MEDICAL RECORDS AND DUI CASES

One of the common questions I get in DUI cases with an accident is: “Can the State use my medical records against me at trial?”

The short answer is “yes”, under Georgia law, medical records may be introduced into evidence at trial pursuant to a valid subpoena from the State.

An example comes from the case of Samuels v. State, 325 Ga. App. 819, decided in April, 2016.

Samuels had been involved in an accident, was taken to the hospital, and subsequently prosecuted for a DUI. At trial, hospital records were admitted which stated that Samuels was “intoxicated” when she arrived at the emergency room. The records also indicated she had a history of alcohol abuse.

The Court of Appeals ruled that the medical records were properly admitted at trial, because the records were made to facilitate Samuels’ treatment, and were not made in anticipation of prosecution. The Georgia Supreme Court has specifically held that medical records created for treatment purposes are not “testimonial”, and hence are not subject to exclusion under Georgia’s evidence rules.

Of course, there may be HIPPA concerns on the part of the hospital, but the real question is whether the subpoena was proper, then if the medical records were originated because of treatment, and not in anticipation of being used as evidence in a future prosecution.

In the Samuels case, it appears the medical records were used to show the Ms. Samuels was intoxicated when she was admitted to the ER.

On the other hand, I have probably seen more cases where medical records do NOT indicate impairment or intoxication. Many times the medical records will indicate a person to be alert, their speech normal, being able to communicate properly, and so forth, when the police report indicates otherwise. Therefore the admissibility of medical records cuts both ways, and can be used by both the State and Defense in presenting evidence at trial.

 

 

 

The Difference between Battery, Simple Battery and Family Violence Battery

The Georgia law has two separate code sections which involve physical altercations between persons: simple battery and battery.

A “simple battery” is committed when a person intentionally makes contact of an “insulting or provoking” nature with another person, or intentionally causes harm to another.

A “battery” is committed when a person intentionally causes “substantial” physical harm or visible harm to another.

Generally, an example of a simple battery would be where a person shoves another.

An example of a battery, is when a person hits or touches another person to the extent that there is visibly bodily harm such as black eyes, swollen lips, bruises, etc.

Both simple battery and battery become “family battery” when the battery is committed against past or present spouses, person who are parents of the same child, stepparents, grandparents, children, etc, or other persons living in the same household.

Most of the battery cases we see are batteries involving spouses. While courts consider any physical harm to another as serious, in particular family violence cases are concerning to the State.

In most cases, the suspected batterer will be “restrained” from contacting the victim for a period of time. And if you are under such a retraining order and violate the Order, that can be considered another charge, and you could possibly be held in jail without bond!

There are several defenses to these types of cases and also ways to resolve these cases without going to trial.

It is important you hire lawyers who have special knowledge in defending these types of cases, from not only defending the criminal charge but also helping you with the Retraining Order.

For over 37 years, I have handled simple battery, battery, Family violence cases, as well as aggravated assault cases, with much success.

If you find yourself in such a situation, please call for a free consult.

 

 

He Had The Right to Remain Silent: He Didn’t

The recent case of King v. State, decided on October 17, 2016, provides wan example of why you should never volunteer information to the police about prior DUIs while under investigation for another DUI.

King was encountered by Henry County police, standing outside of his Jeep, which was pulled off the road with flashers on and hood up. The officer noticed King was a little unsteady, his speech was slurred and he smelled strongly of alcohol. The officer also located an unopened 24 oz. can of beer in King’s car.

Because of health issues no standard field tests were administered, but King was asked to say his ABCs, which he was unable to do. Because of King’s physical appearance, the officer placed King under arrest.

The officer then read King the Implied Consent warning, during which King stated that he was familiar with the implied consent warning because he had a prior DUI. King consented to a breath test, but after the officer placed him in the back of the police car, he began to complain of back pain and indicated that he wanted an ambulance. The officer called for medical assistance and King was transported to the hospital by ambulance. Accordingly, the breath test was not performed, but King later consented to a blood test, which showed a blood alcohol level of .307.

