georgia dui lawyer

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.

 

 

Why Motions Are Important in a DUI Case

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:

  1. The State’s witnesses don’t show and you either win the case or force the State to offer a reduction of the charges.
  2. 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.
  3. 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 Driver’s License: Right or Privilege?

There’s nothing quite like the feeling of driving a car for the first time by yourself as a teenage driver: you’ve completed numerous hours of driver’s ed., passed the written test and aced the driving portion – congratulations, you’re a licensed Georgia driver!  What seems like a rite of passage for individuals over 16 year of age is considered a “driver’s privilege” in the eyes of the law when licenses are issued.  This means that what the State giveth, it can also taketh, and yes, they will suspend your license for a number of reasons.  I would like to share with you five examples (of course the list isn’t limited to these five) of such reasons that can lead to a Georgia license suspension:

    Georgia Drivers License Right or Privilege

  1. DUI: driving under the influence (DUI) is one of Georgia’s most common traffic offenses.  This means that if you are pulled over by a cop, consent to field sobriety tests , and consent to a breath test that show your blood alcohol concentration (BAC) is over .08 grams (.02 for under 21 drivers), then you can be convicted of DUI and your license suspended for a predetermined period of time.
  2. Too many points on your driving record: certain traffic convictions carry point values.  For instance speeding ranges from 2-6 points, depending on your speed, while unlawfully passing a school bus is 6 points.  If you accumulate a certain total of points in a short period of time (it’s dependent on your age and point value assigned to a specific conviction), then your license can be suspended.
  3. Hit & run: this refers to hitting another vehicle and driving away before the accident has been reported.  This is considered a serious infraction as it implies that you consciously chose to drive off and as a result, hit and runs are considered a mandatory suspendable offense.
  4. Failure to pay child support: if you have been mandated by the courts to pay child support and fail to do so, your name is added to a state-wide certified list of all persons in violation (this list is updated monthly).  If you have accumulated over 60 days’ worth of not paying then a licensing agency/department has the right to withhold your license until payment is made.
  5. School attendance: a teenage driver under the age of 18 can have their license suspended for several reasons including, dropping out of school without graduating, having 10 or more unexcused absences in an academic year or pleading guilty to a number of offenses (such as drug or weapon possession, causing bodily harm to students/teachers, etc.).  Conduct infractions can lead to a one-year suspension or until the minor has turned 18.

As an experienced traffic and DUI lawyer, I not only defend people who have had their license suspended because of traffic offenses but I also help get license suspensions revoked.  Give me a call or contact MrGaDUI today if you have recently had your Georgia license suspended.  For more on the latest updates in DUI or traffic law, stay connected with me through my Mickey Roberts, P.C. Facebook, Twitter or Google+ page.

Why the Georgia State Patrol is Asking You to Speed Up (No, Really!)

“But officer, I was going the speed limit!”

Since July 2014, this has likely been the sentiment echoing through the ears of many Georgia State Patrol officers—but not for the reason you’d expect. While many speeders wrongfully use this excuse while going well over the speed limit, it could now be due to getting pulled over due to the new “slowpoke” law.

The law was passed by state legislature in efforts to reduce the amount of drivers who obstruct the flow of traffic in the passing lane.  By doing so, officers claim to decrease the possibility of “road rage” and accidents associated with slow drivers by moving them out of the left lane away from fast moving traffic and even speeders likely to be clocked by an officer’s radar gun.

If weather or traffic conditions make it necessary to stay in the left lane or you must be in the passing lane to exit the roadway or turn left, you’ll likely be excused from having to move out of the fast lane.

As of November 2014, the Georgia State Patrol has issued well over 100 citations. Officers report that it is extremely simple to spot drivers who do not move over while drivers pile up, just trying to pass them. While certainly frustrating, it is interesting that a law has been passed for this type of behavior since speeders (which are far more dangerous to other drivers) likely will get more attention. Regardless, it’s important to follow enforced laws when driving on the highway and pay attention to your role among other drivers. As an experienced  traffic and DUI lawyer in Georgia, I see many drivers involved in accidents simply for not paying attention. I recommend for this never to be the reason you are dealing with traffic trouble in court.

