On July 1st, 2008, Georgia DUI laws will get tougher.  The new Georgia DUI law is designed to teach new DUI offenders an additional lesson and increase jail time and consequences for multiple offenders.   The Georgia General Assembly passed House Bill 336 with very little opposition in 2008 legislative session.  Beginning  on July 1st, 2008,  people who plea to or are convicted of driving DUI will be subject to more jail time, a felony record in some cases, and additional DUI classes.  A fourth DUI in Georgia in ten years will be felony if you are arrested after July 1st 2008.   It doesn't matter where the other DUIs occurred as long as the Fourth one is a Georgia DUI.   Your first two DUI convictions or pleas are regular misdemeanors subject to a year in jail or a $1000 fine.  A third Georgia DUI is a high and aggravated misdemeanors which increases the maximum punishment up to $5,000 and a year in jail generally with limited good time credit  for time served, meaning you are likely to serve day for day.  A new  felony DUI conviction will result in a prison sentence of one to five years but can be probated or suspended by the Judge except for 90 days which is mandatory.   Additionally, the measurement for minimum punishments for 1st, 2nd, and 3rd DUIs will increase from 5 years to 10 years.  This means that if you had a DUI  6 years ago and get a second DUI you will be subject to minimum punishments of 72 hours in jail as opposed to 24 hours and the additional requirements of a 2nd in Five DUI like 30 days community service et cetera. 

The new law will make changes in sentencing for first Georgia DUI offenders.  There will be another requirement after a Georgia DUI Defendant completes the Georgia DUI School which is a 20 hour $280 course.  For a first Georgia DUI conviction, in addition to DUI School, fines of $300, and 40 hours of community service offenders will have to take a clinical evaluation and complete a treatment program.

The e-mail, dated Sept. 27, 2006, indicates that the Intoxilyzer "on occasion" printed out different blood-alcohol readings than what it displayed on its screen.  The email also revealed that the amount of air required to provide a breath sample varied depending upon the version of software running the machine and could trigger a false insufficient sample reading which could result in a one year driver's license suspension for refusal to take the test in Georgia.   These CMI, Inc.  Intoxilyzer 5000 are the "state administered" test in Georgia DUI arrests.   

CMI updated the Minnesota version of its Intoxilyzer software in summer 2005. It was first awarded the contract in 1997.

"We performed a variety of tests under different conditions using each version and the results were not the same," wrote toxicologist Pat Pulju in the e-mail to other state and CMI officials.

At a hearing before the State of Connecticut Department of Motor Vehicles in February of this year, Dr. Michael Hlastala, of the University of Washington, a forensic consulting in human physiology and DUI breath testing and the nature of alcohol in the body, testified that a woman who ingests the exact same amount of alcohol as a man will produce a DUI breath result that exceeds the man's by 5.6 percent.

Dr. Hlastala also testified at the DUI trial that the lung capacity of an African-American male is approximately 3 percent smaller than a Caucasian. "Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3 percent," Hlastala concluded.

With Atlanta DUI prosecutors aggressively trying DUI's at the 0.08 level and given the inherent variability of deep lung air in successive breath samples of +/- 0.02 as discussed in the Georgia DUI Intox 5000 training manual (2004 Edition) and as evidence by the Georgia statutory over 0.02 sample variance exclusion rule, this could result in margins of error for blacks and women in the 28%-31% range.

Read excerpts from Connecticut Brief by clicking more.

University of Georgia Bulldog Clint Boling was arrested for DUI less safe last week after being pulled over for driving erratically on GA. 120 at 1:30 A.M. on May 14, 2008 as reported by the Atlanta Journal Constitution.  UGA Athletics policy requires that a player who is involved in an alcohol related arrest miss 10% of the season.  The arrest will also trigger a review by the UGA's Office of Judicial Programs.  If found guilty of violating the student code, he would be on probation at the university for one year.  Boling told police was not drinking and refused a breath test.  

