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DUI Myths
Do DUI Standardized Field SobrietyTests Convict the Innocent?
Thursday, 21 May 2009
A Colorado Doctor claims that DUI Standardized Field Sobriety Tests convict 3 out of 4 innocent people.  DUI Standardized Field Sobriety Tests include the Horizontal Gaze Nystagmus, the 9 step Walk and Turn, and the One Leg Stand. The Doctor compares the accuracy of DUI standardized field sobriety test with courthouse security metal detectors.  He argues that they are great at finding guns but also find things like phones and car keys.  The machines can not discriminate between the illegal and legal.  The Doctor surmizes that DUI Standardized Field Sobriety Tests do the same thing.  These DUI Standardized Field Sobriety Tests can not discriminate between the impaired by alcohol and the generally uncoordinated.  He claims that the "validation studies" performed by NHTSA are biased because they do not test a representative sample of the population but only test those driving late at night who smell of alcohol.  The 1998 San Diego validation studies claim 90% accuracy but the Doctor claims the studies own data shows that the test indicate clues of impairment in over 63% of people below the legal limit.  His website is fieldsobrietytest.info.  The raw data is available below just click the underlined more tab.  When reviewing the data notice that the breath test under the legal limit for Georgia DUIs and Metro Atlanta DUIs are bolded.  
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Are Atlanta and Georgia DUI police officers required to read Miranda Rights at a DUI traffic stop?
Friday, 27 February 2009

The answer is yes and no. Georgia DUI arrestees like all criminal suspects possess a right to remain silent and not incriminate themselves. These are most commonly known as Miranda rights, but come from the Fifth Amendment rights of the United State Constitution, rights under the Georgia Constitution, or rights under O.C.G.A. 24-9-20. See O’Donnell v. State, 225 Ga. App. 502 (1997)(Atlanta Fulton County DUI arrest)  Price v. State, 269 Ga. 222 (1998)(DeKalb County DUI).  Based on these rights an Atlanta DUI defendant who is "in custody" can not be compelled to perform field sobriety tests or give statements in response to police questioning.  The Federal Miranda rights only protect testimonial evidence or statements.  However, the Georgia Code extends those protections to things like field sobriety tests.  Although generally, a person stopped for suspected DUI in for example Atlanta, Georgia is not "in custody" certain actions by the Atlanta police or other local Georgia police can turn a investigative detention into a custodial detention which requires the reading of Miranda rights even without a formal arrest and a trip to the Atlanta Detention Center.  

"The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984)." Hughes v. State, 259 Ga. 227, 228, 378 S.E.2d 853 (1989)(Cobb County DUI); see also Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998); State v. O'Donnell, 225 Ga.App. 502, 503(1), 484 S.E.2d 313 (1997).

In Hughes v. State, supra, the arresting officer made an arrest when he told the defendant that he was "not free to leave the scene of the initial stop" so that the field sobriety tests were performed after an arrest without giving a Miranda warning. In State v. O'Donnell, supra, the defendant, after a serious accident, left the scene and was involved in a second accident; the defendant was arrested and brought back to the scene of the first accident before being given the field sobriety tests and without receiving a Miranda warning.

Under both Berkemer v. McCarty, supra, and Hughes v. State, supra, it is the reasonable belief of an ordinary person under such circumstances, and not the subjective "belief" or intent of the officer, that determines whether an arrest has been effected. See Morrissette v. State, 229 Ga.App. 420, 422(1)(a), 494 S.E.2d 8 (1997)(DeKalb County DUI). Thus, when an officer tells a defendant that she is going to the Atlanta jail, whether or not she consents to submit to a field sobriety test, "[u]nder these circumstances we must conclude that, having been informed that she was going to jail, a reasonable person would have believed that the detention was not temporary. Therefore, the failure to give the Miranda warnings renders evidence regarding the field sobriety tests inadmissible." Price v. State, supra at 225(3), 498 S.E.2d 262.

