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.

When a defendant is convicted of a state law crime such as murder, he will generally file an appeal to a state appeals court.   Appeals generally involve supposed errors of law – the defendant may contend that certain evidence was improperly admitted or that the jury instructions were wrong.   Except in rare instances the appeals court will not reverse a conviction based on the judge or jury’s evaluation of the evidence.  In other words, an appeal of a criminal conviction is not a new trial – the defendant must convince the appeals court that the trial court made significant errors that could have changed the outcome.

If a defendant loses his state court appeals and does nothing further, the state will enforce its penalty by leaving the defendant in prison, or in capital cases, by executing the defendant.

Because “death penalty” cases involve the ultimate penalty, capital defendants have a second layer of appeal available to them under a concept called “habeas corpus,” which allows a federal court (and federal appeals courts, up to and including the United States Supreme Court) to consider issues involved in the state court trial or subsequent appeal as Constitutional matters.  The “due process” clause of the 14th Amendment to the Constitution guarantees all citizens fundamental fairness and justice in all criminal prosecutions, and the federal court can review the decisions of the state trial and appeal courts even in cases not involving federal criminal law.

Successful habeas corpus appeals are rare.   Federal judges have the power to decide which cases they will consider – thus there is no guarantee that the federal courts will accept a case for review.  The further along the appeal process a case travels, the less likely that it will be heard, much less be decided in the defendant’s favor.   Very, very few cases end up before the United States Supreme Court – only cases involving important legal issues with far reaching consequences will be accepted by the Supreme Court for review.

One such case that has made it through both state appeals procedures and federal appeals procedures all the way to the United States Supreme Court is the case of Wellons v. Hall, the case involving the chocolate penis.

Defendant Wellons was convicted by a Cobb County jury of the rape and murder of a 15 year old girl named India Roberts.  Because of the vile and horrible nature of the crime, the jury sentenced defendant Wellons to death for the murder and life in prison for the rape.

After the trial was over, however, several of the jurors made the bizarre decision to give the trial judge a gag gift consisting of a chocolate penis.  None of the parties involved dispute this fact.  The defense attorneys also claim that the jurors gave the court baliff two chocolate breasts, although several of the parties involve dispute this part of the story.

In any case, the trial judge did not report this activity to the defense or the prosecution – the judge asserts that the “gift” was received after the trial and thus was not relevant.

Following the conviction, defendant Wellons and his defense team filed appeals in both state court and in federal court.  At every stage, his appeal was denied, mostly on procedural grounds.  In 2009, the Supreme Court took the very unusual step of accepting Wellons’ appeal for review and in a written opinion, vacated the conviction and sent the case back to the 11th Circuit Court of Appeals with direction to consider whether Wellons received a fair trial given the bizarre activities undertaken by the jury.

The Supreme Court’s actions do not mean Wellons will be released from prison or that he will likely be found innocent.  His defense, by the way, was that he was mentally ill and insane and therefore unable to form the specific intent required for a capital murder conviction.  Insanity defenses are notoriously difficult to prove and my reading of the Georgia Supreme Court’s opinion suggests that Wellons would likely be convicted by any reasonable jury considering the facts.

However, if the 11th Circuit Court of Appeals does find that the jurors actions mean that Wellons did not receive a fair trial, then Cobb County will have to go to the time and expense of retrying a 20 year old murder case, and India Roberts’ family will have to go through the stress of reliving the nightmare of the murder.

In its opinion, the Supreme Court notes that “from beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”   Even in the case of a murderer who is likely guilty inappropriate activities by the  jury will undermine the public’s confidence in our judicial system.

What do you think?  Is the Supreme Court creating a lot of work for Cobb County because of a technicality or is the principle here important enough to warrant a new trial for the defendant?   The Atlanta newspapers wrote about this case in February 2010 – you can read the article by clicking on the link.

The state of Georgia has enacted strict penalties for those individuals arrested of DUI. While criminal laws are designed to serve as a deterrent factor, there will be some individuals who are willing to gamble against the odds of being charged and later convicted. For those individuals who are first-time DUI offenders, the below serves as an outline of punishments and/or consequences to be expected. Noted below are the possible sentences and/or fines for first-time DUI offenders. These punishments do not take into consideration any aggravating factors such as a prior conviction, destruction of personal property other than their own, and loss of life.

Consequences for first-time DUI offenders with no aggravating circumstances

• Suspension of driver’s license for a period of one year.
• Minimum jail sentence of one day. Normal length of incarceration is ten days to one year. If sentence is less than 12 months, the defendant will be sentenced to serve probation for a period of 12 months.
• 40 hours of community service for those individuals 21 years of age and older. Defendants below the age of 21 will be required to complete 20 hours of community service.
• Monetary fines between $300.00 to $1,000.00
• Defendant will be required to pay all court ordered costs to include filing fees and court appointed attorney fees.
• Defendant will be required to complete a certified DUI course at the expense of the Defendant.
• Completion of a Risk Reduction Program
• A lifetime record of a DUI conviction.

A DUI charge of any magnitude is an important matter and should be taken seriously. Any individual charged with driving under the influence should immediately seek the advice of an attorney specializing in criminal law.

The bill, introduced by State Representative Rob Teihet, a democrat who is also running for Attorney General, would require anyone arrested for a felony to provide a DNA sample at the same time that fingerprints and mug shots are taken.

The bill is being pushed by the Surviving Parents Coalition, a group of parents whose daughters were killed in violent crimes. 3 years ago, Joan Berry, whose daughter Johnia was killed while a student at the University of Tennessee, pushed the law in Tennessee. “The Johnia Berry Act was passed in Tennessee and that same year an arrest was made due to a DNA match, so Jonia’s murderer was finally found,” she says.

