make reasonable efforts to accommodate you in obtaining an independent test.  If the officer prevents you from obtaining an independent test after you have requested one, the results of the State test you submitted to can be suppressed and not admissible as evidence against you at trial. 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. You must be able to pay for the test at the time of testing, but the officer must also allow you a reasonable opportunity to make arrangements personally to obtain those funds and locate your desired testing facility. That may include being taken to a nearby ATM to get sufficient cash or being allowed to use your cell phone to locate a hospital that would accept a credit card.

Act Now!!

As you can see these defenses take a top-rated Georgia DUI Lawyer to present.  We are available 24 hours a day, 7 days a week to help.  Contact us today!

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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Georgia DUI Defense Attorneys

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