 
Did you know that only 4 traffic offense can occur on private property?
Thursday, 19 June 2008

umtcdGeorgia law, codified at O.C.G.A. § 40-6-3, provides for the applicability of the rules of the road on private property only Driving under the Influence, Hit and Run, Striking an Unattended Vehicle and Striking a Fixed Object upon a Highway can be violated on private property.   We have had Clayton County DUI cases were our client was driving at Southlake Mall without a seat belt.   The loop road around the mall is a private road.  It is not a through way as all access roads dead end into it.  The way you can tell if a roadway is public is if the road sides conform to normal road signs. Public road signs are govern by the Manual on Uniform Traffic Control Devices.  If the signs are shorter than normal or unusually decorative, i.e., carved wood, then its a private road.  Our client's DUI was dismissed because its is not a crime not to wear a seatbelt on private property and it is only a crime on public roadway. The stop was illegal.  No issue is too small to win a Georgia DUI.

 
How do you pass DUI field sobriety tests: Don't Take'em
Tuesday, 03 June 2008
A recent news story from Arizona raises an interesting question.  Heather Squires, 29 year old female, was arrested for DUI.  He blood test result came back at 0.00.  Not just sober, but stone cold sober.   She allegedly participated in voluntary DUI field sobriety evaluations.   One of two conclusions can be reached.  First, the field tests simply don't work.  Or Second, the DUI police officer did not perform the tests correctly.  Either result is hair raising.   This phenomenon is not exclusive to Arizona.  I have had a client that was arrested for DUI by a Forsyth County Sheriff's Deputy after field tests north of Atlanta, Georgia several years ago and the DUI blood tests came back 0.00.  Another client in Clayton County, South of Atlanta, Georgia was arrested for DUI and blew 0.02 on the Intox 5000.  He was over twenty-one and only 25% of the legal limit and arguably saver than a sober driver according to police breath testing training manuals.  Which raises an interesting question, How  do you pass DUI  voluntary field sobriety tests?  Short answer is you don't.   There are no criteria for passing only failing.  The criteria for faling are only 66%, 68% and 77% accurate for the One Leg Stand, Walk and Turn and Horizontal Gaze Nystagmus respectively according to the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Tests Manual.  So unless you know you can pass the DUI field evaluations don't take them.  If you take them make sure you hire a qualified DUI attorney to challenge the these DUI field tests.
 
DUI Field Tests are not to see if your safe to drive home rather are just evidence for trial
Friday, 23 May 2008
If I have a penny for everytime I heard a Metro Atlanta DUI police officer say I smell alcohol would you mind performing voluntary field evaluations to see if you are safe to drive home.   That is just a lie.  If the police smell alcohol, they will more than likely be arresting you.  They are not testing you to see if you are safe to drive, rather they are testing you to make sure they have enough evidence to force you to plead guilty or be convicted during a DUI trial.  Don't be fooled.  Ask to speak to a lawyer.  Ask if you are under arrest.  Ask if you are free to leave.  Ask if they are going to take you to jail even if you do not perform the tests.  Ask questions.  The more questions you ask, the more likely they are to coerce you to take the tests or give you faulty or illegal advice.  Field tests are designed for your to fail.  Never take the eye tests or HGN.  If you feel okay you can take the walk and turn and the one leg stand.  Agree to take the portable hand held breath test if they will show you the result.  If they refuse, you know they are not trying to help you.  You can lose your license if your refuse to take the State Administered breath or blood test at the police station, jail, breath testing RV or hospital but fewer than 5% of clients that I have represented in the last 15 years have actually suffered a one year license suspension.  It is much easier to fight a less safe DUI in Georgia than a per se or alcohol concentration DUI.  
 

No legal advice should be obtained from the web site alone. 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 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/DWIs occuring in the State of Georgia. Individuals with DUI/DWIs from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2006 George C. Creal, Jr. P.C.