On this 4th of July, it is important to remember the rights in our Constitution originated in the Declaration of Independence. I read the Declaration in the video below.
Birchfield v. ND, along with 2 other companion cases, was decided by the US Supreme Court on June 23, 2016. This ruling will have a major impact on DUI cases in Georgia.
There were 2 other cases along with Birchfield: Bernard v. Minnesota and Beylund v. Levi . All of the cases involved the issue of warrantless chemical tests after a DUI arrest.
Both North Dakota and Minnesota have Implied Consent laws making a refusal to submit to a state chemical test a separate crime.
Birchfield was arrested for DUI in North Dakota, read Implied Consent and refused to take a blood test.
Bernard was arrested for DUI in Minnesota, read Implied Consent, and refused to take a breath test.
Beylund was arrested for DUI in Minnesota, read Implied Consent, and consented to a blood test; however, his license was administratively suspended, which he appealed on grounds that he was coerced into giving his blood because a refusal is considered a separate crime under North Dakota law.
The Court, per J. Alito, reviewed the history of searches after an arrest in this country, even BEFORE the 4th Amendment was enacted.
“Legal scholars agree that the legitimacy of body searches as an adjunct to arrest had been thoroughly established in colonial times, so much so that their constitutionality could not be doubted, even in 1789.”
Yet, as technology has evolved, there are certain types of searches that the founding fathers could not have envisioned. One of these were cell phones, which the Court addressed in the Riley case; another area, the Court says, is blood and breath test searches.
In looking at whether warrantless blood and breath searches in DUI cases violate the 4th Amendment, the Court examined the degree to which they (the searches) intrude on an individual’s privacy and the degree to which they are needed for the promotion of legitimate governmental interests.
The Court holds:
- The 4th Amendment permits warrantless breath tests incident to arrest. “Breath tests do not implicate significant privacy concerns. They do not require piercing of the skin; and the act of both inserting a mouthpiece into one’s mouth, as well as blowing an amount of air, is not intrusive. Also, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath; and participation in a breath test is not an experience which is likely to cause a great deal of embarrassment.” Hence, Bernard’s denial of his motion to suppress was affirmed.
- The 4th Amendment does NOT permit warrantless blood tests incident to an arrest. Blood tests are a different matter-it requires penetrating the skin; it is significantly more intrusive than blowing into a tube- and blood also places In law enforcement a sample that can be preserved. Hence, Birchfield’s conviction was reversed.
- Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. In other words, it appears that a State cannot make it a crime for a person to refuse a blood test incident arrest. One can assume that, since warrantless breath tests are permissible, then a suspect could be charged with obstruction should they refuse to blow into a breath testing machine. This case was remanded back to North Dakota.
Going Forward: The vast majority of test cases in DUIs in Georgia are breath tests. Unless the officer suspects a person of being under the influence of drugs, there really now would be no reason for the officer to seek a search warrant for blood; instead, they can simply place the suspect under arrest, then request a breath test at the jail. If the suspect refuses to blow into the machine, that would be a separate offense of obstruction.
The Implied Consent warning, in my opinion, becomes superfluous except the State may still want to keep the civil penalty of license suspension for one who refuses to take a state breath test, and the warning could be legislatively changed to make it a crime to refuse a breath test.
I anticipate that we will now see more attacks on articulable suspicion, probable cause, or on attacking the breath test on procedural or evidentiary grounds. Perhaps we will see another “source code” attack on the Intox 9000. I also believe more Defendants will simply refuse to blow into the machine, and take their chances with obstruction charges and with license suspension.
Your Georgia driver’s license can be suspended for up to a year, with NO limited permit available, if you or your lawyer fails to send in a letter requesting a hearing with the Department of Driver Services (DDS) within 10 days after your arrest for Driving Under the Influence (DUI), according to a recent Georgia Court of Appeals case.
Under Georgia law, the license of any person charged with DUI can be “administratively” suspended by the DDS even before a person’s DUI case is resolved. After being arrested for DUI, if you register above a .08 (or .02 for drivers under age 21) on the State breath machine, or if you “refuse” to submit to a state chemical test, the arresting officer takes your license and gives you a copy of a “1205” form, which acts as a temporary driver’s license. He sends in your license and the original 1205 to DDS.
You then have 10 business days in which to send in a letter, along with the $150 filing fee, requesting a hearing on the issue of whether you will receive an administrative license suspension. If you fail to do so, your license is automatically suspended 30 days after the arrest for up to 1 year!
