THE NEW O’LEVIK/PLEVIK DUI CASE SIMPLIFIED

You may have seen or heard about the new Georgia Supreme Court decision last week Olevik v. State. The case involved a Defendant actually named “Plevik.” The Court documents incorrectly spelled Plevik with an “O”, hence the case name “Olevik.”

The issues in Olevik were:

  1. Is the Georgia Implied Consent law unconstitutional, both on its face and as applied? No
  2. Does a person arrested for DUI in Georgia have a constitutional right to refuse a request for a state chemical breath test? How about blood? Yes and Yes
  3. Is the act of blowing into the Intoxilyzer machine protected under the Georgia Constitution prohibition against compelling someone perform an act which might incriminate themselves? Yes
  4. Is a warrantless breath test incident to a lawful arrest a violation of the right to unreasonable searches under 4th amendment and equivalent provision in the Georgia Constitution? No
  5. If a person does take a breath test after arrest, what must the State show to have the breath test admitted into evidence and show that the Georgia Constitution’s prohibition against compelling a Defendant to say or do something which might incriminate him has not been violated? That the person voluntarily “consented” to take the test and was not coerced or forced into doing so, just like the criteria used in Williams for blood tests. 

Note that this case was talking about our rights under the Georgia Constitution, not the 5th Amendment to the US Constitution. The Plevik case basically said that under the Georgia Constitution, Art. I, Sec. I, Par. XVI, a person under arrest for DUI cannot be forced to blow into the state breath test machine, although he CAN voluntarily waive his right and consent to blow into the machine. He also has a right to refuse to take the test under the same provision in the Georgia Constitution.

In the next few weeks I will be sending a revised “4 Simple Rules” to my client list. One of the rules will be: You have a Constitutional right in Georgia to refuse the State administered test; although you could still face a civil penalty of one year license suspension, you could also opt for a one year limited permit with Interlock Device, and could then fight your DUI charge with the State having no blood alcohol test and with no field sobriety evaluations.

 

 

Sign Me Up as An Expert Witness!

In the recent case of Smith v. State, decided on September 19, 2017, the Court of Appeals affirmed a trial court’s decision to allow a police officer investigating this case to testify as an “expert” in interviewing witnesses to a crime.

Under Georgia Evidence law, in criminal cases, the opinion of experts on any question of science, skill, trade or like question is admissible. “Expert opinion testimony on issues to be decided by a jury, even the ultimate issue, is admissible where the conclusion of the expert is one in which jurors would not ordinarily be able to draw for themselves. i.e., the conclusion is beyond the ken of the average layman.”

 

In Smith, one of the police officers who initially responded to the victims’ report of the robbery testified that he had been involved in “dozens upon dozens” of such cases, at which point, the State’s prosecutor asked: “Okay, what do you typically expect out of eyewitnesses to some sort of crime? Would you talk to us a bit about that?” Smith’s counsel objected, arguing that the officer was not an expert in this area and that he would have to be an expert in order to respond to that type of question. The trial court then asked the State to provide a foundation for the officer’s expertise, and thereafter, the officer testified that he had eleven years of experience with the police department; had taken the basic POST mandates and “dozens and dozens” of other classes, including courses pertaining to interviewing and interrogating. The officer also reiterated that he had significant experience investigating crimes such as the one at issue and had testified on multiple occasions regarding such investigations.

Following this testimony, the State’s prosecutor moved for the officer to be accepted “[a]s an expert in basically the field of investigations, being able to talk to witnesses and have an opinion about what you’re looking for and what you’d expect when you talk to witnesses.” Smith’s counsel, again, objected, arguing that the State had not laid the proper foundation. But the trial court disagreed and overruled the objection.

Afterwards, the officer basically testified that, per his training, he found that, when you had multiple witnesses such as in this case, there were always inconsistencies and the truth was “somewhere in between.”

Now how this testimony was “beyond the ken of the average layman” such that it made this officer an expert is beyond me, but the truth is that generally speaking, jurors tend to give more weight to the testimony of an expert as opposed to a non- expert. So even though the officer did not attempt to “bolster” his evidence by testifying as an expert, the result was in fact that his “expertness” probably did bolster his credibility with the jury.

In light of Smith, I now offer my services as an expert with 37 years experience in:

  1. Jury Trials From Start to Finish
  2. Judges
  3. Juror selection
  4. Truthfulness of police and government witnesses
  5. Field Sobriety tests
  6. Intox tests
  7. The U.S. Constitution
  8. The Georgia Constitution

And any other criminal/trial strategy or procedure. Call me if you are looking for an “expert”!

 

 

5 THINGS COPS DON’T TELL YOU IN A TRAFFIC STOP

If you drive a car for any period of time, chances are good that you will be stopped at some time by a police officer. If the cop suspects that you have been drinking, there are 5 things he/she will not tell you during their detention:

  1. Once they smell what they believe to be alcohol, they are like sharks smelling blood. Their focus becomes ENTIRELY on forming an opinion that you are DUI.
  2. They ask you if you have been drinking for 2 reasons: If you deny drinking and later it is determined that you have been drinking, they use your denial against you in court; If you admit drinking, they use it against you in court.
  3. They will not tell you that the Field Sobriety Evaluations will be used against you as evidence to prove you guilty of DUI.
  4. They will not tell you that the portable breath test (alco sensor) on the scene gives the officer a numerical readout of your blood alcohol level. Using that number allows him to form an opinion that he should arrest you for DUI.
  5. They will not tell you that if you take the State breath test and register above the legal limit (which is currently .08 grams/210 liters), you are automatically deemed to be DUI, and the burden shifts to you to prove your innocence.

While you need to cooperate with the officer in giving them your license, and in following instructions of getting out of your car, you do NOT have to provide evidence which they can use at a later date to convict you of DUI. Remember that a DUI is an opinion crime, in that the officer forms an opinion, based on his interpretation of the evidence, that you are DUI. Keep these in mind if you are stopped by the police, and if you are arrested for DUI or any other serious traffic violations, contact me at www.mickeyroberts.com .

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.