What does it take for someone under 21 to be arrested for DUI? An odor of alcohol and an admission of drinking is enough regardless of impairment. In Dodds v. State, 288 Ga. App. 231 (2007), a 19 year old male was stopped by police as a result of his tag frame partially covering his license plate validation sticker. There was an odor of alcohol about the young man and he admitted to drinking two beers earlier. There was no evidence of less safe driving, unsteadiness, slurred speech, red and glassy eyes. Although the Georgia Court of Appeals held that he could not be arrested for less safe driving as a result of alcohol consumption or drunk driving, he could be arrested for driving with a blood or breath alcohol over 0.02 even without a valid breath test or even a field sobriety test indicating that his blood or breath alcohol was over 0.02. The admission of drinking and odor of alcohol was enough to arrest and take to jail. Talk about zero tolerance. What should you do if your are under 21 and driving with any alcohol on your breath? Give your identifying information, ask for an attorney and remain silent. Any breath sample or statements will land you in jail and without a breath sample the government has to prove you are a less safe driver which in most cases they can't do. You will lose your license regardless of what you do, so there is no incentive to cooperate.
State v. Smiley, A09A1827 (12/22/2009). Attorney George Creal is first lawyer in Georgia to have the exclusion of Intoxilyzer 5000 DUI breath test results by a trial court affirmed by the Georgia Court of Appeals for failure of the state to produce full information as required by state law including the mysterious Intoxilyzer 5000 computer source code. Although the precedential value of the case is limited to the particular circumstances of this case by the opinion. The opinion does have some value for DUI practitioners. The between the lines ruling is that they affirmed the production of everything from training manuals of the intox operator and area supervisor to quarterly calibration results to maintenance records to the intox 5000 computer source code. What is really interesting is how the Court of Appeals ignored the constitutional arguments that lack of information violates due process and the Defendant's 6th Amendment rights by not allowing cross examination of the self admitting calibration certificates allowed by statute of the DUI breath test, is burden shifting as it requires the Defendant to hire an expert to challenge a test result and denies the defendant right to counsel by preventing a thorough and shifting cross examination of the breath test result. At least the decision is something to counter the decision in STETZ v. THE STATE. A09A1474., Court of Appeals of Georgia, Decided: October 28, 2009 which only allows the breath strip as full information. Under Stetz, the intox 5000 could be a random number generator and no one would ever know. The bottom line is that the Georgia Court of Appeals will give the trial judge pretty broad discretion to rule on dui breath testing full information as if it was discovery, but according to Justice Johnson's concurrence, the records custodian for the agency that owns the breath test machine and the area supervisor will have to be subpoenaed to every motion hearing to testify about what records they have in their possession in order for a court to even order full information. After Smiley what is left for the DUI practitioner is the power of the Intoxilyzer 5000 Full Information subpoena, I have subpoenaed some pretty good stuff for recent DUI jury trials including a DUI breath test sample variance of .032 (the legal limit is 0.08) and some great stuff on the partition ratio of the Intox 5000. The Intoxilyzer 5000 service manual that we subpoenaed revealed information that fever, body physiology, and gender can influence the breath result negatively. Amazingly enough, the partition ratio flaws of the Intox 5000 are all covered in the area supervisor’s training manual. The State even trains its machine operators not to bring their training manuals to court because of the damaging information contained in them. The rest of the DUI breath test full informatoin comes form the GBI-DOFS log maintained with the intox 5000, calibration records and maintenance records. The criminal bar needs to continue assaulting the Intox 5000 across the state and bring it down. The Intox 5000 is not even admissible in Florida anymore now that the Intox 8000 has revealed about 70 bad tests a month for individual Intox breath testing machines on the same technology but with calibration testing for every defendant breath test instead of quarterly with an area supervisor.
In Potter v. State, A09A2109, December 3, 2009, the Georgia Court of Appeals held, in a DUI and vehicular homicide case in Walker County, LaFayette, Georgia, that a DUI prosecution may be based on a hospital blood test which uses only blood serum rather than whole blood as required by Georgia law when the State produced an expert that testified that the serum blood test will generally overstate the whole blood alcohol level by a maximum of 20 percent. The Court held that other states have used this procedure and it has been validated as scientifically reliable for the purpose of a criminal prosecution.
