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Can a Georgia DUI be beat? 44 ways to beat a DUI.


People and lesser lawyers believe that DUI charges are cut and dry. They wrongfully believe that DUI defense is more about damage control on punishment than beating the DUI charges themselves. The problem with that perspective is that is what happens when you just take a look at a the surface of a case or when you look at a snowflake from a distance. From a distance all snowflakes look the same, but if you look up close, no two snowflakes are alike.

The first step to beating a Georgia DUI is breaking down your DUI case into 6 easy pieces or analyzing the problem from first principles: The Traffic Stop or articulable suspicion for an investigative detention, the roadside encounter or DUI detection and Field Sobriety Evaluations, Probable Cause to arrest for DUI, Implied Consent rights for State Administered Chemical tests, Actual or Voluntary Consent for State Administered Chemical tests and the keystone of DUI defense -Reasonable doubt. Reasonable doubt means less than a mathematical certainty but near certitude. If you think the accused is guilty, then the accused is not guilty beyond a reasonable doubt. You have to know that the accused is guilty of DUI either by being less safe due to alcohol consume before or while driving or per se DUI meaning over the legal limit within three hours after driving.

Every Georgia DUI arrest has potential legal and factual issues that could result in a dismissal or a not guilty verdict. An experienced Atlanta DUI lawyer must investigate your case thoroughly to determine what if any potential DUI defenses apply to you. A motion hearing on the suppression of illegally obtained evidence is truly a must in any contested Georgia DUI case. It is borderline malpractice not to have a motion hearing in a DUI case. First, you never really know what a witness is going to say or do until you put them on the witness stand and question them under oath. Georgia law does not require the prosecution to give the Defendant any evidence until 10 days prior to trial which means the first court date that witnesses actually testify. The police do not have to speak to you prior to being subpoenaed and sworn under oath on the witness stand.

Many lawyers will claim that the Defendant will be punished for having a motion hearing by the possibility of the withdraw of the prosecution plea offer. While theoretically possible, I find that this is rarely the case in practice and if the client is properly prepared before court by the lawyer with a Drug and Alcohol Evaluation, DUI school completion certificate and some community service hours, a non-negotiated plea with the Judge is often better than an negotiated plea with the prosecutor anyway.

A thorough case evaluation usually includes requesting documents from the government through discovery and through open records act or freedom of information act requests. You do not always get what you ask for but the worst thing that can happen is that they say no for the cost of a stamp. Reviewing the police reports, incident reports, dash cam video tapes, body cam video tapes and 911 dispatch tapes, viewing the scene on google maps and on google maps street view and attempting to speak with the witnesses prior to trial or hearing is a must in a successful DUI defense.

This means that hiring a qualified, trained, experienced and hard working Atlanta DUI Attorney is crucial!

This list of 44 ways we have beaten DUI cases.

  1. ILLEGAL STOP/ARTICULABLE SUSPICION: Police can not stop your car unless they have a reasonable and articulable suspicion that you violated a criminal law or traffic law. Similarly, Police cannot be detain you on the street unless they have an articulable suspicion of criminal activity. This means more than a hunch or guess work but they have to be able to say before they stop you what crime or traffic violation they think you have committed.

  2. ANONYMOUS TIPSTERS: A vehicle cannot be subjected to a traffic stop simply because an unknown person calls in that the driver is drunk or driving erratically. For a tip to be the basis of an investigative traffic stop, the tip must give enough specific details in order that the information can predict future criminal activity or the tip must be corroborated by police prior to the stop.

  3. STANDARD FIELD SOBRIETY EVALUATIONS ARE MEANINGLESS: Some people are just uncoordinated, out of shape, elderly or infirm. According to National Highway Traffic Safety Administration (NHTSA) police training manuals, the three standardized field sobriety evaluations range from 65% to 77% accurate. The 30 second one-leg stand test is 65% accurate, the horizontal gaze nystagmus (eye jerking/follow the pen or finger test) is 77% accurate and the nine step walk-and-turn test (walking the line test) is 68% accurate. The eye test can not exclude the over 43 different types of Nystagmus or eye jerking caused by conditions other than alcohol consumption. The Standardized Field Sobriety evaluations are not designed for people with injuries, medical conditions, 50 pounds overweight, neck injuries, back injuries, middle ear problems, in heeled shoes over two inches and over 65 years of age. The evaluations if not performed exactly as trained or there results mean nothing because the tests are based on strictly controlled validation studies where the methods and testing are highly regulated and standardized.

