Atlanta DUI Lawyers | Georgia DUI Attorneys
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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MIRANDA RIGHTS:
Defendants in custody statements in a DUI are not admissible in
court unless Miranda Warnings were given prior to the statement.
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FIELD SOBRIETY TEST
IMPROPERLY ADMINISTERED: Police must follow their training
exactly when performing field sobriety tests or the result are
meaningless.
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OFFICER’S PRIOR
DISCIPLINARY RECORD: A police officer’s past can affect
his believability in court.
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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.
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BREATH TEST IMPROPERLY
ADMINISTERED: The manufacturer of the Intoxilyzer 9000
breath testing device require a minimum of two tests to consider the
results reliable.
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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.
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EXPERT WITNESSES:
Expert witnesses can discredit the breath tests results, blood tests
results and field sobriety tests.
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MEDICAL AND HEALTH
PROBLEMS:- Medical problems with legs, arms, neck, back and
eyes and diabetes can affect the validity of field sobriety
evaluations.
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BAD WEATHER / HEAVY
TRAFFIC / FLASHING LIGHTS: Bad weather, heavy traffic,
flashing lights can all contribute to driving ability or field
sobriety performance.
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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.
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INCONSISTENT STATEMENTS BY
POLICE OFFICERS: Police often testify inconsistently at
different hearings resulting in opportunities to discredit their
testimony and win your DUI arrest.
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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.
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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.
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BREATH MACHINE IMPROPERLY
OPERATED: Specific procedures, methods and protocols must
be followed for a breath result to be valid and admissible in court.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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ODOR OF ALCOHOL:
The mere presence of alcohol is insufficient to convict a person of
DUI.
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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.
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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.
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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.
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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.
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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.
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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.
George Creal Attorney Profile
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Eric Bernstein, with over 10 years of courtroom experience representing clients in matters ranging from DUI traffic crimes to murder as a Criminal Defense Attorney, is a top rated Attorney. Currently specializing in DUI defense, he also handles major and minor drug offenses, probation, and felony cases. His unparalleled dedication to those whom he represents is demonstrated by the positive reviews and comments received from former clients. Eric is known as the "Burner" by police and prosecutors for his take no prisoners, scorched earth style in the Courtroom. As an attorney who refuses to be pushed around, Eric Bernstein will stand up and fight for you in a court of law.
As his name suggests, there is no Justice without Justin. Justin Goodman has over nine years experience in the courtroom as a criminal prosecutor. He has handled a wide range of misdemeanor criminal offenses including DUI, traffic, vehicular homicide, and domestic violence in his six years as an Assistant Solicitor General. He also spent three years as an Assistant District Attorney in Massachusetts where he litigated misdemeanor and felony offenses in one of the nation's most highly respected District Attorney's offices. He has handled thousand of criminal matters and tried over 50 jury trials. Justin's uncommon insight into the prosecution of crimes in Georgia sets him apart from other lawyers. He knows how to get straight to the weaknesses in the State's case. Justin wins cases where others fear to tread.
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