What is a DUI?

There are two types of Georgia DUIs .    The most common type of Georgia DUI is a "per se" dui which means that an accused blood or breath alcohol content is greater than the legal limit of 0.08 grams of alcohol 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 other than marijuana is found in your blood or urine.  Under current case law, Marijuana DUIs must be proven by establishing that the driver was a less safe driver because of marijuana use. 

The second type of Georgia DUI is called a "less safe" DUI.   A "less safe" DUI usually is pursued when an accused is arrested for DUI but there is no blood, urine or breath test available either because the test sample was taken illegally and subsequently suppressed by a Court of law or not obtained for some other reason.  A "less safe" DUI means that an accused is less safe driver because they consumed alcohol or drugs prior to or while driving than they would have been had they not consumed alcohol or drugs beyond a reasonable doubt.  A less safe DUI can be proven generally three ways: First, direct evidence of less safe driving like an accident or weaving; Second, circumstantial evidence of less safe driving based on poor performance on field sobriety tests; and, Third, circumstantial evidence of less safe driving based on an accused appearance and demeanor, i.e., if you look drunk you probably are drunk.

Can anything be done if you get a Georgia DUI ?

YES,  First it is important to hire a Georgia DUI lawyer who practices DUI law on a regular basis and is familiar with the subtle and very technical issues implicated by a Georgia DUI arrest.  In our DUI law office, our experience has allowed us to develop interview questions which we ask in every case which identify potential issues which could lead to acquittal or winning your Georgia DUI case.  Second, you must break down your Georgia DUI arrest and examine the issues.  We typically look at the Stop, the Investigation, the Arrest, the Implied Consent or Breath Test rights, the Test or Tests.  Our first goal is to win the DUI.  However, we also feel that it is also good to have a plan B if your a multiple offender or have a recognized drug or alcohol problem.  A valuable part of any DUI defense is a drug and alcohol evaluation, counseling if recommended 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.

Issues with the Stop?

The first issue is was the stop legal under the 4th Amendment.  There are three types of generally recognized police-citizen encounters: first, level one encounter where a police officer does not stop you but merely approaches you without seizing or stopping 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 their hunch may be correct but that is illegal and if proven results in all evidence being thrown out of court 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" that an accused is a less safe driver based on alcohol or drugs consumed prior to or while driving. 

What are field tests?

Police investigate DUIs in two ways by observation and by impairment and divided attention testing commonly known as "Field Tests."   Field Tests are absolutely voluntary. Police Officers will rarely inform Drivers of this fact.  Police frequently attempt to intimidate and coerce Drivers to perform these "Field 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.   The Police might as well throw you in a pond and see if you float.   In many ways the war on drunk driving is a witch hunt.  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.  Police will generally arrest you for simply having alcohol on your breath regardless of what you do. See the Police Officer's Field Evaluation Training Manual

1) The Alcosensor Test

One test that can be useful if your are sober or have consumed very little alcohol or two drinks or less is the field breath test called an alcosensor test  The Alcosensor test is only admissible in Court as positive or negative for 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 will place undeserved weight on the alcosensor result in their arrest despite the inadmissibility of the numeric result.

2)  HGN or Horizontal Gaze Nystagmus

Never take the HGN test.  A HGN test is a which looks for twitching in the eye due to disequilibrium caused by alcohol in the body which can be revealed by the HGN test.   First, the Officer asks if the Accused is wearing contacts.  Second,  he asks the Accused to follow instructions.  The failure to follow instructions is allegedly an indication of alcohol impairment.   The Officer 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 Accused's face at approximately four seconds a pass in order to determine if the Accused eyes follow the stimulus smoothly and each eye tracks the stimulus equally which can be a symptom of a traumatic brain injury or brain disorder.  The Officer then passes the stimulus in front of the Accused face at two second passes 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 elapses.   The Officer looks for a total of six clues or three clues in each eye as follows: does the eye pursue smoothly, twitching prior to the onset of forty five degrees, and 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 that they learned in training is that the HGN  does 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.

3) 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 beer 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 for the accused.  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 he 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 at 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.

4) The Walk and Turn

The Nine Step Walk and Turn is second dreaded divided attention tests.   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 side.  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 to 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, 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.  However, the State has categorized them into eight general categories.

5) The Alphabet Test

The Alphabet Test is not a validated 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 will 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.

6) The Finger to Nose Test

The Finger to Nose test is another common sense performance test.  It means simply nothing.  It is easy to err. Always politely refused the finger to nose test.

7) 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 testing

What are the punishments for a Georgia DUI ?

A Georgia DUI offense is a misdemeanor which means that 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.  There are statutorily required minimum punishments based upon an accused DUI history.  For a first DUI in five 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 second DUI in five years, State law requires a minimum of 72 hours in jail, 240 hours community service, 17 week DUI school, ,drug and alcohol evaluation, license plate confiscation, picture in the newspaper, and a 3 year license suspension (one year with no license, after one year an accused can drive with a breath device installed on their vehicle for six months, and 18 months with a probationary license.   On a third DUI in five years, if you have to ask you probably can't afford to get one.   The short answer is the statutory minimums are rarely an issue.  Most accused with convicted of a third in five get six months or more in jail.

What is the Ten Day Warning?

Georgia 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 in thirty days.  If a letter is not sent to the Department of Motor Vehicle Safety 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 received DUIs even in their personal non-commercial vehicle lose their Commercial Driving Privileges for one year.  Second time DUI offenders are disqualified from driving for life.

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