At trial, the State introduced evidence of King’s statement, and the Defense objected on grounds that the statement would introduce character evidence, which generally is inadmissible unless the Defendant presents evidence of good character first. The trial court allowed King’s statement about having a prior DUI into evidence and the Court of Appeals affirmed:

“As found by the trial court, the prior DUI was relevant to King’s intent to drive while intoxicated, his defense at trial that the State had failed to prove that he had driven while intoxicated (as opposed to becoming intoxicated after stopping the vehicle by the side of the road), and “peculiarities about the investigation,” including why King suddenly developed back pain moments after consenting to a breath test.

We agree. A material issue in the State’s prosecution was intent and “because the same state of mind required for committing the prior act and the charged crimes, i.e., the general intent to drive while under the influence of alcohol,” evidence of King’s prior DUI was relevant to show King’s intent on this occasion.

Likewise, the relevance of the prior DUI was heightened because King’s defense was that he did not drive the vehicle while intoxicated, “making evidence that he had voluntarily driven under the influence of alcohol on a prior occasion all the more relevant because it tended to show that it was more likely that he intentionally did so on this occasion.”

So the lesson to be learned, besides not driving while intoxicated, is that you should never voluntarily provide information which the police can use against you at trial.

 

 

 

Arrested for DUI? Know your rights in Georgia!

Did you know that Georgia’s Constitutional provisions against self-incrimination provides more rights than the 5th Amendment to the U.S. Constitution? What you don’t know might hurt you, especially if you are placed under arrest for DUI.

 

You probably have heard about the 5th Amendment and the Miranda warning read to some folks after arrest. You know, “you have the right to remain silent. Anything you say may be used against you….”

Well in Georgia, if you are under arrest, you can invoke your right vs. self- incrimination to say or do anything which may incriminate you.

Georgia Courts have long held that our Constitution protects one under arrest from doing an act vs. his/her will, which is incriminating in nature.

 

Please understand: this right is only invoked AFTER arrest; so Georgia courts have also held that one does not have to be read his “rights” Field Sobriety Evaluations are administered. Although of course you can and should always refuse to do these, as they are voluntary.

 

However, once you are arrested and charged with DUI, you can invoke your right vs. self- incrimination. This means you are informing the cop that you do not wish to do anything (which includes blowing into a breath machine at the jail) which could incriminate you.

 

In June 2016, 3 DUI cases were decided by the U.S. Supreme Court, under the heading of Birchfield. In these cases, the Court said in essence that the 4th amendment does not permit warrantless blood tests. In other words, without the consent of the accused, the cop should obtain a search warrant before drawing blood. However, the Court said that breath tests should be treated like any search AFTER arrest, and therefore the 4th Amendment prohibition vs. unreasonable searches does not apply; however, it would seem that the right vs. self=incrimination under the Ga. Constitution WOULD apply, because a person under arrest was being told they were “required” to perform an act which might incriminate them.

 

Something to consider if you find yourself under arrest for DUI and being told you have to do a breath test.

 

 

Georgia Traffic Deaths Increase: Be Safe This Labor Day Weekend

According to recently released reports from NHSTA, traffic deaths across the U.S. rose by 7.2 percent in 2015 compared to 2014.

Georgia had an increase of 45 traffic fatalities with a total of 701. Georgia is ranked 17th in per capita fatalities.

The 35,092 fatalities across the U.S. in 2015 ended a downward trend that began in 2005. The data also found:

  1. Traffic deaths resulting from intoxicated drivers increased by 3.2%.
  2. Traffic deaths caused by distracted drivers increased by 8/8%.
  3. The number of people injured in traffic accidents increased by 105,000 to more than 2.4 million.

While NHSTA reports that more people were driving due to job growth and lower gas prices, the fact remains that many of these fatalities could have been avoided had a driver chose not to drink then drive, or had chosen to remain vigilant while driving.

