Defense of Your Georgia DUI Case: What to Know, What to Do.

Transcription

1 Defense of Your Georgia DUI Case: What to Know, What to Do. A Legal Guide By Douglas B. Chanco, Esq. 1

2 Defense of Your Georgia DUI Case: What to Know, What to Do By Douglas B. Chanco, Esq. 2012, LuLu Publishing ALL RIGHTS RESERVED. This book contains material protected under International and Federal Copyright Laws and Treaties. Any unauthorized reprint or use of this material is prohibited. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system without express written permission from the author / publisher

3 Introduction Dui Penalties Addition Hidden Penalties Total Cost of a first, lifetime DUI DUI s Impact on Teachers I ve Been Arrested, Now What Do I Do Should I Just Plead Guilty I Want to Defend My Case Body Absorption of Alcohol Reasonable Articulate Suspicion and Probable Cause DUI Stops, Not Just A Ticket Roadside Field Sobriety Testing Horizontal Gaze Nystagmus Walk-and-Turn and One-Leg-Stand evaluations Roadside Portable Breath Test Intoxilyzer 5000 Breath Test Your Right to an Independent Testing of Your Bodily Substance Administrative License Suspension Two DUI tickets out of one DUI arrest and charge DUI and its impact on a Commercial Drivers License Out of State Drivers Charged with DUI in Georgia DUI and Diabetes Females charged with DUI DUI cases involving Roadblocks DUI and Accidents DUI Drugs Blood Tests Prescription Drugs and DUI DUI Drugs and its impact on professionals DUI Marijuana Under 21 and Charged with DUI What Drivers Should Say and Do When Stopped by the Police When Is It Safe To Drive After Drinking Alcohol What To Ask Your DUI Lawyer How To Choose Your DUI Lawyer Top Mistakes You Can Make In Your DUI Case 3

4 WHY I WROTE THIS BOOK I represent people who are charged with driving under the influence of alcohol. These are typically hard working people who have never been in trouble or charged with a crime prior to being arrested for DUI. They have jobs, families, and lives that a criminal conviction will disrupt. They need help as well as relief from the stress of having a criminal charge pending against them. This book is designed to help people learn what they need to know-- and what they can do-- to defend their Georgia DUI case. I receive numerous calls from people who have tried to avoid hiring a lawyer, or who just do not know where to turn. This book and my website ( are designed to help you. Ultimately it is important to hire an experienced attorney who practices DUI defense law because. you want a lawyer who knows the science behind the evidence in DUI cases. I limit my legal practice to criminal defense, and the vast majority of that is DUI defense work. After practicing as both a prosecutor and a defense lawyer, and answering the same questions, I decided to write this book that explains the ins and outs of a DUI charge and how to defend against it in Georgia. I would encourage you to contact a lawyer in your state. 4

5 DISCLAIMER The State Bar Association of Georgia requires that I inform you that this book is not legal advice. I am not your lawyer. I cannot become your lawyer unless and until we sign a contract in which you retain my services and provide payment. While the information in this book can detail your rights and offer suggestions, it does not provide specific advice about your individual case. If you need legal advice, please contact an attorney to discuss your specific case. 5

6 INTRODUCTION This book is not a substitution for legal counsel. As I say frequently in this book, every case is unique and the facts and circumstances of your individual case are different from anyone else s. For advice about your case, I always encourage you to contact an attorney who specializes in DUI defense. This book is merely a guide; a guide to the defense of a general DUI charge. It covers the most common ways I have found that my clients were able to present a defense. With that being said, the most common scenario for a DUI arrest comes out of this example: You only had a few drinks. It was over several hours time. You ate and even waited after finishing your last drink until you knew you were all right to drive. It was late, you were tired, and then all of the sudden you saw the blue lights in your rear view mirror. The next thing you knew, you were being asked to exit your vehicle, subjected to questions and DUI tests on the side of the road, taken to jail, and charged with a crime. You know you weren t drunk, yet you were still arrested. It makes you mad, it makes you scared, and it makes you uncertain of what to do next. This humiliating experience may likely be the first time you have ever encountered a police officer, and most likely the first time you were accused of committing a crime. However, all over America, this scenario happens 6

7 again and again to good people. The sheer magnitude of this matter makes people to want to forget about it, and hope it goes away quietly. This unwillingness to address the problem is the wrong approach to successfully defending your case. You need to be proactive, work quickly, and never forget that time is essential! You need help to get good results. It is important to understand that a DUI conviction stays on your record for life and, as the law stands now, it cannot be expunged. It will not fall off after any period of time, and it can cost you over $10,000 in court fines, surcharges, probation supervision fees, lost wages, insurance surcharges, license reinstatement fees, as well as alcohol classes and counseling sessions. Ultimately, the two best ways to avoid being arrested for DUI are to either take a taxi or use a designated driver when you go out and drink. However, this book details the defenses in a situation where you were the driver. Contacting an attorney immediately after your arrest is an important first step in preparing your defense. By reading this book, you will be better educated as to what you are up against. This book will teach you what questions to ask a DUI lawyer, allow you to understand how to defend your case, and teach you what to do when you are pulled over. 7

8 I tell every person who walks into my office to never forget that an arrest does not mean that you will be convicted for DUI. It is up to you to take the necessary steps to ensure that your case does not result in a conviction of guilt! Douglas B. Chanco 8

