WHY YOU SHOULD NEVER CONSENT TO A SEARCH OF YOUR CAR

The 4th Amendment protects us from unreasonable searches of our bodies, homes, and cars, among other things. There seems to be an epidemic of cases where police officers stop someone for a minor traffic violation , then pressures the driver into consenting to a search of their car. Of course we only know of cases where drugs have been found; those are the cases we see in the appellate courts. Who knows how many times cops have searched vehicles and found nothing?

I am sure you have seen cars stopped by police while traveling on our expressways. Because of my law practice, I pay particular attention when I see these instances; even thought I may be traveling by at a fast speed, when I pass a stopped car and I see officers searching the car, I pay close attention. Many times, quite frankly, the drivers are either black or Hispanic.

No doubt these police officers are “profiling” drivers of color; they pull over the drivers on minor traffic offenses (or make one up), with the express intention of searching the car for drugs. This is the routine: cop pulls you over, say, for speeding; takes your license, and after having checked on your license status comes back and asks if he/she can search car for drugs. If you say “no”, the officer threatens you. The officer may ask you why you are exercising your rights, and ultimately will threaten to “bring the drug dog” if you will not give consent to search.

Fortunately, the Georgia Appellate courts have sided with our Forefathers in upholding the 4th Amendment in these cases. In the past 12 months alone, the Georgia Appeals Courts have reversed 4 or 5 trial courts who have ruled these searches as legal.

You might say, “well I don’t carry illegal drugs in my car, so who cares?. As a middle aged white car who doesn’t fit the profile of a drug courier, I really don’t have much expectation that a cop will ask if he can search my car. But if you have children, and especially if you are black or Latino, the truth is that there is a high likelihood that at some point in time they will be stopped and will be asked to consent to a search.

I recently won a motion to throw out such a search, where my 20 year old client was stopped for a brake light being out; she had not been drinking, nor was there any evidence which would have indicated she had any drugs in her car. After 28 minutes of threats by the officer, who eventually called a drug dog, my client “consented” to a search; a half pill of methadone was found in the car; this was a car that had been used by several members of her family, so in reality she did not know what was in her car. Because the stop was for a brake light, and because there was no probable cause to prolong the stop and ask for a search, the case was thrown out against my client.

In addition to DUI defense, I handle any case involving the stop of vehicles by police, including felony drug cases.

 

 

No Right To Independent Test If You Refuse State Test

In the recent case of Hynes v. St., decided on May 31, 2017, the Georgia Court of Appeals was asked to determine the following: If a person is arrested for DUI, then refuses to take a State chemical test, and, pursuant to a search warrant, his blood is drawn, is he then entitled to an “independent” test of his own choosing?

Hynes was stopped and eventually arrested for DUI. The officer read Hynes the Implied Consent notice, which must be read to a suspected DUI driver before the State can ask the suspect to submit to a State test of his blood, breath or urine. Under Implied Consent law, once a suspect submits to the State test(s), he is THEN entitled to an independent test of his choosing.

In this case, Hynes refused to take the State blood test, asking instead for an “independent test.” The officer then obtained a search warrant for Hynes’ blood, which was taken pursuant to the search warrant.

Hynes filed a motion to exclude the blood test on the grounds that since he did not get his “independent” test, the State’s test was not admissible.

HOWEVER, the law in Georgia is that you are only entitled to a independent test if you take the State’s test as requested by the officer after reading you the Implied Consent notice. In this case, since Hynes did not take the State test, he was not entitled to an independent test, even if the State obtained his blood pursuant to a search warrant.

So the lesson is that if you take the test(s) the officer wants you to take, the officer then has an obligation to reasonably accommodate your request for an independent test; but if you refuse his request, you are not entitled to your own test.

Under the new Georgia law on Implied Consent, you have 30 calendar days to decide whether to ask for a hearing, or have an Interlock Device placed on your car for 12 months with a limited permit.  It is imperative that a qualified experienced DUI lawyer investigate the facts on your case so you can make a competent well  informed decision.

 

 

GA Law on Taking State Chemical Tests Changes July 1!

You need to know about a change in the law regarding taking state chemical tests after being arrested for DUI. This change takes affect on July 1, 2017.

Currently, if you are arrested for DUI and either take the test and register above the legal limit, OR if you refuse the test, your license can be “administratively” suspended for either 4 months (if you take the test) or one year (refusal), prior to ever going to court on the actual DUI charge. You have 10 business days to request a hearing with Drivers Services to try and keep your license from being suspended.