The Surviving Parents Coalition says that mandatory DNA sampling for those arrested on felony charges in Georgia would solve murders and keep people safe. At a news conference, Teihet presented data showing that almost 130 crimes could have been prevented in 3 states if DNA had been collected.

Teilhet says he knows that the state budget is lean and the GBI already has trouble keeping up with current DNA tests. “There is a backlog now,” he says. “One of the things we as a state have to do is simply decide that, consistent with our values, this is a priority.” Officials have said that while the biggest downside of the bill would be the cost, in the long run, it would create more criminal justice jobs.

21 states already have laws requiring DNA samples from anyone arrested for a felony, and Georgia may be the next when Teilhet introduces the legislation. Teilhet says he’s aware that privacy advocates may have problems with mandatory testing, but he has law enforcement backing it as an additional crime fighting tool.

The legislation, SB-325, was introduced by Senator Gloria Butler. Representative Pedro Marin plans to introduce a similar bill in the House. The issue came to light when Cobb County resident Mark Bell, an African American, left his home after 10 pm a few months ago to go to the grocery store. A police car pulled up behind Bell, checked his license plate, and followed him all the way to the store. Bell said while the officer never stopped him, the message was clear. “It was racial profiling,” Bell said. “Here in 2010, that is unacceptable in Georgia. A black man can’t leave his house after 10 pm without being profiled. You become fearful. It is mentally nerve-racking.”

Under Butler’s bill, police officers would be required to record the age, gender, race and ethnicity of every person they pull over. That data would be analyzed to detect trends that could show whether racial profiling is happening. The bill also calls for annual officer training. Butler said it would not add to the budget.

“We think this bill is necessary, because racial profiling is a pervasive and serious problem,” Butler said. “People of color are more likely to be stopped and searched by police. Racial profiling is ineffective and based on false assumptions.”

According to an attorney for the ACLU of Georgia, Azadeh N. Shahshahani, 26 states prevent racial profiling of motorists. Florida, Tennessee, North Carolina and Louisiana are the only states in the Southeast that ban the practice. Shahshahani added that 14 states have laws that mandate collection of stop and search data.

“We know that if your skin color is darker than mine or your religion is not Christian, you are likely to be racial profiled,” said the Rev. Tracy Blagec, the vice president of Atlantans Building Leadership of Empowerment, which has joined lawmakers, along with the ACLU, to get the legislation passed. “People like me don’t get pulled over.”

Sen. Donzella James (D-College Park) said her son was stopped and questioned about why he was driving a nice car and dressed up. Nan Orrock (D-Atlanta), who is white, recalled stories of how her son would get stopped when he was riding in cars with young black men.

Representative Marin, who is Hispanic, said it is good timing for this bill. In 2004, 117 members of the House voted yes on a racial profiling bill, but it later died in conference committee. “It has been a long struggle to get this bill before the governor,” Marin said. “But I truly believe it is the right time to get the bill signed, enacted and placed into law.

For example, if a 17-year-old boy takes a pornographic photo of his 17-year-old girlfriend and sends it to his friend; both boys are guilty of a 20-year felony. In Georgia, sending a pornographic photo via text message of someone under the age of 18 is a felony, even if the sender is a minor.

One aspect of Georgia law that is often misunderstood by teenagers has to do with underage drinking and driving. While many teenagers think they can have a few drinks and drive without getting a DUI, this is not true. The blood alcohol level in Georgia must be .02 or higher for an underage person to get a DUI, and many teens don’t realize that only one drink will often put them over this limit. For anyone under the age of 21 to get behind the wheel of a vehicle with any alcohol on their breath, they are absolutely risking, and probably will get, a DUI.

Another common question teens often ask is if an underage person is at a party that has alcohol, but is not drinking, can they be arrested? The answer is no. It is not against the law to be at a party where kids are drinking alcohol; it’s just against the law to be drinking as well. If police do come and you have not been drinking, Morgan recommends asking for a Breathalyzer to prove your innocence.

Morgan, the author of “Ignorance is No Defense,” a guide for teenagers and their parents on Georgia law, wants to provide teens and their parents with information meant to deter the act of crimes, as well as to help teens avoid becoming the victims of crimes. He believes most young people will make wiser decisions if they have given it some thought ahead of time and have the legal knowledge.

Kathy Hodges, a counselor at Savannah Country Day School where the program will be held, said the program will help students to make good decisions. “We’re concerned that kids can make decisions without really understanding the full ramifications of them,” said Hodges. “We feel that part of our obligation in educating kids is to help them understand the consequences of decisions.”

If the bill passes, it would go into effect July 1 and make Georgia the 20th state to make texting while driving illegal. Nine states ban text messaging for teen drivers.

According to Rep. Peter Barca, a bill author, texting while driving “is more serious than driving drunk because your eyes are off the road for just too long. Make no mistake about it: People are killed by people texting messages.”

The bill has the support of AAA Auto Club, which wants to see similar laws passed in every state by the year 2013. Kevin W. Bakewell, senior vice president of the AAA Auto Club South, said the ban on texting is AAA’s top legislative priority, as multiple studies have shown the practice to be an extremely dangerous distraction for drivers due to the extended time drivers’ eyes are off the road.

Peake says the bill is a step in the right direction for Georgia. He stopped short of a total ban on cell phone use and says the legislation addresses the “more dangerous” practice of texting. “I used to text like crazy while driving, I had no idea what was going on around me, and that’s scary. I knew I needed to make some changes before I hurt myself or someone else.”

Peake said the law may also be difficult to enforce, but hopes that having a law on the books which could cost drivers who get caught at least a $50 fine and two penalty points on their driver’s licenses would be a deterrent. A study in California shows that a ban in the state reduced texting while driving by 70 percent.