9 GEORGIA DUI PENALTIES Georgia DUI charges carry serious penalties. Even first time DUI offenders can expect to face jail time, fines, and license suspensions if the State of Georgia is successful in their prosecution. In this chapter, I will explain the various Georgia DUI laws and penalties. Types of Georgia DUI Charges There are two types of DUI charges in Georgia. The first is called a less safe DUI violation and is related to the manner of impaired driving. The second is called a per se violation and is related to the blood alcohol level of the driver. Georgia Less Safe DUI Charges In Georgia, a Less Safe DUI Charge relates to the driver s alleged inability to safely operate a vehicle due to intoxication. This type of case hinges on proving that the driver was under the influence of alcohol, drugs, chemicals or prescription drugs to the extent that he/she was less safe to drive than the driver would have been had he /she not consumed the substance. In this type of case, the State of Georgia will normally present the arresting officer s observations as to how the driver was driving, how the 9

10 driver performed on the Standardized Field Sobriety Tests (roadside DUI tests), and any physical symptoms that may prove that the driver was unfit to drive. These cases normally do not include any type of chemical test results as to a specific blood alcohol level. Therefore, the Prosecutor will ask the officer if he /she has an opinion as to whether or not the arrested driver was in fact a less safe driver. The officer will rely upon what the driver did and said, as well as how the driver looked and moved. As these cases include abstract, undefined terms, an attorney trained in standardized field sobriety as well as the police officer course on DUI Detection and Deterrence, can greatly assist you in defending this type of case. For example, attorney Douglas B. Chanco received training from the National Highway Traffic Safety Association in reference to DUI Detection and Deterrence and was certified as an instructor for Standardized Field Sobriety Testing Administration. Georgia Per Se DUI Charge In a Georgia Per Se DUI Charge, the violation is in relation to having a blood alcohol level exceeding the legal limit. In this type of case, the State of Georgia relies heavily on the results of the chemical tests of the driver s blood, breath, urine, or other bodily substance. In a breath test case, Georgia 10

11 uses the Intoxilyzer 5000 to measure the results of a driver s breath sample. In order for the Prosecutor to prevail in a Per Se case, he or she must successfully show that the reading was accurate. WHAT IS THE LEGAL LIMIT FOR A GEORGIA DUI? There are three different DUI per se levels: Drivers over Drivers under Driving a Commercial Vehicle.04 Drivers with chemical tests showing a Blood Alcohol Content (or BAC) level exceeding the levels stated above can be charged with a per se DUI. GEORGIA DUI LEGAL PENALTIES Below are outlined the various penalties you can expect to face if you are found guilty for a Georgia DUI. Please remember these are the minimum penalties and, depending on the circumstances, penalties in your case may be more severe. 11

12 1st DUI Offense Jail Sentence Days to 12 months. 2. A judge can elect to stay part of this sentence but a minimum of 24 hours must be served. 3. For convictions with a BAC less than.08, 24 hour may also be stayed upon the discretion of a judge months probation less any jail time served Suspension of Driver s License for your first conviction in a 5-year period If you are 21 or over, your license will be suspended for one year. A limited driving permit is available on a first in five violation, and you will be eligible for early reinstatement after 120 days providing you have completed DUI School. If you are under 21 and your BAC is over.08 your license will be revoked for 12 months. If your BAC is under.08 it will be revoked for 6 months. In both cases no work permit is allowed If you are convicted of a DUI with Drugs, your license will be suspended for one year with early reinstatement after 6 months pending DUI School. Commercial Drivers will have their Commercial License suspended for one year in addition to the suspensions listed above. Fines $300-$1,000 Community Service Minimum of 40 hours for those over 21, 20 hours minimum for those under the age of 21. A judge will decide the actual hours. Additional Legal Penalties Additional Statutory Charges Clinical Treatment and Evaluation may be required, attendance at Alcohol Programs may be required 12

13 2nd DUI Offense Jail Sentence Days to 12 months 2. A judge can elect to stay part of this but a minimum of 3 days must be served months probation less any jail time served Georgia License Suspension or Suspension of Out of State Residents Right to Drive in Georgia Fines 3 year license suspension No work permit or hardship license for a minimum of 12 months After the first 12 months a work permit is available for 6 months after installation of an ignition interlock device Early reinstatement after 18 months $600-$1,000 Community Service 240 hours minimum Additional Legal Penalties All license plates issued to you will be confiscated until a work permit is obtained or license is reinstated. Hardship license may be issued for family members. Your photo, name, address and arrest details will be published in the local newspaper. CDL lifetime ban Additional Statutory Charges Clinical Treatment and Evaluation mandatory 13

14 3rd DUI Offense Jail Sentence Days to 12 months 2. A judge can elect to stay part of this but a minimum of 15 days must be served months probation less any jail time served Georgia License Suspension or Suspension of Out of State Residents Right to Drive in Georgia 5 year license suspension Probationary License available after 2 years after installation of interlock device, completion of counseling and DUI school Fines $1,000-$1,500 Community Service 240 hours minimum Additional Legal Penalties All license plates issued to you will be confiscated until a work permit is obtained or license is reinstated. Hardship license may be issued for family members. Your photo, name, address and arrest details will be published in the local newspaper. CDL lifetime ban Additional Statutory Charges Clinical Treatment and Evaluation mandatory 14

