DUI

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

US Supreme Court Ruling Will Affect Breath Tests in Georgia

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:

  1. 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.
  2. 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.
  3. 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.

 

Mickey Roberts

 

 

 

 

How to Get a Georgia License Reinstated After a Second DUI

dui-in-georgia

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+.

No Laughing Matter: The Serious Consequences of a Second DUI Conviction

One DUI is certainly one more than anyone needs or wants, but a second DUI conviction carries the very real possibility of hefty fees and fines, significant jail time, hundreds of hours of community service, long-term license suspension, and tag forfeiture of any car titled in your name.
The Georgia legislature has enacted strongly worded laws and put in place severe penalties for anyone convicted of driving under the influence for the second time. While some of the penalties may be lessened at the discretion of a lenient judge, in general, second-time offenders should expect to receive a lengthy, expensive, and difficult punishment.

Expense
A second DUI carries a heavy financial burden. The state of Georgia charges a minimum of $600 in DUI fines, but in many cases judges raise the fine to over $1,000. This fine is in addition to 40% of that amount in statutory surcharges. While that number by itself is daunting, keep in mind that it does not include DUI attorney’s fees, lost wages due to missed work, the expense of completing court-mandated alcohol or driving education, or the transportation costs incurred after you lose your license.

Time
Second-time Georgia DUI offenders face between three days and 12 months in jail. A judge may reduce the requisite jail time, but offenders must spend a minimum of 72 hours behind bars. In Metro Atlanta, it is common for second-time DUI offenders to spend around 10 days in jail. You must complete a clinical alcohol and drug evaluation and attend what is commonly referred to as ‘DUI school.’ Factor in any time spent in your attorney’s office, in court, or performing the mandatory 240 hours of community service, and a second DUI is likely to have extremely time-consuming consequences.

Stress
The stress of a second arrest, incarceration, court date, and loss of any driving for a at least four months  – can take a heavy emotional toll on both the offender and his or her loved ones. Adding to the stress of the experience is the embarrassment of having your photo and DUI conviction published in the local legal newspaper. When the requisite four-month period of license suspension is up, offenders must deal with the stress and expense of applying for a limited permit. In order to obtain a limited permit, the offender’s vehicle must be outfitted – at the offender’s expense – with an Interlock Ignition Device (IID) for 12 months. Then you are entitled to a limited permit with no IID for 2 more months before becoming eligible for full license reinstatement.

Clearly, a second DUI conviction creates significant hardship for the offender. If you have been charged as a second-time DUI offender, it’s crucial to contact an experienced DUI lawyer who knows the law and defends DUI cases. Atlanta DUI attorney Mickey Roberts has been successfully fighting for drivers for over 34 years. Connect with Mickey on Facebook, Twitter, or Google+.

 

Vehicular Homicide Continued: Misdemeanor, Feticide, & Serious Injury Crashes

Last month, I filled you in on the ins and outs of felony vehicular homicide. To recap, determining felony vehicular homicide depends largely on the traffic violations committed, including reckless driving, DUI, fleeing/eluding, and leaving the scene of the accident. Generally, if found guilty of felony vehicular homicide in Georgia, you can expect a punishment of 3 to 15 years in prison, though habitual violators can face up to 20 years.

As a seasoned traffic and DUI lawyer in Georgia, I have experience in defending cases involving other facets of vehicular homicide outside of felony, including misdemeanor, feticide, and serious injury crashes. All of these classifications have varying implications, but all involve a driver’s actions as the proximate cause of death or cause of serious injury. Vehicular homicide in the 2nd Degree is known as a misdemeanor. In Georgia, any person who causes the death of another person as a result of traffic violations other than the felony predicate offenses commits this offense.

For example, if you were to run a red light, crash into another car, and cause the death of another person, it would be classified as vehicular homicide in the 2nd Degree.  To be found guilty of misdemeanor vehicular homicide, the judge or jury is required to find that the person committed a traffic offense other than the felony vehicular homicide predicate offenses. Subsequently, it must be found that the person’s unlawful acts were the proximate cause of death. For this offense, you can be sentenced to a maximum of 12 months.

Another aspect of vehicular homicide is feticide by vehicle. The elements and punishment for felony feticide by vehicle are the same as felony vehicular homicide, with the same rule applying to misdemeanor vehicular homicide. Feticide by vehicle is defined as causing the death of an unborn child, at any stage of development that is carried in the womb, within a car crash.