  4. NON-STANDARDIZED FIELD EVALUATIONS ARE MEANINGLESS: There is no relationship between touching your finger to your nose, saying the alphabet, counting with your fingers, counting backwards and alcohol impairment. Neither the National Highway Transportation Safety Administration, the Georgia Peace Officer Standards and Training Council or the medical community has established any correlation between these tests and alcohol impairment.

  5. BREATH TESTING IS INACCURATE: it is commonly accepted that a single breath test is unreliable because of sample variance. Georgia DUI breath testing has acknowledged limitations including a +/- 25% variance of +/- 0.02 of the 0.08 per se legal limit for alcohol DUIs, non-specificity for ethanol, unaccounted for breath temperature variations, unaccounted for variations in the partition ratio, uneven alcohol distribution in the blood prior to peak alcohol levels are reached, gender bias, radio frequency interference, interference from acetone, residual mouth alcohol, solvents (benzene, toluene, xylene, ethyl acetate, and methyl ethyl ketones), alcohol vapor in asthma inhalers, confusion with “ol” alcohols like menthol and sorbitol, alcohol in mouth wash, breath mints, breath strips, and menthol smokeless tobacco products., dental problems, etc. These machines have confused publix sheet cake and recent sips of beer with DUI level blood alcohol.

  6. JAIL VIDEOS: Many jails, police stations and other police facilities videotape DUI defendants while in police custody including where they are read testing rights and submit to breath tests, blood tests, failure to adhere to policy and testing procedures, evidence of clear speech, clear eyes, good balance, police threats and intimidation, illegal questioning, coercion, all in contradiction to police testimony from the witness stand.

  7. POLICE IN-CAR VIDEOS: most police agencies video arrests from the police car with cameras located under the rear view mirror commonly referred to as dashcam, recording normal driving instead of impaired driving, normal field evaluations, illegal arrest, improper implied consent rights which must be given prior to a breath test, misinformation, unreasonable coercion and threats, hope of benefit, which can prove the police are lying.

  8. POLICE BODY CAM VIDEOS: most police agencies video arrests body cameras worn on police uniforms, vests or hats, recording normal behavior, normal field evaluations, illegal arrest, improper implied consent rights which must be given prior to a breath or blood test, misinformation, unreasonable coercion and threats, hope of benefit, which can prove the police are lying.

  9. STATUTORY SPEEDY TRIAL DEMANDS: Georgia state law require that all criminal defendants be given a speedy trial within two terms of court of their demand. If the trial is delayed beyond this time period or for an unreasonable prior as a result of delays of the court or prosecutor, the charges must be dismissed.

  10. CONSTITUTIONAL SPEEDY TRIAL DEMANDS: The U.S. and Georgia Constitution require that all criminal defendants be given a speedy trial within a reasonable time demand if timely asserted. If the trial is delayed beyond this time period or for an unreasonable prior as a result of delays of the court or prosecutor, the charges must be dismissed.

  11. CRIME LAB BLOOD TEST INACCURATE: Crime lab procedures are sometimes ignored and short cuts taken that cause blood test results to be questionable. Sample switching; expired blood collection kits; blood mail unrefrigerated in the U.S. postal service for weeks are just a few examples of blood testing weaknesses, improper calibration, substantive coelution. Coelution is the process whereby two or more chemical compounds elute or exit from a chromatographic column at the same time, making separation and identification difficult.

  12. HOSPITAL BLOOD TEST INADMISSIBLE: Hospital blood tests are for diagnostic purposes and labs do not meet forensic guidelines for criminal trials. Hospitals test serum and not whole blood. Further, collection and sampling techniques are not approved by the crime lab.

  13. BREATH TEST OPERATOR CREDENTIALS: Georgia Law requires that Breath Test Operators must be certified and possess a valid, unexpired operator’s license (licenses are only good for 4 years), or the breath test results can be excluded from evidence.