15 4th DUI Offense (any offense before 7/1/2008) Jail Sentence Days to 12 months 2. A judge can elect to stay part of this but a minimum of 15 days must be served months probation less any jail time served Georgia License Suspension or Suspension of Out of State Residents Right to Drive in Georgia 5 year license suspension Probationary License available after 2 years after installation of interlock device, completion of counseling and DUI school Fines $1,000-$1,500 Community Service 240 hours minimum Additional Legal Penalties All license plates issued to you will be confiscated until a work permit is obtained or license is reinstated. Hardship license may be issued for family members. Your photo, name, address and arrest details will be published in the local newspaper. CDL lifetime ban Additional Statutory Charges Clinical Treatment and Evaluation mandatory Possible Vehicle forfeiture 15

16 4th DUI Offense (all offenses after 7/1/2008) Jail Sentence 1. Treated as a Felony 2. 1 to 5 years to serve in prison. 3. A judge can elect to stay part of this but a minimum of 90 days must be served. Georgia License Suspension or Suspension of Out of State Residents Right to Drive in Georgia 5 year license suspension Probationary License available after 2 years after installation of interlock device, completion of counseling and DUI school Fines $1,000-$5,000 Community Service 480 hours minimum (maybe reduced if prison time exceeds 3 years) Additional Legal Penalties All license plates issued to you will be confiscated until a work permit is obtained or license is reinstated. Hardship license may be issued for family members. Your photo, name, address and arrest details will be published in the local newspaper. CDL lifetime ban Additional Statutory Charges Clinical Treatment and Evaluation mandatory Possible Vehicle forfeiture Many additional consequences of being a convicted felon Please note there are many possible additional penalties outside of what is decided in court such as loss of car insurance, loss of professional licenses (teachers, doctors, lawyers, etc.), civil liability, impacts upon life insurance rates, and restrictions on travel. DUI convictions can also negatively influence future employers and keep them from hiring you. The 16

17 consequences for a Georgia DUI conviction are very serious and last a lifetime, so please get the best legal help you can find. ADDITIONAL PENALTIES FOR A GEORGIA DUI Many people don t realize how severe the penalties are for a Georgia DUI. Even for a first time conviction, the minimum sentence includes jail time, fines, community service, and a driver s license suspension. However, beyond these punishments there are a host of additional penalties that could affect your life for years to come, and in ways that may surprise you. How a Georgia DUI Can Effect your Car Insurance A Georgia DUI conviction can affect you in many ways you may not realize. This is why you should consult with a qualified Atlanta DUI attorney. 17

18 If you are convicted of a DUI in Georgia one thing is for certain; your auto insurance rates are going to rise significantly. Depending on your driving history and your insurance provider, your auto insurance rates may triple or you may be dropped from coverage altogether. Even if you maintain a perfect driving record after a DUI, it will take years for your premium to start decreasing, and it will probably never return to your prearrest rate. The increased auto insurance costs alone are usually more than what it costs to hire a good DUI lawyer in Atlanta. In addition to auto insurance, your life insurance and medical insurance premiums will also increase because of a DUI conviction. In some instances, insurance companies drop the life insurance coverage of convicted drivers and group them into a high-risk pool with higher premiums and fewer benefits. Restrictions on Travel because of a DUI Car Rental Those who travel frequently often rely on renting a car once they land at the airport. If you re convicted of a DUI, you can forget about renting a car. Car rental companies do not rent cars to drivers who have a DUI conviction. You will have to opt for public transportation, or a taxi, instead. 18

19 Travel Restrictions Many countries will not allow you to enter their borders if you have a DUI conviction on your record. Most notably, Canada has stopped a number of people at the border because of a prior DUI. This can be an embarrassing experience, especially if you are traveling with family or friends and you have booked tours and accommodation in advance. How a DUI Can Effect Your Employment If you apply for a new job and they perform a background check, you can be certain that they will see your Georgia DUI conviction. That is because a DUI conviction remains on your criminal record forever. It never goes away. While it is unethical, and in some cases illegal, to discriminate against a job applicant on the basis of a DUI conviction, it happens all the time. In some career fields, like CDL drivers and pilots, a DUI can trigger a suspension or revocation of an occupational license. Doctors, nurses, schoolteachers, and military personnel convicted of a DUI can face additional penalties from their disciplinary boards as well. 19

20 The Total Cost Associated with a First DUI As you can see, there are many costs associated with a DUI conviction. Once you take into account increased insurance premiums, transportation costs for the period you are without a license, alcohol counseling, time spent doing community service work, and probation supervision fees, you could spend well over $10,000 for a first time DUI conviction. This does not include potential losses if you are a licensed professional or if you are discriminated against while applying for a job. The penalties for a Georgia DUI conviction are not only harsh but they can affect you for many years to come. This is why it is in your best interest to meet with a qualified lawyer who can examine your case and help you plan an appropriate course of action to best protect your rights. 20

21 DUI PENALTIES FOR GEORGIA SCHOOL TEACHERS Anyone can be charged with a DUI in Georgia. During my time as a defense attorney in the Atlanta area, and as a prosecutor in Fulton County, I saw people from all walks of life charged with DUI. However, people who hold professional certifications such doctors, lawyers, nurses, and schoolteachers face possible additional damages in the form of disciplinary action by their respective certification boards. I had the opportunity to represent schoolteachers all across Georgia and wanted to answer the most commonly asked questions by Georgia schoolteachers charged with DUI. Will I be able to teach? Georgia Schoolteachers May Face Additional Penalties if Convicted of a DUI 21