At 19 years of age, a driver arrested for Georgia DUI will lose his license for a year to six months whether he takes a state administered test or not, so there is no real incentive to blow.  Then DUI legal limit for Georgia drivers under 21 is 0.02 which is not impaired, less safe or drunk by any reasonable standard and represents a zero tolerance standard.  However, without a test the State must still prove beyond a reasonable doubt that a driver is less safe which is difficult unless the driver's alcohol concentration is generally well over 0.12 (the legal limit back in 1980's when cooler heads prevailed).  Less safe is generally evidence by unexplained weaving or an accident, poor performance on field dexterity evaluations, and/or by appearance and demeanor clearly suggestive of impairment.  Metro Atlanta DUI and Alpharetta DUI college students be forewarned!

The St. Petersburg Times recently reported about Michael Loui's DUI arrest.  The alleged DUI Driver's eyes were bloodshot.  He claimed he suffered from allergies.  The Officer, a DUI specialist, noted that the Driver's speech was slurred and he was unsteady on his feet.   The Driver called his doctor who told the Officer that the Driver suffered from Muscular Distrophy.   The Officer did not smell alcohol but was sure that the Driver was using or abusing prescription drugs.  He asked the Driver about his medical history.  The Driver indicated that he had a prescription for Vicodin but had not taken any in a few days.  Bingo, the DUI expert would not be fooled.  The Disabled DUI driver was arrested, booked and jailed.  Justice was served or was it injustice? 

What makes this case illuminating is that Michael Loui, who actually does suffer from Muscular Distrophy and was prescribed Vicodin to ease his pain, was not DUI but simply disabled at least according to a state administered urine test.   Officer Michael Jockers, the 17 year veteran DUI Officer, is still incredulous.   He claims that his standardized field sobriety tests  and DUI training don't lie besides he once knew a Cub Scout with Muscular Distrophy.   The DUI officer insists that the Urine test is flawed and must have missed some prescription drug.  

The lesson here is that Georgia DUI and Metro Atlanta DUI police officers believe that anyone that can not perfectly follow their instructions without being told that they are being so judged, are not perfectly healthy and fit, and do not have the dexterity of a tightrope walker (without a pole) or at least a competition gymnist are under the influence to the extent they are less safe of alcohol or when they can't smell alcohol illegal and/or prescription drugs.  Prosecutors routinely charge DUI defendants with DUI drugs when there is absolutely no evidence of drug use or abuse just in case something pops up at trial.   Further, Police Officers are trained to rely on these imprecise DUI field sobriety evaluations to the point of ignoring the obvious and disregarding common sense and logic. 

The Source Code sunami continues.  A Tucson Arizona Judge added himself to the ranks of the righteous by ruling that source code secrecy is both unfair and un-American.  The Judge's ruling affects over 49 DUI cases and adds more speculation to the ranks of those who wonder what CMI, Inc. and the Intoxilyzer has to hide.  The ruling was reported by Azcentral.com.  

Georgia DUI Courts have not ruled that Intoxilyzer source code is available or not under the DUI Full information provisions of O.C.G.A. 40-6-392(a)(4)(which provides, "Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.").   However, in Hill v. State, A08A0726,May 15, 2008,  the Georgia Court of Appeals held that the DUI source code was not available under O.C.G.A.  17-16-23, the Georgia General Criminal Discovery statute as a scientific report under the guise that the State does not possess the  DUI source code.  ( Query: if  you possess the DUI breath machine, how can you not possess the DUI source code? its in the DUI breath machine?  It might not be typed out on a sheet of white paper in your in box, but you possess it?). 

The only rational conclusion coming out of Hill v. State is that  either the HIll DUI Attorney did not argue DUI Full Information or the Georgia Court of Appeals is playing legal twister to avoid directly addressing the implications of "Full Information" under O.C.G.A. 40-6-392(a)(4).