Lastly, any person who brings about serious injury to another person as a result of reckless driving or DUI commits the offense of serious injury by vehicle. “Serious injury” is defined as “depriving a person 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.” In order to be found guilty of serious injury by vehicle, the judge or jury must find that the person committed either reckless driving or DUI. Subsequently, they must find that the person’s unlawful acts were the proximate cause of serious injury. This offense is a felony that comes with a sentence from one to 15 years in prison. If convicted of serious injury by vehicle, the person will face 3 years of driver’s license suspension, no work permit available.

Navigating the various facets of vehicular homicide and serious injury crashes can be daunting and often times confusing. If you find yourself in any of the situations described, I urge you to contact a professional to aid in your case. To contact a reputable lawyer in Georgia, contact me, Mickey Roberts. Be sure to follow me on FacebookTwitter, and Google+ for traffic law updates and news.

Case of the Month: DUI with Drugs Involved Turns into a City Ordinance Violation

While marijuana laws are changing all over the United States, the facts remain unchanged in Georgia: have it in your possession or drive under the influence, and law enforcement will not be happy. For an example, let’s examine this edition of my Case of the Month series featuring underage DUI involving marijuana.

dui with drugs

An underage client of mine was stopped by a police officer for making an illegal left turn.  When the officer approached the car, he smelled the telltale odor of marijuana drifting from inside. My client admitted to smoking marijuana prior to being stopped with his girlfriend, a passenger in the car. 

After performing field sobriety evaluations, my client was arrested for DUI for being under the influence of marijuana. When the officer requested a urine test, my client consented.  The urine test came back positive for marijuana. Georgia law states that a person is guilty of a DUI if that person “drives a vehicle while under the influence of marijuana to the extent that person is rendered incapable of driving safely.”  Since marijuana is detectable in urine even a month after use, it is possible to be convicted of this type of DUI weeks after it was last used, if the State can prove, through physical appearance, driving, and field sobriety evaluations, that you were incapable of driving safely. This is part of what makes marijuana DUIs so tricky.

Because of my client’s age, even a plea to reckless driving would have resulted in a 6-month suspension. The key to a urine test is that by the time marijuana (or its inactive ingredient) gets into your urine, you are no longer under the influence of the effects of the marijuana.  In this case, I was able to resolve the case as follows: the DUI was reduced entirely, and the client pled to a city ordinance violation, which did not go on his driving record or on his criminal history.

There are hundreds of ways to win a DUI case, especially when you consult an experienced DUI and traffic lawyer in your area. We just need to be open and creative enough to find the way for each particular case. To contact a reputable lawyer in Georgia, contact me, Mickey Roberts. Be sure to follow me on FacebookTwitter, and Google+ for traffic law updates and news.

What Happens When You Are Arrested for DUI?

Whether you have been arrested for DUI (Driving under the Influence) for the first time or multiple times, you may be wondering how the DUI process works and exactly what you should be doing NOW.  Below, DUI attorney Mickey Roberts details step-by-step what happens when you’re stopped for suspicion of DUI.



  1. After suspicion or probable cause (for example, operating your vehicle in an unusual or illegal manner), an officer stops your vehicle and requests you to pull over before obtaining your driver’s license, vehicle registration, and insurance card.
  2. After providing the police with your license and insurance, tell the officer you are invoking your 4th Amendment rights. Also tell him/her that you are invoking your 5th Amendment rights as well.
  3. If the officer suspects you are under the influence of alcohol, you will be asked to submit to field sobriety tests such as horizontal gaze, walk-and-turn, and the one-leg stand evaluations.
  4. Following the field sobriety tests, if the officer suspects nothing, you will be released. However, if the officer has probable cause, you will be placed under DUI arrest and taken to the police station. You will be asked to submit chemical testing of breath, blood, or urine.
  5. … Do NOT refuse to take the State chemical tests UNLESS you have had enough alcohol to be above the .08 limit. If you refuse to take the test, your license could be suspended for one year.
  6. If you are under 21, or this is not your first DUI in five years, it is recommended that you refuse to take any state chemical test of blood, breath, or urine. Otherwise, request a blood test and independent breath test with another police department immediately after arrest, and then take the state test(s). Do not refuse to the take the State test outright or your license will be suspended for one year.
  7. Once in custody, invoke your right to an attorney—however, you are not guaranteed the right to call an attorney for advice on a roadside stop. Memorize and print your legal rights NOW to avoid problems at the scene.
  8. You are required to post bond and may be incarcerated until bond is posted.
  9. Your vehicle may be towed, impounded, or seized.
  10. Keep in mind: If you register over .08 on the state chemical test or refuse completion, you only have ten business days from the arrest to request a hearing from the department of Public Safety before your driver’s license will be inevitably suspended.