This weekend there will be many vehicles on the roadways. You can hopefully arrive alive by doing the following:

  1. do not drink alcohol then drive;
  2. use a designated driver;
  3. put the mobile device away while driving; don’t drive distracted;
  4. pay attention to your speed.

If your loved one is killed in a traffic accident, you may have a legal cause of action known as a “Wrongful Death” Claim. My team of lawyers has handled numerous Wrongful Death cases, and will work tirelessly to guide our clients through the legal process, with an unsurpassed tenaciousness and commitment for the best outcomes possible. Call me if you have any questions about a Wrongful Death Claim, or any other injury claim you or your loved ones may have.

Be Safe this Weekend!

 

 

 

Another Reason to Refuse Field Sobriety Exams

For those of you who have followed my advice for years, you know that one the “rules” if stopped by the police is: You never submit to the roadside field tests.

Police who think you may be DUI will normally say that they would like for you to take the roadside field tests so they “determine if you are safe to drive.” Which of course is complete BS! In reality the cops are gathering evidence to use against you in court.

On August 1, 2016, the Ga. Court of Appeals gave us one more reason to refuse these field sobriety tests. One of the roadside tests is the Horizontal Gaze Nystagmus, or HGN. This is where the cop watches your eye as it follows his pen or finger, and if your eye “jerks” at certain intervals, his training tells him that your “blood alcohol content” (BAC) could be above a .08.

Now, there is really no valid scientific studies which have shown that One can tell a person’s BAC through the use of the HGN. In fact, most doctors will tell you they are not taught such drivel in medical school. In spite of that, however, there are studies, which were paid for by the Federal government, where police conducted the HGN on subjects and supposedly were able to show that, 67% of the time, the officer could correctly tell if a person’s BAC was above a .10.

There are conflicting studies when it comes to showing if the cops can tell if a person’s BAC is above a .08. And Georgia courts do NOT allow a cop to testify as to a specific BAC based on the HGN (because, in reality, there is no scientific method of doing so).

However, in the case of Spencer v. St. , decided on August 1, 2016, our Court of Appeals ruled that it is ok now for a cop to say, “based on my training, the presence of 4 or more “clues” on the HGN would indicate the person’s BAC is above a .08.” In Georgia, .08 is the legal limit.

What’s interesting about the Spencer case is that the cop found 4 out of a possible 6 clues; while there are police training manuals which say that 4 out of 6 clues indicates a BAC of above .08, there are also trainings (such as Drug Recognition Expert Training) which show that 4 out of 6 could indicate a BAC of as low as a .05! (which is below the legal limit)

Apparently Spencer’s trial lawyer did not use that as evidence to try to prove Spencer’s BAC could have been BELOW a .08.

In any event, this is just another reason why you should NEVER agree to submit to roadside field sobriety tests.

 

 

Watch Out for School Buses!

SCHOOLS ARE OPEN! WATCH OUT FOR SCHOOL BUSES!

With schools back in session, it’s time for the return of those all too familiar yellow school buses. Each year I get questions about when you should stop for a school bus. Here are 5 rules to remember about stopping or passing a school bus:

  1. Each school bus in GA must have visual signals which indicate to a driver that he/she cannot pass the bus; these include red lights, which are activated when the school bus door opens; buses also have “stop” signs which are located on the driver’s side of the bus.
  2. If you are going in the same direction as a bus, and the bus’ visual signals of stopping are on, stop and DO NOT pass the bus until all signals are off.
  3. If you are meeting a school bus coming in opposite direction, and the visual signals are on, STOP!
  4. The only time you are allowed to proceed without stopping are: if you are on a separate roadway, or if you are on a controlled access highway (median), the bus is stopped, and pedestrians are not permitted to cross the road.
  5. WHEN IN DOUBT, STOP!

Failure to stop for a school bus can either result in a civil penalty (($300 for first offense, $750 for second, $1000 for third), or if you receive a citation, can be a moving traffic violation punished by a fines in the same amount of the civil penalties above.

