Misdemeanor defendants are most likely to appear without counsel – they often think that they may get a fine, then they can go home.

As an attorney, it is certainly easy for me to say “never appear in a criminal court without a lawyer.”  I fully understand that most people do not have ready access to the $1,000 to $2,000 that many defense attorneys charge to negotiate a deal.

On the other hand, if you decide to take your chances and appear without a lawyer, do your research and understand what you will be facing.  Remember, you are entering a different world and the prosecutor’s goal is not “justice” but it is to clear out his docket as quickly and efficiently as possible.  It is your problem if you accept his recommendation without negotiation.

Realize as well that the prosecutor, judge and court personnel are not under any obligation to explain the court processes to you or give you time to think about what you want to do.  Judges are very busy people and your case, while important to you, is only one of hundreds or thousands they have to handle.

When a potential client asks me whether it makes sense to hire a lawyer, I explain that my job is mainly to eliminate the uncertainty factor.  I have been in court before and I know how the process works.  I have perspective about what constitutes a “reasonable” plea bargain and when the prosecutor’s case is weak enough to take our chances in court.

Take a look at this blog post entitled Bargaining for Freedom, A Day in Criminal Court.  The author, a lawyer who does not handle criminal matters, describes the experiences of a friend who appeared in court without a lawyer.  While this article describes a day in a Los Angeles criminal court, the experience he describes is fairly universal and could have happened in any busy Atlanta area court as well.

According to the arresting officer, Mr. Bannister failed three field tests for sobriety, his restaurant bill showed purchases of 5 Bud Light beers + a half pitcher of beer, and he reportedly stated to the officer “I can’t believe this is all over one or two beers.”  Mr. Bannister was then given a breath test – which registered 0.00!

A blood test was later administered and the results have not been made  public.

Assuming that Mr. Bannister did consume some alcohol, the breath test (we can assume this was a  Intoxilyzer), the equipment used was clearly faulty.  In this case, the faulty equipment benefits the defendant but how often might a faulty breath test machine come back with a false positive?

The point here is not to pass judgment on Mr. Bannister or the integrity of Gwinnett County law enforcement.  You can take from this episode that breath testing equipment can be very unreliable.  A blood test offers a much more accurate reading of your blood alcohol levels (although there are grounds to contest these numbers as well).

This past week, Mr. Taylor published a fascinating post called “The Future of DUI Revisited.”  In this post, he talks about the trends he sees in DUI lawmaking as well as enforcement.  Specifically Mr. Taylor observes that state legislators are passing laws that reduce the blood alcohol limits, while accepting less accurate measuring equipment for prosecution.  He also predicts that the federal government may get involved in DUI prosecution (yet another mis-use of the Commerce Clause, but that is a story for a different day) and that Constitutional protections for DUI defendants are being eroded.

Obviously everyone – citizens, DUI defense lawyers, and politicians – want to remove impaired drivers from the road.   The job of the DUI attorney, however, is to see to it that our clients receive fair and appropriate treatment by the courts.   Laws that punish defendants based on a blood alcohol reading based on machines calibrated for a 200 lb. man will not result in due process of law if you weight 250 or 350 lbs. or if the testing equipment was not properly calibrated.   Because the stakes in criminal prosecutions are so high, the state must prove its case and if the methodology utilized by the prosecutor is flawed, then your constitutional right to a presumption of innocence and clarity in the law will be compromised.

Mr. Taylor suggests that the intent of some of the anti-drunk driving groups is morphing into an anti-drinking focus more so than anti-drinking and driving.  Could the current trends in DUI law be the harbinger for a new prohibition?

Here is a link to the Georgia section of the site.

Users can vote “thumbs up” or “thumbs down” as to whether a listed location is still an active police surveillance location.

Some may disagree with putting this type of information on the Internet but I don’t think it is any different than using speed indicators to display your speed and whether you are speeding 0n a particular road.  I think everyone wants to drive safely and to avoid expensive tickets, so I don’t see a problem with identifying where police with radar are located.   Traffic enforcement should be about safety not about revenue enhancement by a city or county.

A “per se” violation means that you had a blood alcohol content over the legal limit when you were caught driving. As you probably already know, in Georgia, a BAC of 0.08 percent and up is over the legal limit. If your BAC is over the legal limit, then the prosecutor does not have to prove that you were a “less safe” driver. This means that even if you were not driving recklessly, you can still be convicted because you had an amount of alcohol in your blood that was above the legal limit.

If you are under the age of 21 or a commercial driver, “per se” violations are much stricter. Georgia has Zero Tolerance laws which mean that if an underage driver has a BAC of 0.02 percent or higher, they will be charged with a “per se” violation. And as far as commercial vehicle drivers are concerned, if you drive a commercial vehicle, you can be charged with a “per se” violation if you have a BAC of 0.04 percent or higher.

Now, if you are charged with a “less safe” driver violation, then for you to be convicted the officer must prove just that (that you are a less safe driver due to being under the influence). The officer must testify about why they believe you were a less safe driver, such as if you were driving recklessly, your breath smelled of alcohol, or your speech was slurred.

