1. Refusing a Blood or Breath Test is Not an Admission of Guilt:
Georgia law only provides for a presumption of the presence of a prohibited substance in your system if you refuse to take a State-Administered Blood or Breath test in a DUI case.
2. If You Refuse the Test You Will NOT Definitely Lose Your License for One Year:
If you refuse to take a breath or blood test, a license suspension is not automatic. If you send a letter with the $150 filing fee to the Georgia Department of Driver Services within ten business days of your arrest a drivers license hearing will be scheduled with your arresting officer at the Office of State Administrative Hearings. Only after this hearing can a driver's license be suspended for refusing a State-Administered Test. In fact, refusal suspensions are quite rare when represented by an attorney who can negotiate the suspension during the drivers license hearing.
3. You Can Beat a Breath or Blood Test Result DUI - It is Not Hopeless:
Because there are many opportunities for a strong defense in cases with State-administered results, we regularly beat DUI cases with blood and/or breath tests as evidence. For one, was the stop legal? Many cases can be dismissed because of illegal stops. Second, was there enough evidence - probable cause - to arrest you for DUI in the first place? Although relatively rare because the standard for probable cause is so low, we have won a number of DUI cases based on a judge finding no probable cause for a DUI arrest. Third, did the police officer correctly read you the implied consent rights? This is the most common source of police error in DUI cases. We have had hundreds of DUI cases thrown out due to the Implied Consent rights or DUI testing rights not being read in the correct manner or at the correct time. Fourth, were the breath test machine or blood testing records maintained or functioning properly? This is another area of success for our firm in defeating DUI cases. Finally, there is the inherent weaknesses in the science of breath testing creating doubt for jurors. We have won breath tests as high as .143 in front of a jury simply by demonstrating that breath testing is not as reliable or accurate as the State contends. We often contrast the relative sobriety of our client on the video with the high breath test reading and simply ask, "do you trust your common sense, your eyes and ears or the government's junk science?" The truth of our position is affirmed on a monthly basis by news stories of hundreds of DUI convictions based on flawed alcohol breath testing technology being thrown out. Don't trust us? Google it yourself.
4. Field Sobriety Tests Are Not Reliable Indicators of Alcohol Impairment:
The three most commonly used field sobriety evaluations are the Horizontal Gaze Nystagmus Test, or eye jerking test, the nine step walk and turn, and the 30 second one leg stand. These tests supposedly correlate specific clues with blood alcohol levels, but not "impairment" as so often testified to by police on the witness stand.
These tests were validated by NHTSA in the 1970's in a controlled environment using a cross-section of the population and found that they are reliable around 70% of the time. Other non-controlled studies have been done with higher percentages, but they have been by police and in the field after midnight, which tends to focus on a much narrower cross section of the population.
HGN is naturally present in approximately 10% of the population without the presence of alcohol. Medical disorders such as inner ear infections, vertigo, water in the ear and Meniere's Disease can cause the eye to jerk or HGN as if alcohol had been ingested. DUI police officers tend to use more than the standardized number of passes for the HGN test and move the pen or target object back and forth several times more. They claim to be making sure they are performing the entire test, but in reality they are actually inducing eye jerking or HGN.
Most police officers can't even name the muscles of the eye they are testing during HGN. The HGN tests the lateral and medial rectus muscles as well as the cranial nerves that innervate the muscles. The 6th cranial nerve, or the abducens, is tested by the HGN procedure. These muscles are like "rubber bands" and easily fatigue and begin to spasm or "jerk" when over-stimulated. That, of course is the same HGN produced by alcohol ingestion.
The Nine Step Walk and Turn and the One Leg Stand are divided attention dexterity tests. These tests are easier to do with practice. The first time you try them they are often impossible regardless of whether you have been drinking. Just ask them about how long it took them to learn to ride their bicycles, ice skate, roller skate or perform yoga balancing moves. Many athletic activities require practice and frequent repetition in order to perform fluidly, which has no relation to alcohol consumption.
The Romberg test is another sobriety evaluation that is misunderstood and misapplied by police in DUI investigations. In the Romberg test, the subject is asked to stand with feet together, tilt the head back slightly, close the eyes, and estimate 30 seconds. The Romberg Test is a test for Upper Motor Neuron disease. Many older adults will fall over when performing this test without the presence of alcohol.
We encourage our juries to try these tests back in the jury room so they can see how easy they are to fail.
5. You Will Not Get 10 Days in Jail for a First DUI Arrest:
Although the DUI Statute describes the punishment for a first DUI as ten days in jail, it also allows the judge to probate all but 24 hours in jail. Practically speaking, sometimes first time DUI offenders may get no additional jail at sentencing.
6. The State-Administered Breath Test at the Jail or Police Station, the Intoxilyzer 5000, is Not Always Accurate and Can be Beaten in Court:
The Intoxilyzer 5000 alcohol breath test machine is flawed, because it has to make assumptions. It assumes, for one, that your body temperature is normal. If you have a fever, every degree of body temperature variation from normal will cause a 7% change in the breath test result. It assumes your "partition ratio" is 1:2100. This means that for every particle of alcohol in your lungs, it assumes there are 2100 particles in your blood. Human partition ratios can vary from 1:1500 to 1:3400. It assumes that your blood alcohol level has peaked and is decreasing. It generally takes 30 minutes on an empty stomach and 2 hours on a full stomach for your blood alcohol to peak. If you blow before you peak, then your breath alcohol level can be as much as 50% higher than your blood alcohol level, because breath alcohol comes from your arterial blood system and blood alcohol level is drawn from your veins. Given the same body size, women will have a higher blood alcohol level than men after drinking the same amount of alcohol, so using blood alcohol levels as a per se determination of DUI discriminates against women. Also, the Intoxilyzer 5000 has a margin for error. It can vary as much as .02 between samples because of variations in deep lung air. It can mistake solvents such as acetone and ketones as blood alcohol on the breath. Radio frequency interference from cell phones can cause errors in breath alcohol readings. It can also mistake residual mouth alcohol from burping and belching as blood alcohol. The Intoxilyzer 5000 used in states where it is calibrated between every test automatically rather than every three months averages 80 errors per month. This is not science fiction. We have the police training manuals and owner's manuals that spell out these very flaws and we use them in court.
