Home Resources DUI Myths
DUI Myths
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Thursday, 19 June 2008 |
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Georgia 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.
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Tuesday, 03 June 2008 |
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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.
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Friday, 23 May 2008 |
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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.
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Friday, 31 August 2007 |
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I recently spoke with a gentleman in a Metro Altanta DUI Court who
was woefully misinformed. As he complained that our country was
going to Hades in a Handbasket, he suggested that we replace the
Constitution that has served this Country for over 200 years with his
Common Sense rule. Everybody still gets a trial he told me, due
process you know, but nobody gets there case thrown out because of
Miranda. I thought to ask him if he understood Miranda, but soon
realized that this would be on par with flogging a dead equine.
In reality no one's "case" gets thrown out because they weren't read
Miranda rights. Miranda rights serve to exclude statements made
to police in response to police questioning after arrest for those who
have not been read their Miranda Rights, i.e., you have the right to
remain silent, if you talk or answer questions it will be used against
you at trial, you have a right to an attorney. That's it.
Spontaneous statements are not included in the Miranda Rule. No
one's case gets thrown out because they weren't read Miranda unless
their is no case in the first place. Typically, the police have
to have reasonably competent evidence of a crime or probable cause
before they arrest you anyway. Finally, don't confuse Miranda
rights with DUI rights or Georgia Implied Consent. With the
Georgia DUI Implied Consent rights, Miranda does not apply. You
can not remain silent. You have to answer their questions about
taking the state administered chemical test in Georgia. If you
remain silent, Georgia DUI Appellate Courts deem that a refusal and you
can lose your license for a minimum of one year. There is a DUI
exception to the Constitution in Georgia Courts in almost every
regard.
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Thursday, 17 May 2007 |
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Is the Horizontal Gaze Nystagmus or eye twitching test the most
scientific test? Yes, if done by a medical doctor in a dark room by not
by a Police Officer on a busy freeway. Nystagmus simply means a
jerking of the eye due to disequilibrium. Nystagmus may be caused
by over 43 other factors. In State v. Witte, 251 Kan. 313, 326, 836 P.2d 1110, 1119 (1992), the Court wrote:
Nystagmus can be caused by problems in an individual's inner ear
labyrinth. In fact, irrigating the ears with warm water or cold
water...is a source of error. Physiological problems such as certain
kinds of diseases may also result in gaze nystagmus. Influenza,
streptococcus infections, vertigo, measles, syphilis, arteriosclerosis,
muscular dystrophy, multiple sclerosis, Korsakoff's Syndrome, brain
hemorrhage, epilepsy, and other psychogenic disorders all have been
shown to cause nystagmus. Furthermore, conditions such as hypertension,
motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma,
and changes in atmospheric pressure may result in gaze nystagmus. The
consumption of common substances such as caffeine, nicotine, or aspirin
also lead to nystagmus almost identical to that caused by alcohol
consumption. (Quoting Pangman, Horizontal Gaze Nystagmus: Voodoo
Science, 2 DWI J. 1, 3-4 [1987])
Further, Head Injuries, diseases, strobe lights, and sudden
changes in temperature just to name a few. There are
3 clues which involve a number of passes each. Each pass
requires certain timing elements. For Example, the nystagmus at
maximum deviation the stimulus must be held a maximum deviation for a
minimum of 4 seconds and nystagmus be both present and sustained well
after 4 seconds because even sober people exhibit nystagmus prior to
four seconds at maximum deviation. The final pass must be done so
slowly that it takes 4 seconds to reach 45 degrees which is
usually the shoulder or as far over as the stimulus is from the persons
face (13 inches out then 13 inches over etc). 45 degrees is
supposed to equal 0.08 grams of alcohol in a persons blood so no
nystagmus prior to 45 degrees equals under the limit. However if
the Officer holds the pen 6 inches out from the eye then 45
degrees is only 6 inches over or just past the ear. Can you
see how this test is easy to mess up?
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