In the past, DDS has “waived” the 10 day requirement if they received the letter close to the deadline and the filing fee was submitted. That policy apparently changed last year, and this case, Mikell v. Hortenstine, decided in late 2015, now puts everyone on notice that the DDS does not mess around when it comes to deadlines. Look at the facts of this case:
An officer arrested Hortenstine for DUI on Sept. 25, 2014 and served him with a notice of suspension of his driver’s license. Hortenstine hired a traffic attorney 8 days before the deadline, BUT the attorney failed to send in the letter until the 11th business day, one day outside the time period!
The trial court had some compassion for Hortenstine, and found that since he had provided all of the information to his lawyer in a timely manner, the DDS could not suspend his license without a hearing. However, in a cold and heartless decision, our Court of Appeals said,
“Since the lawyer was acting as an agent for Hortenstine, and since we are bound by the acts of our agents, the fact that the letter was sent 11 business days instead of 10 precluded Hortenstine from having a hearing, and the license suspension is upheld.”
I suppose the moral of the story is that you need to:
- Hire a DUI lawyer as soon after your arrest as you can, and
- Make sure that your DUI lawyer is experienced as well as competent and can be trusted to get that letter in well before the 10-day deadline.
One of my recent cases shows why it is so important to consider filing a “Motion to Suppress” in every Driving Under the Influence (DUI) case. Many attorneys structure their fees to always include a motion to suppress. I don’t normally do this, because there may be some cases where even a motion to suppress is not called for, and in those cases, a defendant may pay more than necessary to resolve their case.
That being said, however, in MOST DUI cases it might be worth the money to consider filing a motion to suppress.
What is a Motion to Suppress?
A Motion to Suppress is a legal pleading which asks the Court to either throw out the case or throw out (suppress) evidence such as the State Breath Test. While the vast majority of motions to suppress are not granted, the mere fact of forcing the State’s witnesses to show up for court always renders the possibility of good things happening for a Defendant.
I tell my clients there are three potentially positive outcomes of going forward with a hearing on a Motion to Suppress:
- The State’s witnesses don’t show and you either win the case or force the State to offer a reduction of the charges.
- The State’s witnesses do show, and you are able to cross-examine them just like you would at a trial, which opens the possibility for some or all of the case to be thrown out.
- Even if the Court denies the Motion, it can sometimes show the State that their witness doesn’t testify as well as perhaps they would like, which gives the State pause to consider whether to go forward with the charges or offer a reduction.
How a Motion to Suppress Helped My Client
On this recent case, I had filed a Motion to Suppress which included a request to exclude a breath test due to 4th Amendment search issues. While the “stopping” officer did appear at the hearing, the arresting officer and breath test operator failed to show up. The Court indicated that it would not grant the State’s request for a continuance, meaning that if the hearing went forward, the State would not be able to prove the officer had “probable cause” for the arrest, and the entire case would be thrown out. Of course, the State could have also dismissed the case and re-accused the client within six months.
Based on the above, my client accepted an offer to plead to a reduced charge, which kept him from losing his job and also kept his license from being suspended.
A lawyer should consider a Motion to Suppress in every DUI case, although quite frankly, many attorneys rarely file these motions. That is why it is so important to hire a lawyer who is qualified and experienced specifically in DUI defense.
Georgia SB 100, which was passed in this year’s legislative session, changes several laws which previously had provided mandatory license suspensions. In particular, the offense of a minor in possession of alcohol and the offense of possession of drugs NO LONGER CARRY MANDATORY LICENSE SUSPENSIONS if they are not involved in a DUI.
While these offenses no longer carry mandatory suspensions and will not be reported to the Department of Driver Services (DDS), it is important to note that they still remain on a person’s arrest record if the person was arrested and fingerprinted. As a result, it’s still important to hire an attorney to make sure that the correct plea is entered so the arrest record can be restricted.
Here is a summary of the changes:
- 3-3-23.1 Minor in Possession of Alcohol: Deletes paragraph 3; no longer results in driver’s license suspension. Also deletes the suspension under 40-5-57.1(a) relating to suspension for under age possession of alcohol.
- 40-5-22(d) allows DDS to issue limited permit under 40-5-64 if license has been suspended due to suspension in another state, if otherwise eligible for such a limited permit.
- No mandatory suspension for use of fraudulent or fictitious license under 40-5-54 (a)(6); or any felony violation of Article I, Chapter 9, Title 16, if such offense is related to an identification document as defined in 16-9-4.
- No suspension for drug convictions under 40-5-75 ; still suspended for DUI Drugs, although eligible for limited permit IF in Drug Court Program.