In England v. State, A09A2181, December 2, 2009, the Georgia Court of Appeals held in Forsyth County DUI arrest heard in Cumming, Georgia, that when asked by a police officer for a breath test under the implied consent law and the driver replies "I would rather have a blood test" is not an request for an independent or additional test under the Georgia Implied Consent law if the officer then redesignates blood as the state administered test. This is even true the Blood test was performed at a hospital and paid for by the Driver who thought that the blood test was his independent test. Further, Defendants are not entitled to cross-examine lab technicians that assist State Toxicologists in Dui Blood tests cases as long as they don't do anything but run the machine and do not interprete the results.
The Georgia Court of Appeals held in Strickland v. State, A09A0988 that pretrial bond conditions set by a Gwinnett County DUI Judge in Lawrenceville, Georgia do not violate the double jeopardy provisions of the United States and Georgia Constitution. The Gwinnett County DUI defendant had been arrested for her 3rd DUI with a blood alcohol level of .326. The DUI Court set bond conditions for her release pending trial as follows: limited driving privileges driving to the hospital for substance abuse treatment, driving to school, driving to court, only operate a vehicle with a breath testing device attached or an interlock device which turns the car off if the driver shows positive for the presence of alcohol, and submit to a DUI Court evaluation. The Georgia Court of Appeals held that this was not punishment but reasonable related to the public's safety.
It is hard to imagine how anything other than driving could endanger the public by the release of the Defendant still presumed innocent. The limitation of driving is obviously reasonable, but the DUI Court evaluation is just as clearly punishment and not reasonably related to public safety. I suspect that the trend in the future that more and more DUI arrestees will be required to begin AA meeting, Drug and alcohol evaluations, be required to abstain for alcohol consumption by all manner of devices prior to trial just to stay out of jail. This opinion is clearly a step in that direction and it is a slippery slope.
In Davis v. State, A09A2057, November 13, 2009, the Georgia Court of Appeals affirmed the judgment of the State Court of Troupe County in LaGrange Georgia in the DUI conviction of Franklin Attorney Dock H. Davis. Mr. Davis represented himself. Mr. Davis was in an accident a 6:15 p.m. wherein he allegedly hit a utility pole in Franklin, Georgia. Officers found Mr. Davis when they went to his house. According to Officers, Mr. Davis had a faint odor of alcohol, slurred speech, stumbled, had glazed eyes and his complexion was patsy. He took an additional blood test at 8:55 P.M. and registered a 0.053. The legal limit in Georgia is 0.08. A forensic toxicologist testified that at 6:15 p.m., Mr. Davis' blood alcohol at 6:15 p.m. would have been between 0.078 and .115 depending on how fast he metabolized alcohol. The Court of Appeals found that there was sufficient evidence to find him guilty of DUI less safe. The Court Appeals also found that Mr. Davis enumeration of error that the Court refused to charge accident was misplaced as accident does not apply to DUI charges as they are strict liability offenses that do not depend on intent. The Court appeals also affirmed the Troupe County Court's ruling that excluded evidence that Heard County Sheriff's Deputies has planted drugs on Mr. Davis' clients in the past and that Mr. Davis was entitled to a new trial because the LaGrange Court had not warned Mr. Davis of the Dangers of self-representation.
This case is a perfect example of why not to represent yourself. First, Mr. Davis was charged with less safe DUI only, so his alleged blood alcohol content at the time of the accident would be irrelevant. In Evans v. State, the Georgia Court of Appeals held,
In that regard, the inferences addressed in OCGA § 40-6-392(b) apply only where "the amount of alcohol in the person's blood at the time alleged [i]s shown by chemical analysis of the person's blood, urine, breath, or other bodily substance."[9] When chemical analysis of bodily substances is refused, the statutorily permitted inferences that arise from such chemical testing are irrelevant, and there is nothing for the defense to rebut by using the "Widmark formula."