If you are charged with either of these Georgia DUI violations, speak with an experienced defense attorney soon, as there are many defenses that can be used. For example, if you are charged with a “less safe” violation because you were driving recklessly and your eyes were red, it’s possible you just had something in your eye irritating it and were distracted trying to remove it. Also, in a previous post I covered the problems with the devices used to test your breath. Highlighting such problems is also a means of defense if you are charged with a “per se” violation.

The bottom line is that you should always contact an experienced DUI attorney when you have been convicted of DUI in Georgia – whether your violation is considered “per se” or “less safe.”

There are three different types of chemical tests that officers use to determine the driver’s blood alcohol content: breath, blood, and urine. The urine test can be considered the most unreliable form of chemical test because there are many ways the results can be faulty.

Urine tests, just like most other sobriety tests, are dependent on the administrator’s ability. If the officer was not properly trained to administer the test correctly, or does not follow the correct procedures, the test results are unreliable.

The concentration of alcohol in urine is 1.33 times the concentration of alcohol in the blood, so the results are inflated. Because this is a known fact, urine tests are typically used just to determine if the driver had taken drugs at all.

According to a study done by the National Institute of Drug Abuse, 20% of the labs that were surveyed had wrongly reported that illegal substances were discovered in urine samples that were actually completely free of illegal substances. This is because many illegal substances have similar chemical compounds to other substances which are legal. For example, if you have are sick and are taking a non-drowsy cold medicine, amphetamines may be found in your results. If you are taking Ibuprofen, marijuana may be found in your results. It’s not an old wives tale: it is even possible to fail a drug test from eating a poppy seed bagel!

Another issue with the urine test is that it is not able to determine when the illegal substance was used. A urine test will find any traces of the substances even if it was used a week ago and is no longer affecting the user. Therefore, if a driver is pulled over on a Wednesday and had used illegal substances last Sunday, even though the drugs have no affect on their driving ability anymore, they can still test positive for using them.

The good news: Because the urine test has countless flaws, test results can be easily challenged in court.

Due to all its flaws, the urine test is rarely used, especially since officers have other/better methods for determining whether people have been driving under the influence. Have you ever been subjected to a urine test in Georgia? Or have you known anyone who has? If so, I’d like to hear your thoughts on the matter.  It is not something we see very often.

Persons accused of driving under the influence garner little sympathy, especially those with multiple offenses.   How can any lawyer want to get a repeat offender off on a technicality?

Here is how I respond:

First, the goal of any reputable criminal defense lawyer is to investigate to determine whether the state (in the form of the police officers and the prosecutors) have done their job according to the law.  In the American system, criminal prosecutions are adversarial in nature, meaning that the state’s attorneys (the prosecutor) and the defense attorney are on opposite sides.

Our founding fathers recognized that representatives of the state have significant resources and built in authority when appearing before juries.  Such power can be abused if not held in check.   Unfettered police power can turn a free society into an authoritarian one.   History has shown that when agents of the state can enter people’s homes at will, detain them indefinitely, and incarcerate without critically analyzed evidence, personal freedom disappears.  We can both support the hard work and bravery of policemen and women while at the same time demanding that these officers take care to collect and store evidence properly, advise the accused of certain constitutional rights and engage in a certain baseline of appropriate conduct.

How does all this apply to a DUI case?  Take a look at this informative article about blood alcohol testing kits in Georgia from respected Newnan, Georgia DUI defense attorney Alan Trapp.   Alan discusses the blood collection kits used by state and county police forces in Georgia and the potential for false results because of stale preservative or a defective seal.  Now imagine that you consumed one beer at dinner and were randomly stopped at a DUI checkpoint.  Further assume that the DUI kit used by the local police officer was contaminated with a yeast called Candida albicans that began to ferment when blood was added.  Further assume that there was insufficient preservative in the test kit.  A properly calibrated kit might have shown your blood alcohol content at .03, well below the legal limit, but the contaminated kit yielded a result of .09.

In this scenario, a DUI conviction would wrongfully land you in jail for two or more days, a fine of up to $1,000, a possible loss of your full driving privileges for up to a year, 40 hours of community service, probable loss of insurance coverage, and dramatically increased insurance renewal rates.

In truth, because of the contamination neither you, the arresting officer or the prosecutor would really know exactly what your blood alcohol level was at the time of arrest.   That uncertainty is called “reasonable doubt.”

Now imagine that you retained a smart lawyer like Alan who was able to obtain physical evidence and testimony from the arresting officer that convinced a judge or jury that the blood alcohol test kit was contaminated, thereby resulting in an acquittal.

Now this does not mean that every DUI arrest can be successfully challenged, and conversely there may be some guilty drivers who get off because of bad evidence.  If the stakes are your personal liberty and a huge financial burden, don’t you want the state to have to prove its case beyond a reasonable doubt.  Don’t you want a procedure in place where you can argue against your guilt to an impartial finder of fact?

So, the next time a friend or relative opines that criminal defense attorneys are no better than the defendants they represent, think about how you would feel if you found yourself in the wrong place at the wrong time and your lifestyle was at risk.