7. The Legal Limit of 0.08 BAC is Not Necessarily Drunk:
Most people think that if you blow over 0.08 (the legal limit for BAC in Georgia) that you are drunk. Not true. Most people can perform field tests quite well at the .08 level and not have slurred speech, stagger or stumble. They are simply not be drunk, although they may not be sober. Alcohol affects different people differently. Some people are not even drunk at .13 or .15 and that is why if you refuse to blow or we get the breath test thrown out of court, we can often win your case. If the State does not have breath or blood, they have to prove that you are either less safe to drive or that you are drunk, which is often hard to do because the legal limit is so low and seemly arbitrary.
8. You Don't Have to Pay a Court Appointed Attorney Before You Go to Court:
Although in some jurisdictions you will have to reimburse the county for a court appointed attorney, you will never have to pay one up front. If someone calls you and says they have been appointed by the court to represent you and the ask for money up front, call the State Bar of Georgia or tell the judge, because you are being scammed.
9. If Your Attorney Tells You to Plead Guilty at Arraignment, He Probably Has Not Done His Job:
Most Courts don't provide attorneys with needed evidence to evaluate your case until at least after arraignment and sometimes not until 10 days before trial. Before you plea, make sure your lawyer has reviewed the police report and video tape.
10. Good Lawyers Are Not Cheap, and Cheap Lawyers Can Cost You a Lot:
Cheap lawyers are just in it for the money. They are about getting in and out of court in as little time as possible. It does not matter if you win, lose or get creamed. They are only about minimizing time and maximizing money.
Cheap lawyers use unethical methods to obtain clients and often violate Georgia bar rules in the process, See Georgia Bar Rule 7.3.They will pay people in the system, like bail bondsmen, impound lot workers, EMT, or police to solicit you. A lawyer who pays people to recommend them is a violating the Georgia bar. Unsolicited personal contact by a lawyer or any other person to hire a certain lawyer is unethical and a violation of the Georgia Bar. The only legal way to market to potential clients is through non-verbal advertisements, pamphlets and direct mail. Quality lawyers do not chase cases or hire people to direct you to them. So, if you were verbally solicited by a lawyer, either directly or indirectly, run away before it is too late! If they are willing to risk their right to practice law in Georgia to get money, think about how easily they will disregard your rights for an easy profit. You can often identify them: first, if you were illegally solicited in this way, and second, because as soon as you hire them you can never get a hold of on the phone.
Good lawyers work for client referrals and know that justice and results take time. Time reviewing and investigating your case, and collecting videos, police reports, medical records and witness statements. Time waiting in court and going back to court again and again to wait for that good deal or opportunity for a dismissal that is right around the corner. All lawyers sell time by charging by the hour. Some may charge a flat fee, but they are just averaging their time spent over all of their cases. Ask your attorney how many DUI cases he has taken to a jury trial and won. If they never have or if its been more than a few years, you should be worried. If they tell you to plea at your first court appearance you should be very very worried. If they don't have a copy of the police field sobriety training and breath test manuals, then they are not fighting high volume of DUI cases. You will not be able to get cheap, negligible lawyers readily on the phone. Good lawyers are always available. They will give you an email address and their cell phone numbers sometimes even before you retain them. Good lawyers are always accessible, but this type of access takes time, and time costs money.
Beware of experts and specialist designations and badges in certain areas of law. Great lawyers are measured in the courtroom not in the boardroom or the classroom. Georgia Bar Rule 7.4 allows lawyers to truthfully communicate the fact that they are a specialist or are certified in a particular field of law by experience or as a result of having been certified as a "specialist" by successfully completing a particular program of legal specialization. An example of a proper use of the term would be "Certified as a Civil Trial Specialist by XYZ Institute" provided such statement would not be false or misleading and provided further that the Civil Trial Specialist program of XYZ Institute is a recognized and bona fide professional entity. Any lawyer can take a class and get a certificate but having specialized knowledge and getting "not guilty" verdicts in the Courtroom are two different things. Specialization is only useful if you know how to use it in front of a jury. Ask any lawyer you interview when the last time they contested a DUI before a jury and if and when they had gotten any "Not Guilty" verdicts at trial. A real DUI lawyer will have won at least a few jury trials in the last year to six months. Prosecutors know, fear, and give good deals to lawyers they know are a threat in the courtroom and not that are certified, specialized, or have classroom experience.
George C. Creal, Jr. is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Atlanta DUI lawyers with both an AV Preeminent rating from Martindale.com and a 10.0/10.0 Superb rating on Avvo.com. He has over 100 "not guilty" verdicts under his belt and has forged indispensable relationships with police, judges and prosecutors all over the State of Georgia in order to benefit his clients' defense. George Creal Attorney Profile+