- No more license suspensions under 40-5-57.2(which is repealed), for conviction of driving off without paying for gas, 40-6-255.
SB 100 is just one example of how Georgia’s laws are constantly changing, and why it’s crucial to work with a traffic lawyer who specializes in your area of need and who stays up-to-date with all the new laws, decisions, and precedents while understanding the impact they have on your case. To discuss your case and how I may be able to help, schedule a consultation with me, Mickey G. Roberts.
When you are looking to hire a DUI lawyer, which is more important: the price the lawyer charges, or the experience and reputation the lawyer brings to the table?
There is a debate in legal circles as to how lawyers should charge. On one side is the old school billable hour crowd, which believes lawyers should charge by the hour. On the other side is a new group which believes a lawyer should charge based on his/her knowledge and experience.
A recent case illustrates why I am now leaning towards the second group. Throughout my 35 years of practice, I have accumulated a vast amount of knowledge not only about the law, but also knowledge about and relationships with certain courts, police departments, prosecutors, and judges. That knowledge and the relationships derived from practicing for 35 years is, in many ways, invaluable.
In this recent case, my client was charged with driving under the influence (DUI). Even the video showed his speech was slurred, he was slightly unsteady, and he exhibited the maximum clues on the HGN field sobriety test. He also had supposedly run over a curb with his car.
At first glance, most lawyers would assume that it would be impossible to win a DUI case like this one. However, the client had been involved in a serious injury accident several years ago, which left him with some head injuries and partial memory loss. The client provided me with proof of his injuries sustained in the accident, as well as a letter from his lawyer indicating the evidence of permanent disability.
I first approached the officer and told him, in a nice way, of my concerns about whether the symptoms were the result of alcohol impairment or the result of injuries sustained by my client, and told him I would be talking to the prosecutor about reducing the charges. Then I spoke with the prosecutor, whom I have known for over 25 years, and eventually she agreed with me and reduced the charges.
Now, how valuable was it to my client that I had developed enough experience to consider other causes for this supposed DUI and established those relationships with the officer and prosecutor? Or that I had worked hard to develop a reputation with many prosecutors as someone who knows what they’re doing when it comes to DUI cases, so that if I discuss with these prosecutors that they have a problem with their traffic law case, they listen, research, and consider other possibilities?
Yes, my opinion is that experience, knowledge, and relationships are invaluable when it comes to DUI defense.
One of the reasons it’s so important for anyone charged with Driving Under the Influence (DUI) to hire an experienced traffic attorney is because your first DUI conviction will amplify the consequences of any future DUIs. A second DUI conviction not only carries heftier penalties than a first DUI, but also involves a complex process for getting your driver’s license reinstated. There is a lot of incorrect information out there, so here is the truth about license reinstatement after a second DUI conviction within a five-year period:
- There is a hard suspension for four months after the plea. (This means absolutely NO driving!)
- After four months, you may be able to get a limited permit to drive to work or school, which is valid for the next twelve months. HOWEVER, you must first prove to the Georgia Department of Driver Services (DDS):
- You have completed the twenty-hour Risk Reduction Class (DUI School).
- You have completed the Alcohol and Drug Evaluation.
- You have an Ignition Interlock Device (IID) on any car you drive, which requires you to blow into the device and prevents the car from starting if alcohol is detected.
- After those twelve months, you may be able to get a limited permit for an additional two months.
- Finally, after eighteen months of suspension, you can get your license reinstated by proving to the Georgia DDS:
- You have completed DUI School.
- You have completed a substance abuse program if it was recommended based on your Alcohol and Drug Evaluation. If no substance abuse program was recommended, you MUST receive a waiver from the Department of Behavioral Health and Developmental Disabilities (DBHDD).
- You have had an IID for one year, unless waived by the Court for financial hardship.
- You have paid a $210 reinstatement fee.
** Please note: I get many calls from folks wanting to seek the financial hardship waiver for the IID, but there are a few important factors to consider. First, it is very rare for a judge to order a waiver. Second, if you do receive a waiver for the IID, you are NOT eligible for any limited permit, meaning you would have a hard suspension for the full eighteen months!
Because driver’s license reinstatement laws are complex, it is wise to hire an experienced, knowledgeable DUI lawyer to help guide you through the process. To begin discussing your case, call Mickey Roberts at 770-923-4948 for more information. Or, to stay up-to-date on the latest DUI and traffic law news, follow me on Facebook, Twitter, and Google+.
A recent local traffic law case brings to light the importance of understanding uninsured motorist insurance:
A man whose car was rear-ended in DeKalb County in 2009 recently lost his claim against his uninsured motorist carrier when the Supreme Court of Georgia determined he did not adequately prove he was eligible for coverage.