22 Under the Georgia professional standards Code of Ethics for Educators, Georgia schoolteachers charged with DUI do not automatically lose their teaching licenses. However, they are at risk. Even for a first DUI, the school board can suspend or reprimand the teacher. This decision is completely at the discretion of the board. Repeat offenders are clearly in danger of losing their teaching jobs based on the morality and ethics clause for professional standards. In reality, what school would want a teacher whose photo was published in the paper as a DUI convict and has served multiple stints in jail to be working with their kids? Do I have to Disclose the DUI Charge to the School Administration? The Georgia professional standards Code of Ethics for Educators has statutes concerning honesty and disclosure. Therefore, it is in your best interest to have full disclosure with your principal early on in the process. Based on past experiences, it is not in your best interest to wait until the arrest has turned into a scheduled court appearance to inform your superiors about your pending case. After discussing your individual case with your attorney, you can make the decision as to how and when you should inform your school about your DUI arrest. 22

23 How will a DUI Drugs Conviction or Arrest Effect My Teaching Career? The Code of Ethics for Educators clearly states that: Standard 1: Legal Compliance An educator shall abide by federal, state, and local laws and statutes. Unethical conduct includes but is not limited to the commission or conviction of a felony or of any crime involving moral turpitude; of any other criminal offense involving the manufacture, distribution, trafficking, sale, or possession of a controlled substance or marijuana as provided for in Chapter 13 of Title 16; Therefore, any Georgia teacher convicted of a drug related offense such as DUI Drugs, can expect to face sanctions from his or her professional board. These sanctions may include suspension or even loss of teaching privileges. 23

24 I JUST GOT ARRESTED FOR DUI; NOW WHAT? Choosing the Right Atlanta DUI Lawyer Can be a Real Life Saver Most people who are arrested for DUI have no prior criminal record and have no idea what to expect. As an Atlanta DUI attorney and former Fulton County prosecutor I witnessed how people charged with DUI were unfamiliar with the judicial process, and therefore made a number of mistakes. The biggest mistake, in my opinion, was underestimating the severity of the penalties for a Georgia DUI. Even for a first offense, you could face jail time and a lengthy license suspension. 24

25 The best piece of advice I can give to someone facing a DUI is: Get Professional Help Now. There are many DUI attorneys in Atlanta and the surrounding areas. Some of them are well-known names. My advice is to sit down with a few different DUI attorneys and discuss your case with them, and ask a lot of questions. Make sure to ask if the lawyer you are speaking with at the initial consultation is the same one who will be handling your case from start to finish. Many larger firms will start you off with a senior partner and then shuffle your case off to a junior lawyer in the end. I do not do this. Remember, DUI cases are very complex and the outcome of your case will affect you for the rest of your life. Do the right thing and get a professional DUI attorney to review your case and explain your legal options. 25

26 I KNOW I WAS DRINKING, SHOULDN T I JUST PLEAD GUILTY? I represent many DUI clients in Atlanta and one of the many questions people ask me is whether they should just plead guilty at the beginning of the case. Based on my experience as an Atlanta DUI attorney, and as a former DUI prosecutor in Fulton County, I usually advise my clients to fight their case rather than just pleading guilty. While I cannot give specific advice without looking at the facts of your case, I can tell you my methods in dealing with a Georgia DUI case. Below are just some of the reasons I advise my clients to fight their DUI cases. Additional out-of-court penalties for a Georgia DUI conviction are severe and costly. While the legal penalties for a Georgia DUI are severe, they are compounded by additional out-of-court penalties that can be crippling. These additional penalties are reason enough to challenge the DUI charge and protect your rights and your future. Not only will you have to deal with jail time, fines, community service, and suspension of your Georgia driver s license, you will also have to deal with higher insurance rates and travel restrictions. Furthermore, a DUI conviction will become part of your 26

27 permanent criminal history and will show up when an employer runs a background check on you. In many cases, you may be passed over for job opportunities that you are qualified for in favor of someone with a clean record. These additional out-of-court penalties can truly change your life forever. Fighting your DUI case allows us to critically examine the evidence brought against you. Just because a blood or breath test says that you are guilty doesn t mean it s true. There are many problems with testing techniques that can cause the machines to report artificially inflated BAC (blood alcohol content) numbers. I saw many cases where a person, who was 100% sober, was cited for having an illegal BAC level. This commonly happens to people who are suffering from diabetes. 1 By confronting the evidence against you, and cross-examining it thoroughly, we can determine how solid the prosecution s evidence is against you. We can then make an informed decision about what course of action should be taken regarding your case. 1 See Diabetes chapter. 27

28 Why choose to lose without playing the game? Why choose to lose when nothing has yet been proven? The state will not go easier on you because you stood up and took responsibility. You have a constitutional right to a fair trial, and you should not be afraid to assert that right. Many times, when the prosecution sees that defense counsel is serious about taking the DUI charges to trial, they offer a better deal to the client in order to avoid a trial. As a former prosecutor, I know the pressures prosecutors face and how, in many cases, the last thing they want to do is go to trial. I represented many clients where the prosecution backed down on the morning of the trial, or even offered a deal for a reduced non-dui charge. Remember, pleading guilty is something that cannot be undone, and that decision should be made only after thoroughly investigating your case. The penalties for a DUI go far beyond what happens in the courtroom (see chapter on DUI penalties). Finding the right defense is the only way to prevent suffering from these penalties. 28