Stay tuned for a blog coming soon for more on what happens after your arrest. If you are arrested for DUI or other traffic violations, contact Mr. GaDUI today. Also be sure to follow me, Mickey Roberts on FacebookTwitter, and Google+ for more traffic law updates and news.



New Practice Area: Criminal History Restriction

arrested for duiDo any of the following categories apply to you after being charged with a crime? You…



  • Were found not guilty
  • Had your case dismissed
  • Entered into a first offender type plea
  • Were under 21 at the time of the charge




If any of the classifications above pertain to your case, you’ll want to talk to Georgia DUI attorney Mickey Roberts about the new Georgia “Restriction” Law. The law was formerly known as expungment, a process whereby a person’s criminal arrest is deleted. In most States expungment is not available for a DUI arrest; however, involving an experienced attorney can make all of the difference in finding success from your case.



The new Georgia “Restriction” Law enables you to, under certain circumstances, go back and have your arrest restricted from public access or corrected if it is showing an incorrect disposition. You may also be able to get court and jail records sealed.



Recently, I have been able to get a 2002 DUI arrest record restricted from public access, diminishing the possibility of the past creeping into your present and getting in the way of your opportunities. Additionally, I had a record corrected, enabling my client to either obtain the record or have it restricted, allowing them to at least be able to show employers that the underlying DUI in the case was dismissed.



Don’t let your DUI obstruct your career path. Contact Mr. GA DUI today. Also be sure to follow me, Mickey Roberts on FacebookTwitter, and Google+ for more traffic law updates and news.



DUI Defined: What is a DUI in Georgia?

There are many types of DUIs (driving under the influence) in Georgia, but the most common type is that a person is “driving while under the influence of alcohol or drugs.”

Police Officer - Eye Coordination

What does it mean, legally, to be “under the influence?” Firstly, it means that you are less safe to drive than if you had not consumed alcohol or drugs. But, hey, that depends on the person’s tolerance, right? So, according to the Pattern Jury Charges that judges in Georgia read to jurors before deliberating, this is what “less safe” means:

A person is less safe to drive when that person is less efficient, less skillful, less coherent, less able, and less proficient to drive a car.

Take notice: there is nothing that describes “less safe” as having your eyes jerk (examined by the Hortizontal Gaze Nystagmus (HGN) test) or performing gymnastic floor exercises recognized as field sobriety tests.  There is no indication about bloodshot eyes, slurred speech, or the smell of alcohol. The definition also does not mention anything about alcohol or drug blood levels.  The definition has to do with whether a person’s fine motor skills have been affected so much that they cannot effectively drive a car.

So, the next time you are on a jury and are asked to decide if someone was the DUI-version of “less safe”, remember the context of driving ability. Is there evidence that the person was able, efficient, skilful or proficient while driving the car? Or is there simply collateral evidence that may or may not have anything to do with actual driving skill?

If you are arrested for DUI or other traffic violations, contact Mr. GaDUI today. Also be sure to follow me, Mickey Roberts on FacebookTwitter, and Google+ for more traffic law updates and news.  

Can Your DUI Be Reduced to Reckless Driving? February’s Case of the Month

Don’t settle for DUI. In some cases, such as this month’s featured DUI case, a DUI can be reduced to reckless driving. My client was stopped in the city of Duluth, Georgia. She was coming home from work late at night, and the officer stopped her for speeding. In the video of the case, the officer said my client smelled like alcohol, her eyes were bloodshot, and her speech was slurred; he administered the Horizontal Gaze Nystagmus HGN and found the maximum number of clues. After her arrest, my client refused to take any State breath test.

zero tolerance georgia

Although her prior DUIs were several years ago, this arrest marked my client’s third lifetime DUI. The video revealed my client’s speech and walk were normal. She was argumentative with the officer, but I argued that was because she felt she was being wrongfully arrested. The officer’s evaluation of the HGN was absolutely inconsistent with her physical appearance, and I argued that therefore the HGN should be totally discounted.

Because of those arguments, as well as my long standing professional relationship with the Duluth Court, the charges were reduced to a lesser offense; my client was able to keep her license and walk out of Duluth Court, with no probation.

The fact is that in today’s DUI World, a lawyer’s experience, reputation, and relationships are important. When someone is looking to hire a DUI lawyer, the questions must be asked: How much experience do you have in DUI defense? Do you have good reputation in the legal community? What is your relationship with the police, prosecutors, and court?
If you are arrested for DUI or other traffic violations, contact Mr. GaDUI today. Also be sure to follow me, Mickey Roberts on FacebookTwitter, and Google+ for more traffic law updates and news.