Beginning July 1, this will be the law:

For a 1st DUI arrest in 5 years, whether you take the test or refuse the test, you may opt to obtain an Interlock Ignition Device on your car, which is valid for one year; OR you can opt for a hearing by sending in a request to DDS, along with a $150 fee, within 30 calendar days of the date you receive notice of the officer’s intent to proceed with an administrative hearing.

If you take the test, and opt for a hearing, your license is administratively suspended for 30 days, after which you can get license reinstatement. If you are acquitted of the DUI or the charges are reduced, your limited permit is revoked and your license is reinstated with no fee.

However, if you refuse testing and opt for a hearing, your license could be administratively suspended for a year without any possibility of a limited permit. If you waive your administrative hearing and opt for an Interlock device you can obtain a limited permit for a year. However, if you are acquitted of the DUI or the charges are reduced, you still must maintain an Interlock Device and limited permit for a year.

It appears that law has NOT changed for multiple DUI arrests in 5 years.

While installation and maintenance of Interlock Ignition Devices can be a real pain, this new law does give you the opportunity to either take the test and worst case get a limited permit for 120 days, OR refuse the test and know that you will have a limited permit for a year, regardless of whether you win your case or not.

Bicycling on the rise, so are bike injuries

There has been a resurgence of bicycle riding in American cities for several years now. Bike lanes and share the road efforts have been underway literally in every state in our nation. Bicycle ride sharing has become popular in many American cities, including Atlanta.

City riding is not the only cycling that has been on the rise in recent years. Longer cycling adventures, not just city riding or day rides, are also a big part of cycling in America.

If you are considering a long or a shorter ride, lots of information is available these days to make your ride more comfortable and safe. Bike riding on a long ride requires planning, but rest assured there are many others out there who have gathered lots of information for avid cyclists to review before getting out on a major ride.

There are many options these days for bike riders who have decided to venture out on a longer ride across states. A good resource is Adventure Cycling Association. Maps and routes can be found on their website. One of the best things about these routes and maps is that they have been traversed by many riders before you. You can get your hands on either print or digital formats for ease of use on your ride.

Those who have done big rides before say it is really important to plan, but equally important to be flexible. A major bike ride can be the joy of a lifetime and planning and preparation are important to that. As with all travel, things can happen that are not expected, so those in the know remind cyclists to go with the flow and embrace the unexpected as part of the experience. If you need a repair or a part, or if you left something back home, dealing with those experiences can be a quirky and yet positive part of the journey.

Mickey G. Roberts, PC is proud to support the cycling and biking community in Atlanta and across Georgia. Please ride safely. In the unfortunate event of an accident or injury of any kind and you have a need for legal guidance, we are here to answer questions and to advise you on your legal rights. We are experienced with the issues involved in cycling and biking injury matters and can help you and your family sort through the challenges presented after an accident. Please feel free to contact us at any time for a consultation at no charge to you.More

Georgia Low THC Oil Law Amended

Georgia lawmakers managed to pass a meaningful expansion of the two year-old cannabis oil law by adding several new qualifying conditions and making it easier for some patients with a current qualifying condition to receive certification, although in-state cultivation is still off the table (for now).

The law was signed by the governor on May 7, and will mean patients who suffer from Tourette’s Syndrome, Autism and other medical conditions that have shown promise with the treatment of medical marijuana will now qualify for certification under Georgia’s Low THC Oil program. In addition, patients who are under the care of a Georgia hospice will also qualify for cannabis oil. Specifically, patients with the following medical conditions will now qualify for a low THC oil card:

  1. Cancer, when the disease is severe or end stage OR treatment produces wasting or nausea and vomiting
  2. ALS (severe or end stage)
  3. Seizure disorders related to epilepsy or head trauma
  4. MS (severe or end stage)
  5. Crohn’s disease
  6. Mitochondrial disease
  7. Parkinson’s disease (severe or end stage)
  8. Sickle Cell disease (severe or end stage)
  9. Tourette’s Syndrome (severe)
  10. Autism (all patients over 18 qualify, under 18 must be diagnosed as severe)
  11. Epidermolysis bullosa
  12. Alzheimer’s disease (severe or end stage)
  13. AIDS (severe or end stage)
  14. Peripheral neuropathy (severe or end stage)

In addition to the new conditions listed above, SB16 makes other changes to Georgia’s low THC oil law, including:

  • Removes the one-year residency requirement.
  • Allows certification for patients that are in either an inpatient or outpatient hospice program, regardless of diagnosis.
  • Requires semi-annual reporting by recommending physicians to include the level of THC in the oil the patient has been taking.
  • Provides reciprocity for qualified patients from other states that allow the patient to possess low THC oil

MORE TO DO:

The law did not include a mechanism for in-state cannabis cultivation or cannabis oil production, as well as the exclusion of conditions like PTSD and Fibromyalgia. Rep. Alan Peake offered a separate resolution earlier in the legislative session  that would have given Georgia voters a say on the issue of in-state cultivation but it was defeated in the House.