29 OK, I WANT TO FIGHT MY CASE. I WAS NOT DRUNK! WHY DID I GET A DUI? It is a common misconception that you have to be drunk to be arrested for driving under the influence. While this was once the norm, nothing could be further from the truth in today s politically charged landscape. Over the last twenty years, the role of alcohol use during the operation of a motor vehicle has changed dramatically. This is due largely to the efforts of organizations such as MADD and SADD. While it is not against the law in Georgia to drink and then drive a motor vehicle, we see more and more public service announcements aimed at discouraging this practice. The Governor s office of Highway Safety broadcasts tag lines such as, Over the limit, under arrest, and We will find you, and you will be arrested. Yet, this was not always the case. The term legal limit has changed over many years. The legal limit, or BAC, as applied by the National Highway and Transportation Safety Administration was.15 percent. The limit was then lowered to.10 percent. These numbers were not arbitrarily selected. They were the result of using scientific evidence that indicated this was the true level of impairment. Yet as time moved on, the number continued to decrease. 29

30 Ultimately, the National Highway and Transportation Safety Administration changed its rules so that the legal BAC limit became.08 percent for you to be deemed an impaired driver under the influence of alcohol. This reduction was widely adopted across the country, as states wanted to receive federal highway grant money and could only do so by coming into conformity with the new lower blood alcohol concentration number. Plainly put, if a state did not reduce its legal limit to 0.08, then they would not receive Federal highway money. Dollars began to drive the prosecution of DUI. In order to receive Federal highway grant money, Georgia changed its laws and adopted the.08 BAC limit. Today, there continues to be a push to lower the limit further, toward The aggressive stance of law enforcement when making a DUI arrest is the result of the officer s training. In their training course on DUI law, officers are taught that every time a drunk driver is stopped, that same person drove under the influence ten other times and wasn t caught. 2 This culminates with a rush to judgment based upon nothing more than an odor of alcohol being present. There always exists a public safety argument that the officer should be cautious. In order to ensure that no one gets hurt on the 2 NHTSA DWI Detection & Standardized FST II-4 Student Manuel

31 road, an officer can choose to arrest you for DUI based on probable cause. However, public safety arrests are not the standard of proof required under the law. This means that you can be arrested for DUI even if you are not drunk. 31

32 A BRIEF LESSON IN ANATOMY: HOW THE BODY ABSORBS ALCOHOL When an alcoholic beverage is consumed, it passes through the esophagus, through the stomach, and into the small intestine. While a small amount of alcohol is absorbed into the bloodstream through the mucus membranes of your esophagus and stomach as you ingest it, the vast majority of it enters the bloodstream through the walls of the small intestine, because alcohol is water-soluble. The bloodstream then rapidly transports the ethanol throughout the body where it is absorbed into the body tissues in proportion to their water content. The higher the level of alcohol, the more water concentration it will try to reach. Because the brain has the highest concentration of water, the alcohol will try to migrate there, thus impairing your judgment, and making you look more inebriated. Ethanol is greatly diluted by fluids within the body. For example, a 1- ounce shot of 80-proof whiskey, which contains 0.4 fluid ounces of ethanol, diluted in a 150-pound person, will produce somewhere in the neighborhood of a 0.02% blood alcohol concentration. In a a smaller person, with possibly one half of the water-weight in his /her body than the individual in the previous example, that same 0.4 fluid ounce of ethanol would likely produce 32

33 an alcohol concentration at or near 0.04%. Thus, the less water-weight in the body, the higher the blood alcohol concentration. The liver can metabolize only a certain amount of alcohol per hour, regardless of the amount that has been consumed. The rate of alcohol metabolism depends, in part, on the amount of metabolizing enzymes in the liver, which can vary among individuals. In general, after the consumption of one standard drink, the amount of alcohol in the drinker's blood reaches maximum concentration within 30 to 90 minutes from the time that drinking stops. 3 Furthermore, alcohol is metabolized more slowly than it is absorbed. Since the metabolism of alcohol is slow, consumption needs to be controlled in order to prevent accumulation in the body and intoxication. Ethanol is volatile and, as a result, the amount of alcohol in proportion to the concentration of the alcohol in the blood transfers from the blood to the alveolar air sacs in the lungs. This occurs in much the same way that carbon dioxide leaves the alveolar air sacs and enters the lungs for exhalation from the body. As a result, it is possible to analyze an alveolar breath sample to determine the breath alcohol concentration (BrAC) and predict, with a high degree of accuracy, the blood alcohol concentration at that same point in time. 3 A standard drink is defined as 12 ounces of beer, 6 ounces of wine, or 1.5 ounces of 80- proof distilled spirits, all of which contain the same amount of alcohol. 33

34 The effects of alcohol are delayed when you eat while drinking. This delay is caused by the pyloric sphincter, or valve-- a strong ring of smooth muscle at the end of the pyloric canal which lets food pass from the stomach to the duodenum traps the food and drink inside of your stomach and prevents absorption and metabolism, including alcoholic beverages. 4 This valve receives a signal that food is passing into the stomach and closes off the entry into the small intestine in order to let the stomach acids digest and break down the food. The alcohol does not enter the intestines until the food is finished being digested by the stomach acids. This is why, when you eat and drink together, it takes longer to feel the effects of the alcohol. It is also the reason you can leave a restaurant or bar feeling sober, and then have increasing symptoms of intoxication within the next few minutes of operating a motor vehicle, thus possibly resulting in a DUI. 4 The pyloric canal is located at the base of the stomach. The duodenum is the first section of the small intestine. 34

