George C. Creal Jr., P.C.,
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What Exactly is a DUI? Why are There Separate Charges on My Ticket?

DUI stands for driving under the influence, and in Georgia there are six different kinds of DUI. Three involve driving under the influence of drugs, one involves inhalants, and the last two, which are the most common types of DUI we encounter in Georgia, are alcohol related. There are two types of alcohol related DUI charges: "per se" and "less safe." A "per se" DUI is when the blood alcohol level of the accused is greater than the legal limit of 0.08 grams, or greater within three hours of driving or being in actual physical control of a moving vehicle from alcohol consumed prior to or while driving.  A Georgia DUI can also be "per se" if an illegal drug like cocaine, but not marijuana, is found in the blood or urine of the accused. Under current law, a Georgia Marijuana DUI can only be prosecuted if the State can prove that the driver was a less safe driver or incapable of driving safely because of marijuana use.

The other type of Georgia DUI is known as a "less safe" DUI. A "less safe" DUI is when a driver is arrested for DUI but no breath or blood result is available. "Less safe" means that the driver is less safe to drive as a result of consuming alcohol or drugs before or while driving in comparison to not having ingested any drugs or alcohol. A less safe DUI can be proven in three ways: direct evidence of erratic driving, like an accident or weaving, circumstantial evidence of less safe driving inferred from standardized field sobriety tests, and circumstantial evidence of a driver's appearance and/or demeanor, i.e., odor of alcohol, unsteadiness, staggering, stumbling or slurred speech.

What Can Be Done if I Get a Georgia DUI?

First, it is important to hire an experienced Georgia DUI lawyer who regularly practices DUI law, has recently tried a DUI jury trial, and is knowledgeable of the numerous technical issues involved in a Georgia DUI arrest. We've accrued an incredible amount of experience from the sheer volume of DUI cases we've taken. We're true blue Georgia DUI specialists. Our experience has allowed us to tailor our client interview process so that we're able to identify any and every potential issue which could lead to a not guilty verdict or a serious reduction in charges. Second, break down your DUI arrest and examine the issues. We typically examine the Stop, the Investigation, the Arrest, the Breath Test rights, and the State-administered Chemical Test or Tests - blood, breath, or urine. Our number one priority is to beat your DUI.  However, we also feel that it is also good to have a back up plan, especially if you have previous DUI arrests or convictions. A valuable part of any DUI defense is a drug and alcohol evaluation and, if recommended, counseling and Alcoholics Anonymous. A good DUI defense also requires the support of friends and family. A Court is always more likely to have mercy on a Defendant convicted or who pleads guilty to DUI when the Courtroom is full of friends and family rather than one who comes to court alone.

Were There Issues With the Stop?

The first issue is if the stop legal under the 4th Amendment of the Constitution. There are three types of generally recognized police-citizen encounters. A level one encounter is when a police officer does not stop you but merely approaches you in a public place in order to say hello or ask how you are doing. Georgia Courts have ruled that Police do not have to have a reason to approach a person in a public place. The second type of police-citizen encounter is a investigatory detention or traffic stop. A traffic stop must be based upon "articulable suspicion" which means that the police must be able to give a reason for the stop and the stop must not be based on a guess or hunch. Many times the police will stop citizens on a hunch or guess, and although their hunch may be correct, it is illegal, and if proven so, any evidence gathered from such a stop will be thrown out or suppressed. The third type of police-citizen encounter is an arrest which must be based on "Probable Cause." DUI cases can be thrown out of Court if an arrest was not based on "Probable Cause," i.e., that the accused is a less safe driver based on alcohol or drugs consumed prior to or while driving.

What are Field Sobriety Tests?

Police investigate DUI in two ways: by observation of impairment and divided attention and testing commonly known as "Field Tests." Field Sobriety Tests are absolutely voluntary, though Police Officers will rarely inform drivers of this fact. Police frequently attempt to intimidate and coerce drivers to perform these Sobriety Tests which, according to the law enforcement's own training manual, only work 77% of the time. That means that one out of four sober people fail these drunk tests. Recent studies published in the Wall Street Journal in February 2005 equated 0.08 grams of alcohol impairment with talking on a cell phone with an ear bud, or simply being 70 years old. These tests are designed to make you look silly. Generally, there is no benefit from performing these field tests. Most police will arrest you for simply having alcohol on your breath regardless of what you do or how you perform.

The Alcosensor Test

One test that can be useful if your are sober, have consumed very little alcohol, or two drinks or less is the handheld breath test called an Alcosensor test. The Alcosensor test is only admissible in Court as positive or negative for the presence of alcohol and not admissible as a numerical result. The Alcosensor is highly inaccurate and has no ability to filter or distinguish between breath alcohol and substances which mimic alcohol in infrared light. However, many police officers place undeserved weight on the Alcosensor result despite the inadmissibility of the numeric reading.

HGN or Horizontal Gaze Nystagmus


Never take the HGN test. The HGN test is a test which looks for twitching in the eye due to disequilibrium caused by alcohol in the body. First, the Officer asks if the accused is wearing contacts, then he asks the accused to follow instructions. The failure to follow instructions is allegedly an indication of alcohol impairment. The officer then asks that the accused follow a stimulus like a pen or finger. The officer then passes his finger side to side approximately 15 inches from the face of the accused at four seconds a pass in order to determine if the eyes of the accused follow the stimulus smoothly and if each eye tracks the stimulus equally. The officer then passes the stimulus in front of the face of the accused at two second intervals in order to look for twitching prior to the eye reaching a forty five degree angle from the nose. Finally, the officer holds the pass at maximum deviation and looks for twitching before 4 seconds elapse. The officer looks for a total of six clues or three clues in each eye as follows: does the eye pursue smoothly, is there twitching prior to the onset of forty five degrees, and is there twitching at maximum deviation. Two out of six clues is supposed to mean a blood alcohol level under 0.08. Four out of six clues is supposed to mean a blood alcohol level of 0.08. Six out of six clues is supposed to mean an alcohol concentration of 0.10 or more. What the police don't tell you is that they learned in training that the HGN does not always work. First, everyone has a natural nystagmus or twitching in the eye. Second, strobe lights or flashing lights can cause the eye to twitch. Sudden changes in heat and cold can cause the eye to twitch among other things. The bottom line is that HGN may work well in the dark office of an ophthalmologist or optometrist but not on the side of the Interstate.