What do you think of the new slowpoke law? Did you even know it existed? Head over to my FacebookTwitter, or Google+ and comment to let me know. For help with your own DUI and traffic law cases, please contact me, Mickey Roberts.

March’s Case of the Month: How an Underage DUI Became a Simple MIP

This month’s case shows the value of having an experienced DUI attorney who has a reputation for aggressively defending cases.  In an Athens-Clarke County case, my UGA student client was in a Pre Trial Diversion for a previous Minor in Possession (MIP) of Alcohol charge when he was arrested by Athens police and charged with DUI.

case of the monthSo now, he had a DUI charge and the old MIP charge pending in Athens. Unsurprisingly, the police report had my client as being intoxicated, but after reviewing the video, I thought otherwise of the evidence.

The cop had stopped my client for a broken taillight, yet the cop was approaching my client, and it would have been extremely difficult for the cop to actually see a broken taillight. The video revealed my client’s physical appearance to be normal. My client denied drinking and refused a breath test after arrest. Any clues on the Field Sobriety Evaluations were minimal.

Nonetheless, because the client was under 21 at the time of the arrest, any evidence of him having consumed alcohol could have resulted in a guilty verdict. We employed the use of an expert in Field Evaluations who agreed with me that the evidence was slim and was known and respected by the prosecutor. Eventually, we negotiated a plea to 2 MIPs, allowing my client to continue driving and to not have a DUI conviction on his record.

One more thing: We structured the plea so that the MIP pleas would not result in a suspension of client’s license. (He could have had a 1 year suspension!)  It is important that a traffic lawyer knows how to structure pleas for the best possible outcome, and this means the lawyer must have a thorough knowledge of Georgia Traffic Laws.

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.  

The Problem with Breathalyzers

As we approach the holiday season, parties and alcohol will be as equally present as the increased law enforcement on the road. While it is always the best choice to have a designated driver to take you to and from your festivities, some people choose to drive after having a drink or two. In many cases, taking the precaution of limiting yourself to minimal alcohol leaves you safely under the legal limit. However, Georgia DUI lawyer Mickey Roberts often explains to his clients that if you are stopped and tested by a breathalyzer, you may be accused of drinking far more. How does this happen, and how can you stop it?



mouth alcohol breathalyzer

As part of the 4 simple rules to remember when stopped by the police to avoid DUI, remember not to submit to any voluntary roadside field sobriety evaluations—breathalyzers included.

In fact, it is advised not to take any state tests if you are arrested, especially if you believe you might be over the legal limit of .08. Unfortunately, even if you do not believe you are over the limit, a breathalyzer may show a very different, incriminating result.




The problem with breathalyzers is the false reading sometimes caused by mouth alcohol. When a breathalyzer analyzes your breath for blood alcohol concentration (BAC), the internal computer believes it is reading from air exhaled from deep within the lungs, also known as alveolar air. However, if your last sip of alcohol was recent, the sample very well may come from your mouth or throat. Even if a very small amount remains, the breathalyzer will report a very high BAC.




Another reason the breathalyzer may report higher than accurate numbers is if the DUI suspect has recently belched or is affected by acid reflux, causing what could be alcohol-filled liquids and gases of the stomach to rise into the esophagus and mouth’s soft tissue, where it remains until it is dissipated by saliva. The action of saliva rinsing the mouth and tissues of alcohol takes roughly 15-20 minutes. An additional cause of inaccurate breathalyzer reading is the usage of mouthwash or breath freshener, which you may be better off not using if you are attempting to cover up the smell of alcohol after consumption. Also, if you have dental work or removable components such as dentures, you are subject to much longer periods of holding high mouth alcohol.




To elude the mouth alcohol problem, it is best to stop drinking—even at minimal levels—hours before driving. To avoid DUI, it is best to always have a designated driver on hand to exacerbate the risk altogether.  If you need DUI help, please Contact MRGADUI  today.  Be sure to follow MrGaDUI on FacebookTwitter and Google+ for more information on Georgia DUI laws.