  14. PORTABLE BREATH TESTING DEVICE NOT ON APPROVED LIST: Portable breath testing instruments must be approved by the Georgia Bureau of Investigation Division of Forensic Services to be admissible in court.

  15. DUI REQUIRES PROOF OF DRIVING: You can not be convicted of DUI unless there is proof beyond a reasonable doubt of driving or that the vehicle moved.

  16. INDEPENDENT WITNESSES: Witnesses. Witnesses. Witnesses. Family members, bar patrons, waiters, bartenders, managers, friends, doctors, nurses, emergency medical technicians, ambulance drivers, other drivers, firefighters, restaurant/bar workers can be vital to proving a defendant is not impaired by alcohol.

  17. MIRANDA RIGHTS: Defendants in custody statements in a DUI are not admissible in court unless Miranda Warnings were given prior to the statement.

  18. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED: Police must follow their training exactly when performing field sobriety tests or the result are meaningless.

  19. OFFICER’S PRIOR DISCIPLINARY RECORD: A police officer’s past can affect his believability in court.

  20. PORTABLE BREATH TEST NUMERICAL RESULTS ARE INADMISSIBLE: Georgia law prohibits the use of portable breath testing results other than positive or negative for the mere presence of absence of alcohol. The numerical result is inadmissible.

  21. BREATH TEST IMPROPERLY ADMINISTERED: The manufacturer of the Intoxilyzer 9000 breath testing device require a minimum of two tests to consider the results reliable.

  22. FAILURE TO CONDUCT A PRE-BREATH TEST OBSERVATION PERIOD: Georgia breath testing training procedures requires that a suspected DUI driver be closely monitored for a minimum twenty minutes prior to a breath test sample to exclude extraneous alcohol and obtain a valid result.

  23. EXPERT WITNESSES: Expert witnesses can discredit the breath tests results, blood tests results and field sobriety tests.

  24. MEDICAL AND HEALTH PROBLEMS:- Medical problems with legs, arms, neck, back and eyes and diabetes can affect the validity of field sobriety evaluations.

  25. BAD WEATHER / HEAVY TRAFFIC / FLASHING LIGHTS: Bad weather, heavy traffic, flashing lights can all contribute to driving ability or field sobriety performance.

  26. LACK OF PROBABLE CAUSE TO ARREST: Police must have probable cause of impaired driving ability to arrest you for DUI. Merely proving that you drank alcohol is not enough.

  27. INCONSISTENT STATEMENTS BY POLICE OFFICERS: Police often testify inconsistently at different hearings resulting in opportunities to discredit their testimony and win your DUI arrest.

  28. DRINKING AFTER DRIVING STOPS: The State must prove that alcohol consumed before or while driving caused a given breath result or impairment. Post driving drinking will cause the test results and on scene police observations to be tainted and irrelevant.

  29. LIMITATIONS OF BREATH TESTING FOR ALCOHOL: There are many alcohol substances which be confused as alcohol from drinking on the Intoxilyzer 9000 or the Georgia DUI Breath Test machine such as asthma spray containing alcohol vapor, cough drops, menthol smokeless tobacco, paints, fingernail polish and publix sheet cake. These items can cause the breath results to be invalid and inaccurate.

  30. BREATH MACHINE IMPROPERLY OPERATED: Specific procedures, methods and protocols must be followed for a breath result to be valid and admissible in court.

  31. POLICE DISPATCH RECORDINGS: One of the most under utilized pieces of evidence. Police stops are recorded on 911calls or police radio traffIc. These tapes can be used to prove your case and win your DUI.

  32. BREATH TEST RIGHTS: Any misleading statement by the police regarding the consequences of taking a state administered test under the implied consent law (or refusing) a blood, breath, or urine test will cause the one year license suspension to be reversed and removed from the driver’s record and any evidence of the test to be excluded from the criminal trial.

  33. STATUTES OF LIMITATIONS: A misdemeanor charge of DUI must be stamped filed on the uniform traffic citation or an accusation filed within two years of the date of offense or the prosecution is barred.

