During a DUI investigation, police must arrest you prior to reading the breath test rights or implied consent rights.  If they do not, the breath test can be suppressed.  As consent is not implied until after arrest, officers can not arrest you for “suspicion” of DUI in Georgia and then take you to the station to see how you do on the sit down “intoxilyzer 5000″ breath test or the state administered chemical test.  The field breath test is not admissible as to a result, only positive or negative.  So comments like "if you pass the state test, I let you go" or "if you blow under 0.08, I won’t charge you with DUI" or "if you blow under 0.08 you are good to go" equal a breath test excluded from evidence.  See, Cooper v. State, 277 Ga. 282 (2003)(holding that chemical testing of a Defendant’s blood in the absence of probable cause violates the Fourth Amendment prohibition against unreasonable searches and seizures and holding that implied consent without probable cause is illegal); Buchanon v. State, 264 Ga. App. 148 (2003)(holding that consent is only implied if a person is arrested for a violation of O.C.G.A. § 40-6-391 and implied consent prior to arrest or without probable cause is improper) Handschuh v. State, 270 Ga. App. 676, 607 S.E.2d 899(Dec 01, 2004)(holding that the statute, as it now stands, provides that consent is implied only if a person is arrested for a violation of OCGA § 40-6-391, while probable cause of DUI may provide the impetus to give the implied consent warning, under OCGA § 40-5-55(a) the implied consent test is only upheld where an arrest has actually been effectuated.) Affirmed by Hough v. State, 279 Ga. 711; 620 S.E.2d 380 (2005)(Holding where accident resulted in serious injuries and officer had probable cause to believe that defendant was driving under influence, officer did not need to arrest defendant before reading of implied consent rights. However, where accident did not involve serious injuries, suspect needed to be under arrest before implied consent rights were read). 

We have won several DUIs using this defense.   For more information on Atlanta DUI defense click here

A St. Petersburg Florida police officer was arrested for DUI Sunday morning February 18, 2007while off duty

Officer Steven J. Pugh was arrested around 2 a.m. Saturday.  He was found sleeping behind the wheel of his parked personal car around the 5400 bolck of Shore Blvd. in Gulfport, Florida.  Pugh contends that he had been drinking at a party when he went to his truck, turned on the engine and the heater and went to sleep.

DUI in Georgia can be charged as Driving or being in actual physical control of a moving  vehicle.  Lack of Driving or Failure to Move is a great defense.  Police often assume vehicle occupants drove while impaired to whereever they are parked.  Unless the vehicle is on the side of a long strecht of abandoned road or in a Krystal (White Castle for you westerners) drive thru, there is not a very good inference of driving.  Additionally, the driver is doing the right thing by parking and sleeping it off.  I have won many jury trials using this defense.  They always provide lots of reasonable doubt.  For more information on a Georgia DUI defense by a qualifed DUI Lawyer click here.

The Sarasota Herald Tribune reported recently that a Florida Sheriff’s Deputy is under investigation after utilizing a suprise handcuffing technique. After an arrestee was told by the Officer to perform a fake sobriety evaluation as a ruse to handcuff the suspect, the Officer slammed the arrestee into the car.  While trying to get handcuffs on the Defendant, the Defendant turned around and retaliated. Police commentators have called this unreasonable policing. One such fake field evaluation is the lean forward over the hood of my car as far as you can then BAM!, slammed into the hood and cuffs go on. Another similar fake test is read the word between the flashing lights on my light bar. Americans deserve honesty and open communication in a democratic society and not police trickery.  For more information on Atlanta DUI lawyers click here.

CBS Investigative Reporters in Denver recently reported that Denver Police turned off video cameras recording DUI breath testing.  After recently suffering acquitals of DUI arrests where the defendant was not observed for 20 minutes prior to the breath test to exclude the possibility of mouth alcohol, the cameras were coincidently turned off.  Police don’t want cameras if they are showing juries that Defendants are not guilty.  In Atlanta, the some DUI Task force officers have stopped using video after regularly videoing arrest for the last five years.  No explanation is given for why not.  Atlanta Police also have new digital recorders that can not be played in court but only in police cars.  Other police agencies resist cameras for their police cruisers knowing that convictions can be harder when the arrest is on tape.  In this day and age, Americans deserve to have those vested with the public trust recording arrests.  The bottom line is it convicts the guilty and frees the innocent.  Legislators should step forward and mandate video recordings for police cruisers and DUI breath test machines. For more information on Atlanta DUI lawyers click here.

In January 2007, a Wisconsin DUI lawyer, Rick Petri, 64, got a call from a client that he was arrested for DUI.  He went to the station to bail him out and blew a 0.09.   The lawyer who had consumed alcoholic beverages earlier in the evening felt fine and thought the alcohol had worn off.   Breath alcohol is not blood alcohol.  Age, weight, lung capacity, sex, hemocrit, lung to blood ratios, body temperature all can affect breath alcohol levels.  Thus, noone really knows what their true blood alcohol is especially after a breath alcohol test.  I have a portable breath tester.   On a recent evening, I tested my breath after each of four beers consumed over a 4 hour period while watching a pro hockey game.  I never felt impaired.   After the first beer, I blew a 0.05.  After the second beer, I blew a 0.077.  After the third beer, I blew a 0.117.  After the fourth beer, I blew a .099.  The beers were consumed on a beer an hour interval and I consumed a small pizza during the second hour.  My friend blew a 0.002 after two beers in four hours (yes that is two zeros or a two thousandth of g/210l).  Needless to say he drove! What is the difference? Who knows the tests are just as arbitrary as the 0.08 limit itself.  I guess I am guilty of being a lightweight.  For more information on Georgia DUI lawyers click here.

From a good time to a crime
RICK KUPCHELLA, Special to the Times
Published December 31, 2006

Once upon a time, people laughed when you joked that you were too drunk to walk, so you had to drive. But then, once upon a time the Marlboro Man was the ultimate sign of virility. The Marlboro Man died of cancer. And drunken drivers long ago ceased to be funny. Indeed, social attitudes toward drunken driving are about where attitudes toward smoking were 20 years ago - hardening fast. Think of that next time you’re in a smoke-free bar.

And think of that tonight if you are one of the thousands raising a toast to the New Year in Tampa Bay.

For more information on DUI lawyers in Georgia click here.

Still Drunk The Morning After?
Nov 16, 2006 12:10 AM

Are you still drunk the morning after a binge? We wondered how many people hit the road in the morning without even realizing they are still legally drunk.

We asked four volunteers to conduct an experiment. They drank for four hours, took a drunk test, slept for eight hours, and took another drunk test. The results may surprise you.

For more information on Atlanta DUI lawyers click here.

Lawsuit claims drug killed DUI probationer
By Kim Smith
ARIZONA DAILY STAR

The family of a Tucson man who died while on probation has sued the state and the Pima County probation department, saying a court-ordered drug killed him.

According to court documents, Scott Paul Cody, 34, was placed on probation in May 2005 for driving under the influence of alcohol and drugs and attempting to flee from a law-enforcement officer.

The lawsuit says as part of his probation, Cody was ordered to go to Patrick J. Marsh so the doctor of osteopathic medicine could determine if Cody could take Antabuse, a drug that makes people who drink alcohol ill.