35 THE REASONABLE, ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY AND YOUR CAR BEING STOPPED Both Federal and Georgia law is very clear on the role of police stopping citizen passenger cars. In order to conduct an investigatory stop, the officer MUST articulate specific facts, with rational inferences, that reasonably justify a suspicion of criminality. While such a determination is highly case-specific, the governing standard of articulable suspicion requires less than probable cause, but more than mere caprice. Baker v. State 256 Ga. App. 75 (2002). Simply put, police officers cannot stop you without a valid reason. They are not allowed to stop a car for acting suspicious or being in a known bad area without more information. Ultimately, what this means is that the officer must be able to present a valid reason for stopping your vehicle at the time of your DUI investigation. Most police officers will allege a variety of traffic violations including: weaving, speeding, following too closely, headlight infractions, vehicle tag infractions, cracked windshield, window tint too dark, or being involved in an accident. At this point the officer has no reasonable basis to suspect the driver of being under the influence. The officer will activate his/her emergency equipment and pull over a driver for the sole reason of 35

36 ensuring that everything is all right and either warning or citing the driver for the traffic infraction that was witnessed. If you only received one citation for DUI and no citations for traffic code violation, there is likely a question about whether the officer had a reasonable, articulable suspicion in your case. THIS DOES NOT APPLY IN THE CASE OF ROADBLOCKS, OR WHERE THE OFFICER CAME UPON A VEHICLE THAT WAS ALREADY STOPPED. If a reasonable, articulable suspicion cannot be established in your case, you should be able to prevail in getting the evidence dismissed. 36

37 HOW DID YOUR CASE ESCALATE FROM YOU RECEIVING A TRAFFIC CITATION TO YOU BEING INVOLVED IN A DUI ENCOUNTER? When the officer approached your vehicle, they had no legal reason to suspect you of driving under the influence. Most officers will approach a driver and then inform him/her of the reason for stopping the vehicle. The officer will then request to see a driver s license and proof of insurance or vehicle registration. The investigation quickly changes from a traffic citation to a DUI based on only one of two questions: Where are you coming from tonight? and/or How much have you had to drink this evening? The answer to these questions may result in you being asked to exit your vehicle. Furthermore, your response to these questions is an admission that will be used in court. It does not matter that the officer did not inform you of your Miranda rights, because you are not under arrest at this point. Unknown to you, the officer is making observations about how you move and react while you are still inside of your car. The officer is noting how strongly you smell of alcohol (mild, moderate, or strong), if there are any alcohol containers inside of your vehicle, how your clothing looks, how long it takes you to get your license and registration (for example, if the 37

38 officer believes you have fumbled trying to locate it or if you handed the officer the wrong document). The officer is taking note of how you speak ( whether you are mumbling or slurring your words) and how your eyes appear (if they are red, bloodshot, glassy or watery). Based upon all of these observations he will make a decision to ask you to exit your vehicle. Upon your exit from your vehicle, the officer will note how you walk. Did you stumble? Did you have to hold onto the vehicle to steady yourself? Did you elect to lean on the vehicle (even if not for support)? Did you fall down? Did you follow his directions and walk to the rear of your vehicle? At this point you will be asked to take field sobriety tests. 38

39 ALL ROADSIDE SOBRIETY TESTS ARE VOLUNTARY We were all taught as children that police officers are our friends and are there to help us. As adults we want to believe what we were told as children and be respectful of police officers. This often culminates in providing evidence on the side of the road that will harm us and hurt the defense of our case. Many times, an officer will ask drivers they have stopped if it is all right to check and see if they are safe to drive. This seems harmless enough, so the natural inclination is to say yes, especially if you believe you are not drunk. Moreover, you may think that if you say no to these tests that the officer will take you to jail. There are three standardized field sobriety tests that are used in DUI cases: the horizontal gaze nystagmus, the walk and turn, and the one leg stand. As these three standardized tests, however, officers may use other tests as well, such as a roadside breath test (called a portable breath test), asking part of the alphabet, the rhomberg test, agility tests for finger dexterity, picking up coins, and many other things. However none of these additional tests are validated by any agency as determining impairment. Yet, officers will likely put a lot of stock into these tests in order to support their 39

40 arrest decision. The truth is that these tests are baseless and their results lack any credibility. It is important to know that these tests are voluntary. However, the officer is not required to tell you that they are voluntary. Even though you are being compelled to give evidence against yourself, there is no recourse. The only answer is to be an informed citizen, and know it is in your best interest to refuse to take these tests. Most people who come into my office are adamant that they passed these tests. The truth is they did not. The reason is that these tests are not designed to be fair; they are designed to be difficult. These tests require you to perform learned behavior, similar to the actions of professional athletes who spend countless hours practicing prior to sporting events. However, unlike a professional athlete, you do not get the luxury of practicing these behaviors prior to taking the examination that decides whether or not you will be arrested. As such, my advice to you is this: learn from the mistakes of others. When asked if you will take roadside tests, politely decline. If you are asked if the officer can look at your eyes, politely decline. In other words, do not help the state make its case against you. The officer will most likely also arrest you and ask you to submit to a blood or urine test or breath test to be taken on a larger machine at the police 40

41 station. While you still have the right to refuse this test, this time a refusal will result in the officer moving for an automatic suspension of your driver s license. However, if you take the state s test, you also have the right to have a blood, breath, or urine sample tested at an independent crime lab. This will cost you some money, but it can help your defense if there is a discrepancy between what the state s test results allege and what the independent lab s test results allege. 41