How Motions Can Win a DUI Case

There are many ways of winning a DUI case, and one way is to fight the case with “motions”. Motions are pleadings filed with the court asking it to throw out the case entirely or limit evidence that the State can use against the defendant.




The most common motion I use is called a Motion to Suppress.  This motion serves 3 purposes. First, it could possibly win the entire case, such as when the court rules the stop illegal. Second, it allows me to cross examine the cop to see if he/she can actually articulate why the defendant was arrested for DUI, whether they followed their training, and so forth. This is especially important in cases where there is no video of the arrest. I can cross examine the officer and many times show the State that the officer did not follow basic operating procedures for a DUI arrest, or doesn’t make a good witness.  Finally, sometimes the officer fails to appear for the hearing and the case gets thrown out.




One of my most recent cases shows the importance of motions: my client was stopped for weaving, supposedly failed all of the field sobriety tests, and registered a BAC (blood alcohol content) of .08 on the breath test. At the motions hearing, the officer was unable to remember or articulate my client’s physical appearance, could not articulate how he administered the field tests, and most importantly, NEVER testified that he read the implied consent warning (the warning needed as a prerequisite BEFORE admission of any State breath test). As a result the .08 was excluded from evidence. After the hearing, the State approached me and offered a dismissal of the DUI in return for a plea to reckless driving. My client readily accepted the reduced charge, and the case was over without the further expense of a jury trial for my client.




Motions are an important tool in aggressively defending DUIs, and any good DUI attorney should use motions on most DUI cases.  To learn more about the DUI defense and other traffic related services I offer visit my website and continue to read by blog.  Connect with me on Facebook and Twitter for access to the latest traffic offense news and updates.

Why You Should Not Trust Georgia’s Breath Test Machine

When a person is arrested for DUI in Georgia, suspected of being under the influence of alcohol, most of the time the police will request that the person go to the jail or police station and submit to a “State chemical test of your breath.” It is this “breath test” that is used to convict that person of DUI, simply for having blood alcohol content (BAC) of over .08 grams.




Georgia uses a breath test machine manufactured by CMI, a company out of Kentucky. The machine contains many parts, and operates through an Infrared device used to take a breath sample from a suspect and convert it into an amount of alcohol in the person’s blood. The machine is a computer and operates by using a “source code” as all computers operate. There are many reasons why we should not trust the accuracy of Georgia’s breath machine. Here a just a few:




1. The machine is only inspected by a State employee once every 3 months; it is not inspected before and after every individual test. Therefore, even if the machine is deemed to be working properly, it can only be argued correctly that it was working that day, with only the inspector present.




2. During the “inspection”, the tester never actually opens up the machine to check to see if the electronic components are working properly.




3. The inspector does run a known alcohol solution through the machine. If the machine prints out a reading that is close to the actual alcohol amount, the machine is deemed to be working that day.




4. The alcohol control solution is in no way similar to an actual human sample. It does not take into account how a person with asthma, allergies, braces, gastric reflux, bridgework, or a fever would blow.




5. The inspector runs two test samples, if the two test results are within 25% of each other the machine is deemed to be working properly!




 
There are many other reasons why you should not trust the breath test machine, but if you just consider the way Georgia inspects these machines to “verify” that they are working properly, ask yourself the following:




a. Would you allow your CPA to prepare a federal tax return with a 25% potential disparity?




b. Would you pay a lasik surgeon to fix your vision, and accept as “good enough for medical purposes” a CORRECTION that was OFF by these + and – ranges?




c. Would you book a flight on an airline with these variable percentages on their altimeters (the device that estimates the distance between the ground and the wheels at “touch down” on the runway)?




While these scenarios may seem far-fetched, they demonstrate the importance of only seeking the advice of an experienced Georgia DUI attorney if charged with DUI. To learn more about DUI and traffic violation defense, read our blog and connect with us on Facebook, Twitter, and Google+.