  34. CIRCUMSTANTIAL EVIDENCE: Circumstantial evidence or evidence that merely implies a fact is not sufficient to prove a DUI case unless all circumstance evidence is consistent with guilt and excludes every other possibility but the guilt of the accused.

  35. FAILURE TO CALIBRATE THE BREATH TEST MACHINE QUARTERLY: Georgia state administered breath test on the Intoxilyzer 9000 must be calibrated at least quarterly as required by GBI DOFS rules and the failure to regularly inspect and calibrate the breath test machines by Georgia Implied Consent Area Supervisors can be used to discredit breath test results with a judge or jury.

  36. ILLEGAL ROADBLOCKS: Police DUI Roadblocks are an exception to the 4th Amendment prohibition of unreasonable searches and seizures. DUI road blocks must meet Constitutional minimum standards. DUI road blocks must be approved by a supervisor at the programmic level of police administration and not by officers in the field.

  37. FULL INFORMATION: Person arrested for DUI who submit to DUI blood or breath alcohol tests are entitled to full information regarding these tests upon request by them or their DUI attorneys or the tests can be excluded or trial continued.

  38. ODOR OF ALCOHOL: The mere presence of alcohol is insufficient to convict a person of DUI.

  39. REFUSAL OF COMPELLED BREATH TESTING. The Georgia Constitution gives every person the right not to provide evidence against themselves including field tests and breath tests. The refusal of these tests is also not admissible.

  40. ACTUAL CONSENT FOR A BLOOD TEST. The 4th Amendment of the U.S. Constitution requires actual consent for a blood test since a blood test is considered a search under the Fourth Amendment in the Bill of Rights of the U.S. Constitution.

  41. BLOOD TEST MARGIN OF ERROR. All scientific testing is subject measurement uncertainty. A scientific test such as a blood test only can state a range within which a result will fall depending on the how many standards of deviation are used. Sometime that range falls below the legal limit which is an excellent reasonable doubt.

  42. APPEARANCE AND DEMEANOR. By their deeds ye shall know them. Sometimes accused just looks sober. If it doesn’t waddle, doesn’t quack, doesn’t have feathers and doesn’t have a bill, then it does not matter that some tests say it is a duck, when you can clearly see it is not.

  43. REASONABLE DOUBT. The old fashion way to beat a DUI is to have a jury trial or a judge trial and demonstrate that the State can not prove their case beyond a reasonable doubt. A criminal defendant is presumed to be innocent until proven guilty. The defendant enters upon the trial of the case with a presumption of innocence in his/her favor. This presumption remains with the defendant until it is overcome by the State with evidence that is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the offense charged. Georgia law provides that no person should be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt. The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. 
    There is no burden of proof upon the defendant whatsoever, and the burden never shifts to the defendant to introduce evidence or to prove innocence. However, the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty. A reasonable doubt means just what it says. A reasonable doubt is a doubt of a fair-minded, impartial juror honestly seeking the truth. A reasonable doubt is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, or a conflict in the evidence. Although a reasonable doubt does not require mathematical certainty, it does require near certitude. If a juror’s or judge’s mind is wavering, unsettled, or unsatisfied, then that is a doubt of the law, and Georgia law requires that you must acquit the defendant. But, if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant. If the State fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.

  44. JURY NULLIFICATION. The jury is the conscious of the community. If the jury believes that a Defendant has violated the letter of the law but not the spirit of the law or that a conviction would not be just, right or fair, then the jury may acquit the Defendant anyway. The requires an acquittal if reasonable doubt exists, but only authorizes a conviction but does not require one if the State proves guilt beyond a reasonable doubt. 

To learn more contact us at 404–333–0706 or by email at firm@georgialawyer.com.





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George C. Creal, Jr. is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Metro DUI lawyers with both an AV Preeminent rating from Martindale.com and a 10.0/10.0 Superb rating on Avvo.com.  With over 100 not guilty jury verdicts under his belt, George knows how to convince a jury that the State has not proven his client guilty of DUI beyond a reasonable doubt.
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No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI arrests occurring in the State of Georgia. Individuals with DUI from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2014 George C. Creal, Jr. P.C.
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