Your Right To an Independent Test Under the Implied Consent Law

The Georgia Implied Consent statute basically says that when a person is arrested for DUI, they have “impliedly consented” to provide the State with a sample of their blood, breath, urine or other bodily substance for the “purpose of determining if you are under the influence of alcohol or drugs.”

While there are, in my opinion, many Constitutional problems with requiring a person in Georgia to perform an act which could incriminate that person, today I wanted to discuss your “rights” under the Georgia Implied Consent Law.

After the arrest, the officer will read a section of the law to you. He will ask whether you will submit to a State chemical test of your breath (or blood or urine).

He will also inform you that, once you take the State test, you are entitled to an independent test, of your own choosing, by qualified personnel, of your blood, breath , urine or bodily substance.

HOWEVER, if you choose to take the State’s test, and then decide to have an independent test, you need to know the following:

  1. You must make a request that can be reasonably construed as a request for an independent test. Simply mentioning, say, prior to arrest, words such as, “ I will take a blood test”, may NOT be construed as such a request. You need to emphatically, more than once, say, “I would like an independent test of my blood, or breath, urine or other bodily substance.” Then you must designate which test(s) you choose.
  2. Once you make a request, the officer has to “reasonably accommodate such request.” Therefore, he must take you to the hospital of your choice for a blood test, provided, of course that your choice of hospital is reasonable. (you cannot request the officer to take you to a hospital an hour away); or he must get an independent breath test, or he must somehow figure out what “other” bodily substance can be tested.
  3. If you have made a valid request for an independent test, and the officer does not reasonably accommodate your request, then any State chemical test would be inadmissible in evidence against you.
  4. Remember: if you “refuse” to take the state test first, then not only can your license be suspended for a full year, you do not have the right to a chemical test of your choosing.

 

Mickey

What is Pre Trial Diversion?

There is a trend in the criminal justice system to treat certain types of non -violent crimes differently than in the past. In part because of overcrowding jails, there are now certain types of resolutions to criminal cases which do not involve incarceration, and also involve resolving cases without any adjudication of guilt.

You may have heard of something called a “Pretrial Diversion Program.” (PTD) What is a PTD and how does it work?

A pretrial diversion program is an agreement which is signed by a Defendant, Prosecutor, and Judge, which says that IF the Defendant does certain things within a specified time, the Prosecutor will ask the Judge to “nolle pros”(not prosecute) the case. PTD’s are generally available in misdemeanor cases, although some Counties in Georgia even allow PTDs in certain drug felony cases.

As an example, many counties now have PTD programs in cases involving underage possession of alcohol. They also have PTD programs involving misdemeanor marijuana possession.

PTDs are usually available to “first time offenders” as a way of allowing a chance to do something which will keep the offender from pleading guilty, being placed on probation, incarcerated, etc. Generally, a Defendant will agree to certain things within 90 to 120 days of signing the PTD agreement. Usually the defendant will pay a “program” fee of between $300 and $600, perform a certain amount of community service, and perhaps complete an alcohol and drug evaluation or DUI Risk Reduction School, as well as complete a certain number of alcohol and drug screens which must come back negative for any alcohol or illegal drugs.

While technically not placed on probation, the offender usually coordinates performance of the conditions of the agreement with a probation officer (PO) of the Court. If the offender completes the PTD satisfactorily, the PO notifies the prosecutor, who then asks the Court to dismiss the case. If the offender fails to complete the program satisfactorily, the PO notifies the prosecutor, and the charges are pursued through the normal court process.

The advantage to agreeing to a PTD is that once everything is completed, your charges are dismissed, AND any arrest record is “restricted” from public access.

While the disadvantage and risk of agreeing to a PTD and failing is minimal, the simple fact is that by NOT complying with the PTD, you have wasted a tremendous opportunity to have a criminal charge totally dismissed.

That is why, in most cases, if a PTD is available I encourage my clients to seriously consider taking advantage of such an opportunity.