In Georgia, the Intoxilyzer 5000 is the current breath-testing machine used to detect whether or not a person has been drinking or is over the current legal limit of 0.08. Before you are arrested for a DUI, one of the methods an officer will use to determine your guilt is by administering this breath test. If you refuse to take the breath test your driver’s license will automatically be suspended (although there is a way to fight the license suspension – click on link for more).

While the Intoxilyzer 5000 is a sophisticated test, it comes with many design flaws that can potentially help your case if you are convicted with a DUI.

The Intoxilyzer 5000 can result in inaccurate readings if the driver suffers from a variety of illnesses, including diabetes, esophageal hernia, heartburn, gum disease, respiratory problems, and liver disease. Because the Intoxilyzer 5000 also has problems determining whether the alcohol it is measuring is from the driver’s mouth or actually in the bloodstream, if the driver had been chewing certain gum, had tobacco products, breath mints, denture adhesives, or had taken cough syrup before driving, the results are faulty. These inaccuracies are even more significant when drivers are under the age of 21 and could be arrested with a BAC as low as .02% or higher.

The accuracy of the Intoxilyzer 5000 is also dependent on the competency of the police officer administering it. Many officers have not been formally trained in using the Intoxilyzer 5000, and most are given only minimal training. The extent of the arresting officer’s training should always be questioned in court.

Illnesses, potential of alternative forms of alcohol in your mouth, and the arresting officer’s training are all significant factors that could lead to inaccuracies in your DUI case. An experienced DUI attorney can help locate these inaccuracies and save you from a DUI conviction. If you have been arrested for driving under the influence and would like to speak with an experienced DUI attorney, please fill out the Free Case Review form found on this website.

When you are arrested for driving under the influence, the officer should first read the Georgia Implied Consent Notice. Then you will be asked to take a breath test, which is done with the Intoxilyzer 5000 in Georgia. If you fail the breath test, or decline to take the test, the officer will submit a report to the Department of Public Safety, and you have ten business days to request an administrative hearing. If you fail to request a hearing, your license will automatically be suspended.

If you chose to decline to take the breath test, you will face harsher consequences than if you do take the test and fail it. Not only will you be automatically disqualified from receiving a limited driving permit, which would allow you to drive to and from work, you may also be disqualified from having a hearing and lose your appeal. Depending on your record, you could face a license suspension from one to five years. The only way to have the suspension undone is to win at trial or plead to a different charge.

This is why it is extremely important that you request an administrative hearing within 10 days of getting pulled over. It may not to be late to reverse the damage brought on by declining to take the test. At best, you will be able to prevent the license suspension and keep your license.

If you took the breath test and failed, you could still be granted a limited permit if you request a license hearing within ten days. Once your limited permit expires, if you complete a DUI School course and pay a $200 fee, you may be able to get your license reinstated early. But if you do not request a license hearing within ten days, your license will be suspended for one year. So again, if you took the breath test and failed, request the administrative hearing within 10 days of the DUI!

It is incredibly important to meet all deadlines and make sure you request a hearing within ten days if you have been arrested for driving under the influence in Georgia or have declined to take a breathalyzer. I recommend speaking with an experienced attorney to help navigate you through the laws of a DUI charge in Georgia.

Horizontal Gaze Nystagmus

HGN refers to the involuntary jerking of the eye, and it typically becomes more obvious when a person is under the influence of alcohol. Of the three tests, the HGN is considered the most scientific with an accuracy rate of 77%-88% and can therefore be the most damaging if used in court.

The officer will ask you to follow a small object, typically a pen or finger, with your eyes while keeping your head still, as they watch for nystagmus (jerking of the eyes). The officer will be looking for three clues in both of your eyes, six clues total, and if they believe that four of the six were displayed you can be arrested.

The major flaw with the HGN test is that there are more than 100 different physical and medical problems that can cause HGN which are not associated with alcohol.

Walk and Turn Test

The walk and turn test measures your ability to follow instructions while performing a fairly simple physical task. The reasoning behind this test is that a sober person would find the task easy to perform, but it would be difficult for a person who is under the influence to complete.

For example, the officer will ask you to take nine heel-to-toe steps forward, turn, and repeat nine heel-to-toe steps back while counting out loud the number of steps you take. The officer is watching for multiple signs that you are under the influence, such as missing steps, taking an incorrect number of steps, counting incorrectly, not being able to maintain balance, etc. If you make two mistakes, you can be arrested. If you use your arms for balance or cannot complete the task, then the officer will count it as a failure.

A flaw with the walk and turn test is that physical problems, such as weight, physical problems, and fatigue, could be hindering your performance.

One Leg Stand Test

The one leg stand tests measures your ability to pay attention and follow directions as well as your physical ability.

The officer will ask you to stand with one foot six inches above the ground while you count out loud in thousands (one-one thousand, two one-thousand, and so on) while looking down at your foot with your arms by your side. After 30 seconds the officer will let you put your foot back down.

The officer will be watching for four signs: if you put your foot down before the test is over; if you hop; if you sway; or if you use your arms to maintain balance. If you do two of these signs, you can be arrested.

The flaw in the one leg stand test is that it may be difficult for many people to maintain this balance even while sober. Age, physical abilities, and weather conditions can all affect this test as well.