The high court unanimously reversed a narrowly divided Court of Appeals opinion on the question. The justices found that the burden of proof rested with the injured driver, rather than his uninsured motorist carrier, to show whether the at-fault driver in the wreck was technically uninsured.
What is uninsured motorist insurance and why do you need it?
Let’s say, for instance, that you are involved in an auto accident and you suffer serious injuries. You receive a broken leg, and with surgery and recovery, your medical bills are in excess of $50, 000. On top of that, you have lost wages and of course the pain and suffering that comes with the injury.
The driver who caused the accident has the minimum liability coverage in Georgia: $25,000. Obviously, that would not cover your damages. That’s where uninsured motorist insurance comes into play.
If you have uninsured motorist coverage on your auto insurance policy, and you can prove the driver at fault was either uninsured or underinsured, you can file for payment of the difference with your insurance company.
So, if your claim is for $100,000, and you have uninsured coverage of $100,000, you could apply the $25,000 from the other party’s insurance and claim the remaining $75,000 on your policy.
Uninsured motorist coverage is relatively inexpensive. Check your auto insurance policy today and make sure you have an amount you are comfortable with. Then, in the event of an accident, contact an experienced traffic attorney to help you takes the correct steps toward the best possible outcome.
Jenny Pitcher Blog atlanta dui lawyer, Atlanta traffic attorney, atlanta traffic lawyer, Georgia DUI, Georgia serious injury by vehicle, Gwinnett DUI lawyer, Gwinnett traffic attorney, Gwinnett traffic lawyer
If you are involved in an accident and charged with either Driving Under the Influence (DUI) or Reckless Driving, and because of that driving, you cause another person to suffer serious injury, you could be charged with a felony, punishable with imprisonment anywhere from 3 to 15 years.
Serious injury by vehicle is one of two types of DUI cases which can be a felony case, with the other being vehicular homicide.
What is the definition of a “serious injury?” A serious injury is “when another is deprived of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless.”
Here are some examples of Serious Injury by Vehicle from actual Georgia auto accident cases:
- Broken bone(s), even a little toe!
- Losing vision in an eye
- Losing hearing
- Contusion of the brain
- Leg injury which resulted in temporary use
- Facial lacerations
- Disfigurement from surgery
Anytime you are involved in an accident involving another person, and you are charged with DUI or reckless driving, it is IMPORTANT that you hire an experienced traffic lawyer immediately. There are many things which must be done soon after the accident, like notifying your insurance company, finding out the extent of any possible injuries to the other party, and obtaining copies of the police accident and incident reports. In addition, many times I will go ahead and hire an accident reconstructionist so that he can evaluate the accident site and evidence immediately.
A felony conviction can be devastating. The likelihood of not only prison time but also the disabilities that go along with such a conviction call for an aggressive, well-planned defense.
If you find yourself facing such a situation, please call me, Mickey G. Roberts, PC, immediately!
Jenny Pitcher New Cases, Teen Drivers Atlanta DUI, atlanta traffic lawyer, Georgia license reinstatement, georgia license suspension, Gwinnett DUI, Gwinnett traffic attorney, Gwinnett traffic lawyer, out-of-state speeding ticket
Summertime usually means traveling to the beach or mountains or lake. If you are planning on driving out of the state this summer, here are some scenarios to think about:
- Your teenager gets an out-of-state speeding ticket in Gulfshores, Alabama. How does that affect his/her license in GA?
If the speed is high enough that it would suspend the license in Georgia, then the Georgia license will eventually be suspended. If the offense is one that would suspend the license in Alabama, then the Georgia license will also eventually be suspended, and your teen will have to reinstate driving privileges in Alabama BEFORE getting their Georgia license reinstated.
- You get a DUI in Florida, and you have a Georgia license.
If you are convicted of Driving Under the Influence (DUI) in Florida, your Georgia license will be suspended. You will NOT be able to get a limited permit to drive to work, and you will only be able to get license reinstatement in Georgia once you have satisfied Florida’s reinstatement provisions.
- You receive a ticket out of state which can suspend a driver’s license either in the other state or Georgia.
Your Georgia license will be suspended and you will not be able to get Georgia license reinstatement until you have satisfied all the issuing state’s reinstatement procedures.
For some reason, many folks think that an out of state ticket has no bearing on their GA license. Unfortunately, this is not accurate. Therefore, you should call or email me, Mickey Roberts, PC, if you or your family member receives a ticket out of state.