Thus, absent the chemical analysis referenced in OCGA § 40-6-392(b), an expert's testimony about Evans' blood alcohol content based upon the "Widmark formula" is irrelevant, and the only issue is whether Evans' driving ability was impaired by alcohol to the point he was "less safe" to drive. As was held by the Supreme Court of Georgia in Kevinezz v. State,[10] "[u]nder § 40-6-391(a)(2) [DUI—less safe], impaired driving ability is an element of the crime that the state must prove to obtain a conviction."[11] In Kevinezz, the Court determined that DUI—less safe and DUI—excessive blood alcohol content are different methods of proving the offense of "driving under the influence," and indictment on one does not permit conviction on the other, since "such an indictment would not put a defendant on notice that he or she could be convicted under § 40-6-391[(a)(5) DUI—excessive blood alcohol content], which [does] not contain the phrase `under the influence' and [does] not require the state to prove impaired driving ability."[12] And of course impaired driving ability depends solely upon an individual's response to alcohol, regardless of his or her blood alcohol content: "A blood-alcohol level greater than .06 might not render one individual a less safe driver, whereas a blood-alcohol level below .06 might render another individual a less safe driver....
(c) Finally, in his proffered testimony, Dr. Citron stated that the "Widmark formula" has a 20 percent margin of error, thereby failing to establish the level of "verifiable certainty" producing "reliable results" which is required to make such a procedure admissible.[16] This is not a situation wherein a procedure that is otherwise accurate and reliable is subject to human error in its administration or interpretation, which would be the proper subject of cross-examination.[17] Nor is the "Widmark formula's" margin of error sufficiently minimal so as to be considered "some margin of error [which] may give an erroneous result under certain circumstances."[18] Instead, the "Widmark formula," itself, produces inaccurate results to the extent of a 20 percentage point differential, plus or minus. We believe it is appropriate for the trial court to permit expert testimony utilizing the "Widmark formula" only when it is "demonstrated with verifiable certainty that [the Widmark formula is] an accurate and reliable means of ascertaining ... a person[`s blood alcohol content]."[19]
Therefore, not only is the retrograde extrapolation of Mr. Davis' blood alcohol content irrelevant, it is not reached a veriable certainty for purposes of scientific evidence to be admissible in evidence. Further, without retrograde extrapolation, the only test result in evidence would have been an 0.053. In addition, Mr. Davis must have taken a state administered test which was under the legal limit as well to even be entitled to an independant blood tests. Further, the manifestations of impairment used to affirm his appeal could have been the result of the accident wherein he cut a utility pole in half with his truck. An experienced DUI attorney would have immediately spotted these and many other potential issues which would have more than likely resulted in a not guilty verdict or a reduction of charges.
On September 22, 2009, the Georgia Court of Appeals decided Thrasher v. State, a DUI drug case involving methamphetamine impairing driving. The DUI occurred in Chatsworth, Georgia in Murray County. The Georgia Court of Appeals held that the DUI blood test should have been suppressed since the Defendant was arrested at the scene of an accident and read implied consent 57 minutes laters at the county jail. There existed no circumstances justifying the delay.
In Brogdon v. State, A09A1269, the Georgia Court of Appeals affirmed the use of a DUI search warrant to obtain medical records regarding a driver after an accident where an open beer can was found in the car and the driver smelled of alcohol by the Gwinnett County State Court trial judge. The Georgia Court of Appeals rejected the Gwinnett County DUI Lawyer's arguments that the warrant should be suppressed because it violated the "private papers" protections from search warrants contained in O.C.G.A. 17-5-21 and seemingly ignores Sears v. State, 262 Ga. 126 (1993) holding that King v. State, 272 Ga. 788 (2000) implicitly overruled Sears even though the private papers objection was not made in King. The medical records are covered by the Doctor -Patient Privilege and the private papers exception to the warrant statue was designed for just this type of personal paper. Should doctors be required to give DUI Medical Miranda rights? "You have the right to remain silent and refuse treatment. Anything you say or any medical treatment you receive may be used against you in a court of law?" This sounds like a good case for the Georgia Supreme Court to decide.