42 THE ORDER OF THE ROADSIDE SOBRIETY TEST The order of roadside sobriety tests that the officer elects to administer is important. In order to prevent officer bias and achieve greater accuracy when determining impairment, The National Highway Traffic Safety Administration has set a protocol and procedure outlining which tests to conduct, and in what order to conduct the tests. For example, many officers elect to begin field sobriety tests by having the driver blow into a roadside breath test. This is not proper under NHTSA protocol. In fact, it will drastically bias all remaining tests, as the breath test provides a number for the officer to evaluate every other test against. The proper order for administering the roadside field test pursuant to the NHTSA training manual is: 1) the eye test (HGN), 2) the walk and turn, 3) the one leg stand, 4) the roadside breath test. While it may seem like an insignificant deviation to administer these tests out of order, it is an important issue in defending your case. 42

43 The Eye Test The eye test conducted by the officer is called the horizontal gaze Nystagmus. Out of all the roadside tests, only this test, when properly administered, has some scientific validity. Nystagmus is an eye condition characterized by involuntary rapid, jerky eye movements. It is not a tell-tell sign of drinking. In fact, symptoms of Nystagmus can be a result of disorders other than DUI and therefore it should always be investigated by a specialist. There have been approximately two hundred types of Nystagmus identified. Most of these forms are pathological and have either been classified as being congenital or acquired. As so many types of Nystagmus exist, it is important to determine what the officer observed in the subject s eyes. It is important to distinguish between these conditions because Acquired Nystagmus is often indicative of neurological dysfunction. Some Common Types of Nystagmus include: Acquired or Late Onset Nystagmus Occurs later in life, usually the consequence of some disease or accident. Congenital or Early Onset Nystagmus Occurs in the very young, persisting for the rest of the individual s life. This form has many causes, sometimes genetic and often linked to other eye problems. 43

44 Horizontal Nystagmus - The eyes move back and forth. Jerk Nystagmus - The eyes accelerate as they move. Latent Nystagmus - Condition appears when one eye is covered up. Manifest Latent Nystagmus - Visible all the time because one eye is covered by some other form of impairment such as a cataract. Rotatory Nystagmus - The eyes move around and around. Pendular Nystagmus - Thought to be a result of a delay in messages to the brainstem. It can be congenital or acquired and is characterized by eye movements that are equally paced in each direction. Oscillations may be vertical, horizontal, diagonal or rotary. There also exists a fast and slow phases to the waveform. Vertical Nystagmus The eyes move up and down. Again, Nystagmus is not exclusive to alcohol consumption. The involuntary jerking of the eye can be a symptom of many things. It is very slight, and difficult to view in many individuals. Moreover, it is important to know if something has occurred to cause a false positive sign of Nystagmus. There are many factors that can cause a false positive. Depending upon the conditions in your case, you could have been suffering from a symptom that caused an inaccurate test result. Finally, it is also possible that you could suffer from resting Nystagmus, which occurs when you show positive results 44

45 for Nystagmus without any alcohol in your system. Approximately ten percent of the population suffers from resting nystagmus. When taking all of this into consideration, it is easy to see how unreliable this examination truly is when applied to people in real life, roadside situations. The Walk and Turn & the One-Leg Stand Tests The final two DUI tests involve divided attention and walking. The walk and turn requires you to walk on a balance beam-style imaginary line, then turn around and walk back. The one-leg stand requires you to hold one leg in the air. But what do these test results truly tell the police officer? While both of these tests are exclusively balance exercises, neither test s results have ever been scientifically validated. Furthermore, because the tests are athletic agility maneuvers, there are extreme caps and limitations for the use of these tests. For example, neither test should be conducted on individuals over 65 years of age nor are they recommended for anyone who is thirty pounds or more over weight. In defense of your case, the most important factors in grading these balance exercises is to determine what the conditions were like where the tests were conducted. Specifically: what the grade or crown of the road was where the test was conducted. It might appear to be level on video, when in 45

46 actuality it is quite slanted. Was the road gravel or black top? Were there loose rocks causing a loss of traction? Were the tests performed in a parking lot with wet and/ or oily spots? How was the road or parking lot lit? Finally what type of shoes were you wearing? Did you have the opportunity to take them off? The Roadside Breath-Test There are extreme limitations with the portable breath test device used by officers in Georgia. The preferred device used by the state is the alcosensor IV. This device is powered by fuel cell technology, which means that as it is used repeatedly, the battery wears down and the results become less reliable. Moreover, the device does not have a false positive detector (called a slope detector ) and is therefore incapable at differentiating between mouth alcohol not in your bloodstream (such as mouthwash) and breath alcohol. The device is a piece of equipment that is on the road with the officer for years on end. This means it is exposed to extreme heat and cold, thereby increasing the odds of malfunction. Finally, the device is never calibrated or checked for accuracy once issued to the officer and so it also lacks scientific reliability. This device is unable to filter or distinguish between breath alcohol and substances that mimic alcohol in infrared light. Based on these 46

47 limitations, the National Highway Traffic Safety Administration, which oversees what types of testing should be conducted in DUI detection, has stated this device should be used as nothing more than an evaluation tool. However many police will place undeserved weight on the alco-sensor result in their arrest despite the inadmissibility of the numeric result. Why, you may ask, is this the only test they have with a number? Everything else they use is subjective by its very nature. In order to account for these numerous limitations, state legislature does not allow the numerical read-out on this device to be used in court. However, because the device does give a numerical read-out to the officer despite the fact that such a result is considered unreliable and not allowed in court the officer will tell you that you have tested positive for alcohol. A common point of misunderstanding is whether this roadside breath test is in fact a state administered breath test. Do not be confused by this device and the Intoxilyzer 5000 breath test. Many people believe they have taken the breath test when they blow into an alco-sensor on the side of the road. However, based on this device s limitations it is not considered the state breath test and the numerical results are not admissible in your case. The Intoxilyzer 5000 is the state breath machine and while it exhibits its own 47