The One-Leg Stand


The One-Leg Stand is one of the dreaded divided attention tests. Supposedly, highly trained scientists have determined that driving is a divided attention task. This simply means that driving requires you to do two things at once. It is a wonder that they don't make you play Simon says when you take your driving test, because they do if you get pulled over with alcohol on your breath. In the One-Leg Stand the officer first asks that you observe him and follow his instructions. The officer then asks if the accused has any injuries or physical impairments that would prevent them from standing on one leg. The officer then tells the accused to stand with his feet together and his hands at his side. The officer then demonstrates the One-Leg Stand. First, he stands, feet together and hands at his side. He then raises one of his feet approximately six inches off the ground with his knee straight, points his toe, looks at his toe, and then counts to thirty by one thousands or one-one thousand, two-one thousand, three-one thousand and so on. If you haven't already fallen down by this humiliation, then he tells you to start. If you lose your balance during the instructions that is a clue. If you start during the instructions that is a clue. If you sway, that is a clue. If you put your foot down, that is a clue. If you raise your hands more than six inches from your side, that is a clue. If you hop, that is a clue. Supposedly, the more clues, the drunker you are.

The Walk and Turn


The Nine Step Walk and Turn is another dreaded divided attention test. In the Nine-Step Walk and Turn, the accused is asked to follow instructions and perform tests to measure physical dexterity. First, the accused is told to assume a position with his left foot in front of his right foot with his hands at his sides. The officer then demonstrates the walk and turn exercise. The accused is supposed to be informed that he is not to begin the exercise until told to do so. The accused is then told to take nine heel to toe steps while counting out loud on an imaginary line. The ground is supposed to be level and free of debris. After demonstrating the exercise, the officer then tells the accused to begin. There are allegedly several clues that imply intoxication: starting to soon, losing balance during the instructional phase, failure to keep hands at side, stepping off the line, not counting out loud, not touching heel to toe on each step, and not performing a turn using shuffle steps and pivoting on the right foot as instructed. There are some sixty four possible clues on a walk and turn test.

The Alphabet Test


The Alphabet Test is not a valid field sobriety tests. It is merely a common sense performance test. Most people know their ABCs, but many can not say their ABCs without singing them and have not recited them since the 2nd or 3rd grade in elementary school. Some officers will ask you to recite the alphabet starting at a letter other than A and ending with a letter other than Z. Some officers will ask you to say your ABCs backwards. If you refuse they may ridicule you and call you stupid, but unless you have recited your alphabet lately I do not recommend it as it is easy to err. Always politely refuse the alphabet test.

The Finger to Nose Test


The Finger to Nose test is another common sense performance test. It means nothing and it's easy to perform poorly. Always politely refused the Finger to Nose test.

Miscellaneous Field Tests


Some officers will ask the accused to count with their fingers and do various other strange maneuvers. These are designed to make an accused fail. Always politely refuse this sort of testing.

What Are the Punishments for a Georgia DUI?

A Georgia DUI offense is a misdemeanor which, by default, means it could result in one year in jail and a fine of up to $1000.00. If the DUI is designated as a high and aggravating misdemeanor then the fine could reach $5000.00. These are the upper limits, but there are statutorily required minimum punishments based upon an accused DUI history. For a first DUI in ten years, State law requires a minimum of 24 hours in Jail, 40 hours of community service, twelve months of reporting probation, and one year license suspension (a work permit is available for those who do not refuse a test and a probationary license is available for non-refusal DUIs after 120 days for those who go to DUI School and pay a $210.00 reinstatement fee). For a second DUI in ten years, State law requires a minimum of 72 hours in jail, 240 hours community service, 17 week DUI school, a drug and alcohol evaluation, license plate confiscation,your picture in the newspaper, and a 3 year license suspension (one year with no license, after which an accused can drive with a breath device installed on their vehicle for six months, and 18 months with a probationary license). For a third DUI in ten years, the short answer is the statutory minimums are rarely an issue. Most people convicted of a third DUI in five or ten years get six months or more in jail. 

Georgia DUI Detection and Field Testing Manual Georgia DUI Detection and Field Testing Manual (4531 KB)

 

What is the Ten Day Warning?

Georgia DUI law requires law enforcement to issue a form DPS-1205 to those who refuse chemical testing or whose blood or breath alcohol is in excess of 0.08 within three hours of driving, which is both a thirty day limited driving permit and notice of intent to suspend their license in thirty days. If a letter requesting an Administrative License Suspension hearing is not sent to the Georgia Department of Driver Services with a $150.00 check within 10 business days of arrest, a driver can lose his license thirty days after arrest even in the absence of a conviction.

What is the Commercial Driver's License Warning?

Federal regulations enacted into law in Georgia in October of 2004 require that individuals who receive a DUI, even if it's in their personal non-commercial vehicle, will lose their Commercial Driving Privileges for one year. Second time DUI offenders are disqualified from driving a commercial vehicle for life. 



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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.
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George C. Creal Jr., P.C., Top Atlanta DUI Law Firm

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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