Ever heard the DUI slogan broadcasts on radio "Over the limit, Under Arrest." Does that mean if you blow under the legal limit you will not be arrested? The legal answer is no, but the public does not know that is not true. The public believes and the government's advertisers keep saying "Over the limit, Under Arrest" on radio and T.V.. Georgia law requires that you have to be under arrest for DUI less safe before you can even blow into the State Administered Breath Test which is usually kept at the county jail. So the marketing slogan should be "Had any ale, going to jail" or "Under the limit, Under arrest."
“Even when an officer properly gives the implied consent notice[Georgia Statutory DUI Breath Test Rights], if the officer gives additional, deceptively misleading information that impairs a defendant’s ability to make an informed decision about whether to submit to [DUI] testing, the defendant’s [DUI breath] test results or evidence of his refusal to submit to [DUI breath] testing must be suppressed.” State v. Chun, 265 Ga. App. 530, 531 (2004), quoting State v. Peirce, 257 Ga. App. 623, 625 (2002). In Chun, the DUI Officer’s statement to the Defendant was that if she “refused the chemical test, her license would be suspended for one year; that if she took the test and registered 0.08 or higher, her license would be suspended; and, even if she took the test and registered lower that 0.08, her license could be suspended if she was convicted of DUI at trial.” The Court of Appeals held that the Officer’s statement was not false or misleading. By contrast, in Peirce, the Officer stated to the Defendant that if he refused to take a breath test his Texas license would be suspended. The Court of Appeals held that the information given to the driver contained substantial misleading, inaccurate information and confused him as to his implied consent rights, and thus the test results were inadmissible because Georgia authorities have no ability to suspend a Texas driver's license.
In State v. Rowell A09A1390 (July 16, 2009), the Officer told the Defendant, “Well, you know if you blow under the legal limit I can let you go home to your son, and everything will be fine.” In Rowell, the Court of Appeals referred to State v. Highsmith, 190 Ga. App. 838 (1989) which held that a suspect may revoke his agreement to take the DUI breath test under the Georgia implied consent warning. Further, the Court of Appeals in Rowell referred to Howell v. State, 266 Ga. App. 480 (2004), which held that the procedure utilized by the officer in attempting to persuade a defendant to rescind his refusal must be fair and reasonable. Applying these precedents, the Court of Appeals in Rowell agreed with the trial court that the procedure utilized by the deputy to persuade the Defendant to rescind her refusal – telling her that she could go home to her son if she blew under the legal limit – was not fair or reasonable since she had legally already been arrested for DUI less safe driving.
In State v. Goode, A09A0362, the Georgia Court of Appeals upheld a Cobb County Trial Judge's grant of a motion to suppress based upon an Officer's lack of probable cause to arrest for DUI. The alleged DUI Driver was first observed by the Officer driving normally but the DUI Police Officer decided to run a check on her tag. The tag came back as suspended. The Officer initated a traffic stop. The DUI Officer smelled a strong odor of alcohol. The alleged DUI Driver admitted to drinking a little more than one glass of wine at her employment as a waitress 20 minutes earlier. Her eyes were glassy and watery but not red and bloodshot. An preliminary breath test for alcohol indicated positive. The alleged DUI Drive passed the walk and turn test and one leg stand. A second alcosensor test indicated positive for alcohol. An HGN test or eye jerking test was performed but excluded as the DUI Officer did not follow his training in the administration of the test. The DUI Officer then arrested the alleged DUI driver for DUI.
The Court of Appeals held that the standard for probable cause to arrest in a DUI is to "have knowledge or reasonably trustworthy information that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders [her] incapable of driving safely." The Court reasoned that if the evidence mere shows that a driver is intoxicated and does not show that the consumption of alcohol has impaired the ability to drive, there is no probable cause to arrest for DUI. Impaired driving ability depends solely upon an individual's response to alcohol. Because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, does not support an inference that the driver was impaired.