48 limitations, it corrects many of the problems discussed here in reference to the roadside breath test. Atlanta DUI Attorney Doug Chanco discusses portable breath testing and how it is unreliable. One of the methods commonly used in by police in Georgia are the handheld breath tests. These are used at roadside and quickly produce a numerical result of a Breath Alcohol Level. The handheld breath tests use infrared technology to determine the amount of alcohol in the breath based on how various substances absorb the beams. It is an indirect type of measurement because this device has no ability to filter or distinguish between breath alcohol and substances that are similar to alcohol in infrared 48

49 light. Based on the limitations in these devices, the National Highway Traffic Safety Administration which oversees what types of testing should be conducted in DUI detection has stated this device should be used as nothing more than an evaluation and screening tool for the officer. However many police officers place undeserved weight on the alco-sensor results in their arrest despite the inadmissibility of the numeric result in court. Why Roadside Breath Tests are Unreliable As mentioned before, the results of a handheld DUI breath test are not admissible in court do to its unreliability. For example, a DUI breath device will detect acetone, a natural chemical produce by the body, and count it as alcohol. This is a concern for diabetics experiencing low blood sugar in which their bodies produce extra acetone. Thus many diabetics have been falsely charged with DUI based on this design flaw. Another complication with this device is the problem of residual mouth alcohol. If someone has consumed a drink recently, the leftover alcohol in the mouth can produce results that leads an officer to believe you are above the legal limit, when in actuality, you true blood alcohol content could be drastically lower. There are also many issues with the calibration and maintenance of these machines. Police officers with little training are responsible for 49

50 properly calibrating these machine which are rarely done correctly and consistently. This can also cause erroneous results. Roadside Breath Tests in Georgia are Purely Optional One thing people do not realize is that the roadside breath test is completely optional. You will suffer no ill consequences if you refuse this test. The prosecution cannot mention this refusal as evidence in court. By taking the test you are only providing the police and prosecution with more evidence against you. 50

51 GEORGIA DUI BREATH TESTING: AN INTRODUCTION Breath test evidence is very common in Georgia DUI cases. There are many reasons why breath-testing devices exaggerate alcohol levels and are unreliable. The short answer is your breath does not go into the machine and cause a number to come out. It is a test run based on statistics and applying many laws of averages. Keep in mind that both prosecutors and juries like numbers. They feel that the data makes a conviction easier to obtain than in a less safe charge as we use the example.10 is greater than the legal limit of.08. However, it is important to know that a chemical test result, like any other evidence, has reliability issues. State-Administered Chemical Test, aka, The DUI Breath-Test One of the main pieces of evidence in a Georgia DUI case is the result of the breath test. It is from these breath-testing machines that police obtain the blood alcohol content which is the main piece of evidence for a per se DUI charge. I cannot begin to tell you how many prosecutors, jurors, judges, and defense lawyers believe these numbers as if it were gospel. The truth is 51

52 that the breath-test result is nothing more than an average calculation. The State s position is that this machine is accurate from the date it is calibrated at the manufacturer. To ensure it remains accurate, they have an officer perform a quarterly inspection upon it four times a year. During this quarterly inspection, the machine is introduced a control substance called a wet bath. This substance is alcohol calibrated at.10. The machine will test the substance and, as long as it gets a reading between 0.90 and 0.11, it is deemed to be working accurately. So how does the machine work? Obviously the breath-testing device does not actually know your blood alcohol concentration. Instead, it takes a sample of air from the deep part of your lungs, traps it inside of a chamber, shines an infrared light through it on one side and then uses a spinning wheel with three filters to see how many molecules in the air the filter absorbs. Alcohol molecules are then isolated and tested by the machine s software to determine a blood-alcohol average. I have done quite a bit of research on this equipment and have attended numerous seminars dealing with breath-testing equipment. This is one of the key advantages I bring to the table when defending DUI cases in 52

53 the Atlanta area. Knowledge of the weaknesses and limitations of breathtesting equipment has helped me to reach favorable verdicts in many DUI cases. Following are some areas where Georgia DUI defense lawyers can challenge the State s breath test evidence. Georgia DUI Breath Testing Machine One of the main pieces of evidence in a Georgia DUI case is the result of the breath test. It is from these breath-testing machines that police obtain the blood-alcohol content which is the main piece of evidence for a per se DUI charge. I have done quite a bit of research on and have attended numerous seminars dealing with breath testing equipment. This is one of the key advantages I bring to the table when defending DUI cases in the Atlanta area. This knowledge of the weaknesses and limitations of breath testing equipment has helped me to reach favorable verdicts in many DUI cases. Here are some areas where Georgia DUI defense lawyers can challenge the State s breath test evidence. The Breath Test Machine of Choice in Georgia: 53

54 The Intoxilyzer 5000 The Intoxilyzer 5000 Georgia DUI Breath Testing Machine Georgia, like many states in the country, uses the Intoxilyzer 5000 for DUI breath testing. This machine, like all breath testing equipment, has a number of limitations that can cause erroneous results which, if not contested properly, can lead to a false DUI conviction. Here are some of the limitations and weaknesses of the Intoxilyzer 5000 and how it can cause inflated results that could get you falsely convicted of a DUI. 1. Residual Mouth Alcohol Residual mouth alcohol is the alcohol that remains in the mouth after a drink. The presence of this alcohol in the mouth is known to cause inflated numbers in breath tests. The makers of the Intoxilyzer 5000 tried to solve 54