If you or your loved ones suffer from the above medical conditions and need more information, you can contact me or go to georgiacannabis.org

 

 

When Cops Lie

The recent case in Gwinnett County, Georgia, involving the firing of two officers , is troubling in many ways. The incident shows why we need body cameras on all police officers in this country, and it also shows the absolute need for citizens to vigilantly record police encounters.

Sergant Michael Bongiovanni stopped Demetrius Hollins for a minor traffic violation. According to Bongiovanni’s incident report, Hollins was so uncooperative that he (Bongiovanni) tasered Hollins. A citizen witness videotaped a second officer, Robert McDonald, stomping on Hollins’ head after Hollins was lying on the ground handcuffed. McDonald was summarily fired by the Gwinnett County Police Department.

Later, a second video surfaced which showed what had actually happened before McDonald arrived on scene: Hollins was out of his car, both hands raised, when Bongiovanni punched him in the face, knocking him down. There was absolutely no justification, at least by viewing the video, that any reasonable person could say Bongiovanni acted properly. In fact, what we see is a crime, either of simple battery, but more than likely a felony of aggravated assault.

It sickens me that an officer would act this way, but more than that, it sickens me that Bongiovanni would lie in his report, not only throwing McDonald under the bus, but lying to save his own hide.

I am saddened by this incident. On the whole most Gwinnett officers are professional and do their jobs. But there are 2 really important lessons that come from this incident:

  1. Police must do a better job “policing” their own. Over his 17 year career, Bongiovanni had numerous “use of force” complaints, all of which had been dismissed by GCPD. When there are numerous use of force complaints filed by average citizens, that should be a red flag causing police supervisors to more closely scrutinize the officer.
  2. This incident once again undermines the trust we have in our police and in our criminal justice system. And when the citizenry loses trust in its institutions, the entire system is in danger of breaking down.

The Gwinnett solicitor, Rosanna Szabo, dismissed 89 cases involving arrests made by Bongiovanni and McDonald. Good for her; there is no way the officers credibility, especially Bongiovanni, would have been believed by any fair minded, reasonable juror.

In our criminal justice system, the “players”: police, judges, prosecutors and defense lawyers, all have roles to play. All are considered “officers” of the court. ALL are, and should be, held to higher ethical standards than the citizen not engaged in the criminal justice system. When any of these people act in an unethical manner, it undermines the very foundation of a fair, balanced system, and those unethical actions must be punished accordingly.

 

 

 

 

Charged With Serious Injury or Vehicular Homicide? What You Should Do First:

I hope you never find yourself in any of these situations: You are leaving a wedding, end up in an accident, and the other person in your car dies; you are going home after a long day at work, fall asleep, run off the road, hit a tree and your child receives stitches; you are driving your car in a parking lot and a young child runs in front of you; you hit the child, injuring her, and even though you had had only 2 beers, are charged with DUI/ serious injury.

I have represented people in all of those situations, all ending up with positive results; these were basically normal, good, decent, folks who, for whatever reason, had an accident in which someone died or sustained a “serious injury. When that happens, a case can go from being a misdemeanor, with possible punishment up to a year in jail, to a felony with prison up to 15 years!

Should you find yourself charged with such a crime there are some things to should do IMMEDIATELY:

  1. At the scene, do not admit to anything or say anything to witnesses or the police;
  2. Do not agree to perform field sobriety evaluations;
  3. Do not agree to any breath test on the side of the road;
  4. Do not agree to any state administered chemical test, UNLESS you have had only one or two drinks;
  5. Exercise your rights against self-incrimination under Georgia law by refusing to answer police questions and also by asking for a lawyer;
  6. As soon as you can, get your car released from impound;
  7. As soon as possible, call a qualified, experienced lawyer.

There are numerous reasons to hire a qualified experienced Vehicular Homicide or Serious Injury lawyer , such as my self:

  1. I will obtain the initial police report and police training record immediately;
  2. I will have an accident reconstructionist onboard as soon as possible, to take a look at the accident scene and your car;
  3. I will proceed, if necessary, to apply for bond immediately;
  4. I will then recommend a plan for you to help you with the case down the road, including, if necessary, an alcohol evaluation and treatment if necessary;
  5. Once I get the initial evidence I will outline a plan to aggressively defend the case.
  6. I have over 37 years of experience in handling these types of cases.