To obtain legal advice, please call (770) 961-5511 or email George C. Creal, Jr., P.C. at firm@georgialawyer.com. George C. Creal, Jr., P.C. is a law firm representing those charged with DUI or driving under the influence of alcohol or drugs. We have been representing DUI Defendants for ten years in the City of Atlanta, Acworth, Alpharetta, Athens, Austell, Avondale Estates, Ball Ground, Barnesville, Big Canoe, Calhoun, Canton, Carnesville, Carrollton, Cedartown, Chatsworth, Chattahooche Hills, Clarkston, College Park, Commerce, Conyers, Covington, Dahlonega, Dallas, Decatur, Doraville, Douglasville, Duluth, Dunwoody, East Point, Fairburn, Forest Park, Forsyth, Fort McPherson, Fort Gillem, Gainesville, Grayson, Griffin, Hampton, Hapeville, Helen, Holly Springs, Johns Creek, Jonesboro, Kennesaw, LaGrange, Lake City, Lawrenceville, Locust Grove, Loganville, Lovejoy, Marietta, McDonough, Morrow, Newnan, Norcross, Palmetto, Peachtree City, Powder Springs, Roswell, Sandy Springs, Senoia, Smyrna, Stockbridge, Stone Mountain, Suwanee, Thomaston, Tucker, Union City, Villa Rica, Winder, Woodstock, and Zebulon and their surrounding counties including Fulton, Clayton, DeKalb, Henry, Fayette, Rockdale, Gwinnett, Cherokee, Forsyth, Coweta, Cobb, Douglas and Spalding. We also represent Defendants upon request outside of the Atlanta area throughout the State of Georgia.
Resources 
What does it take for someone under 21 to be arrested for DUI? An odor of alcohol and an admission of drinking is enough regardless of impairment. In 
State v. Smiley, A09A1827 (12/22/2009). Attorney George Creal is first lawyer in Georgia to have the exclusion of Intoxilyzer 5000 DUI breath test results by a trial court affirmed by the Georgia Court of Appeals for failure of the state to produce full information as required by state law including the mysterious Intoxilyzer 5000 computer source code. Although the precedential value of the case is limited to the particular circumstances of this case by the opinion. The opinion does have some value for DUI practitioners. The between the lines ruling is that they affirmed the production of everything from training manuals of the intox operator and area supervisor to quarterly calibration results to maintenance records to the intox 5000 computer source code. What is really interesting is how the Court of Appeals ignored the constitutional arguments that lack of information violates due process and the Defendant's 6th Amendment rights by not allowing cross examination of the self admitting calibration certificates allowed by statute of the DUI breath test, is burden shifting as it requires the Defendant to hire an expert to challenge a test result and denies the defendant right to counsel by preventing a thorough and shifting cross examination of the breath test result. At least the decision is something to counter the decision in STETZ v. THE STATE. A09A1474., Court of Appeals of Georgia, Decided: October 28, 2009 which only allows the breath strip as full information. Under Stetz, the intox 5000 could be a random number generator and no one would ever know
In Brogdon v. State, A09A1269, the Georgia Court of Appeals affirmed the use of a DUI search warrant to obtain medical records regarding a driver after an accident where an open beer can was found in the car and the driver smelled of alcohol by the Gwinnett County State Court trial judge. The Georgia Court of Appeals rejected the Gwinnett County DUI Lawyer's arguments that the warrant should be suppressed because it violated the "private papers" protections from search warrants contained in O.C.G.A. 17-5-21 and seemingly ignores Sears v. State, 262 Ga. 126 (1993) holding that King v. State, 272 Ga. 788 (2000) implicitly overruled Sears even though the private papers objection was not made in King. The medical records are covered by the Doctor -Patient Privilege and the private papers exception to the warrant statue was designed for just this type of personal paper. Should doctors be required to give DUI Medical Miranda rights? "You have the right to remain silent and refuse treatment. Anything you say or any medical treatment you receive may be used against you in a court of law?" This sounds like a good case for the Georgia Supreme Court to decide.