A conviction for felony vehicular homicide and for serious injury by vehicle can have a devastating impact on your life and the lives of your family; it is urgent that you act fast in obtaining qualified legal representation.

 

 

WHAT TO DO IF YOUR’E IN AN ACCIDENT

If you are involved in an auto or cycling accident with another party, whether you are injured or not, you should always call 911 and report the accident. Failure to stop and provide information in accident, where there is damage to any vehicle, is a crime, called by various names, including hit and run, and depending on the charge can result in driver’s license suspension. If you are involved in an accident with damage, DO NOT let the other driver talk you out of calling the police.

 

Do not agree with the other party to an arrangement that does not involve calling the police, because by calling the police, there will at least be an official accident report. If you need to file a personal injury or property damage claim against the other driver, a police report is essential.

 

In addition to police accident reports, EMS reports can be helpful in a later personal injury claim.

Also, as soon as possible, obtain the following information:

  1. the other driver’s name, address, phone, email and any other contact information;
  2. the other driver’s insurance company’s name, telephone number, and policy number;
  3. names and contact information of any witnesses;
  4. your immediate thoughts and observations;
  5. take photos of the accident scene, your injuries and damage to the cars;

In building a personal injury, money damage, claim against a negligent party, the initial few minutes after an accident can be crucial; even if you don’t think you are injured, if you do not call the police, EMS, etc., and at least have an official report, your case becomes much harder to prove.

If you have been hurt in an accident, whether involving a car, motorcycle, truck, or bicycle, my team can help you obtain the maximum recovery you deserve.

Call Georgia injury attorney Mickey Roberts at 678-775-6843 for a free evaluation of your case today!

 

 

Georgia Senate Passes “Driverless” Car Law

On March 3, 2017 the Georgia Senate unanimously passed a law authorizing the operation of so called “automated” motor vehicles. The bill still needs to get through the House for final approval before being sent to Governor Deal.

The Senate bill defines “Automated Driving System (ADS) as hardware and software that collectively is capable of operating all aspects of “dynamic driving tasks” without the supervision of a human operator.

Dynamic driving tasks means the operational aspects, including steering, braking, accelerating, and monitoring of a vehicle, and tactical aspects, including responding to events, determining when to change lanes, turning, using signals, and other related activities.

The law would also exempt any person who is in an automated motor vehicle while the ADS is engaged, from needing a drivers license.

The law provides that a motor vehicle with the ADS engaged does NOT have to have a human present while it is operating on the highways of this state, although the owner has to ensure that the car is being operated in compliance with Georgia laws, maintains liability insurance, and is properly registered.

I haven’t heard whether this law has any chance of passing this year, but it does seem that automated vehicles will be here sooner than later, and will bring along with them all sorts of legal issues, some known and some unknown. Stay tuned….

 

 

 

Search of Backpack Ruled Illegal

 

The 4th Amendment prohibits the government from “unreasonable” search and seizure of your person, houses, papers, and effects. A search can either be obtained with a search warrant obtained by the police from a magistrate, or can be a “warrantless” search, which can occur if the cop has probable cause to search, obtains consent to search, or there are exigent circumstances where it would take too long to obtain a search warrant. The various things that can be searched in current times are unlimited. When contraband is found as a result of a warrantless search, many times a “Motion to Suppress” is filed with the court asking the court to exclude the contraband from evidence.

Search cases almost always are decided on a factual case by case basis. A recent Georgia case, State v. Cook , decided in July, 2016, involved the warrantless search of a person’s backpack.

Nekia Cook was involved in an accident and taken to Grady Hospital. Security officers noticed an odor of marijuana coming from Cook’s backpack, confiscated the bag, and searched it. Inside they found a mason jar full of marijuana. The security officers called the Atlanta Police, who searched the bag without obtaining a warrant.

A warrantless search is presumed to be invalid, and the State has the burden of proving otherwise. At the hearing to suppress the marijuana evidence, the only person to testify was the Atlanta cop; the security officers did not testify. The Atlanta officer had no personal knowledge of what the security officers had seen, nor did the Atlanta officer smell marijuana himself,   nor did the APD officer include any such information in his report.

Since no evidence was presented by the State which would have given the APD cop reason to search the backpack, and since Cook neither consented to a search, nor were there exigent circumstances justifying a warrantless search, the evidence was obtained illegally and was suppressed from evidence.

For you, the important thing to remember is that you should NEVER consent to a search of your person, house, car, or personal property. The Constitution provides us certain protections from the government, and we need to use those protections. If you are charged with a crime involving drugs, you need an experienced, aggressive lawyer with knowledge of search and seizure law. Please do not hesitate to call me if you find yourself in such a situation.