DUI Case Law and Updates
William S. Hardman, Jr.
Attorney at Law
Attorney at Law
Memorial Day Weekend Includes Enforcement of Boating Laws & Social Distancing for Game WardensFor Immediate Release: May 21, 2020
SOCIAL CIRCLE - As Memorial Day quickly approaches, Georgia Game Wardens across the state are gearing up for a very busy weekend on the lakes, rivers, beaches, and on State Parks. They will be patrolling all state waterways, making sure the thousands of recreation seekers are lawfully enjoying themselves. This year, however, they have an added responsibility – making sure everyone is complying with the social distancing executive order.
“The Division will have a strong presence on our state impoundments, rivers and beaches across Georgia, addressing boating violations and emphasizing Boating Under the Influence (BUI) enforcement in order to keep our waters safe,” said DNR Law Enforcement Division Director Colonel Thomas Barnard. “They will also be addressing any violations regarding the Governors Executive Order.”
The Executive Order, which is in effect through May 31st, requires a 6-foot distance between individuals from different households, and therefore applies to people visiting beaches, lakes, parks and other public locations as well.
“With social distancing, our goal is compliance. We are not focused on writing tickets or making arrests related to social distancing. From what we have seen so far, when we ask people to comply, they do, and that is what we are looking for,” said Barnard.
When it comes to violations of boating laws, enforcement will be tight, especially for those who choose to operate a vessel while impaired. The Division has a zero-tolerance policy for BUI and violators will go to jail.
In Georgia there were 113 boating incidents with 26 fatalities in 2019, and Game Wardens made 209 boating under the influence arrests. So far in 2020, there have been 40 boating incidents, resulting in seven fatalities, and 25 people have been arrested for BUI. Additionally, there were 44 drownings statewide last year and 14 so far this year.
Boating Safety Tips
• Designate an operator. Do not drink and operate a boat. Georgia law states anyone operating a vessel with a blood alcohol content level of .08 or higher is boating under the influence.
• Take a boating safety course. Recommended for everyone, but anyone born on or after January 1, 1998 is required to have successfully completed a DNR-approved boater safety course before operating a motorized vessel on Georgia waters. Visit https://gadnrle.org/boating-education for course information.
• Wear a life jacket. Children under 13 years of age are required by law to wear a life jacket while onboard a moving vessel, but it’s highly recommended for EVERYONE to wear a life jacket.
• Don’t overload your boat with people or equipment. Check the capacity plate for the maximum weight or the maximum number of people the boat can safely carry.
• Use navigation lights at ALL times between official sunset and official sunrise. Check lights before it gets dark.
• Watch your speed. The 100-foot law applies to ALL size vessels and prohibits operation at speeds greater than idle speed within 100 feet of a moored or anchored boat or any boat that is adrift, a dock, pier or bridge, persons in the water, any shoreline at a residence, public park, beach or swimming area, a marina, restaurant or any other public use area, or any vessel, unless overtaking or meeting another vessel in compliance with the rules of the road.
The Georgia Department of Natural Resources Law Enforcement Division is committed to conserving our natural resources and protecting the people we serve through fair and vigorous law enforcement, quality education, and community involvement.
TRUST, FAIRNESS, PROFESSIONALISM.
Mark McKinnon, Public Affairs Officer
Office: (770) 918-6408
Texting while driving is a common way to get pulled over in Georgia. Below is a short summary of the law and what is allowed and what is not allowed in Georgia and the penalties for violations of the law:
What is allowed:
1) Earpieces and headphones;
2) Apple Watches;
3) Siri- you can press one button to activate your siri assistant on your device;
4) You can use your GPS but cannot type in an address while you are moving.
**You are allowed to make emergency calls for emergency situations without using a hands-free device. It is relatively unlikely however that you will be pulled over for a situation where you are making an emergency call.
What is NOT allowed:
1) Taking off your seatbelt to reach for your phone;
2) holding or supporting your phone with any part of your body (it cannot be sitting in your lap)
3) Any type of messaging (text, Facebook, email or other type of message)
4) Recording any type of video while you drive ( if there were to be a legal search of your information, you should not have a live video or picture posted to your social media account while driving or that evidence may be used against you)
All violations of this section of Title 40 of the traffic code are misdemeanors.
1st Violation- Up to a $50 fine and 1 Point on your license
**If it is your first offense and you are able to show a receipt that you have purchased a hands-free device, your fine will be waived and there will be no points assessed on your driver's license.
2nd Violation- Up to a $100 fine and 2 Points on your license
3rd Violation- Up to a $150 fine along with 3 Points on your license
Note: Many DUI cases and other types of criminal investigations begin with a stop for someone using their phone while driving. You may also be held liable for personal injuries or property damage if it is proven that you were using a mobile device while driving. It is important to make sure that you have a hands-free device to avoid any negative consequences to you, your license or another person due to using a mobile device while driving.
Getting arrested for DUI Marijuana is very different from an alcohol related DUI arrest. Below is a brief summary of some factors and license suspensions that are involved in a Georgia DUI marijuana case:
Georgia code section for DUI marijuana O.C.G.A. 40-6-391 (A)(6) and subsection (b) read:
A person shall not drive or be in actual physical control of any moving vehicle while
...there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.
The above is clarified in subsection (b) in part:
such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely.
Being "incapable of driving safely" is a key part of marijuana DUI cases. The State prosecutors must show that a person is unsafe to drive because they have used or consumed marijuana. Although it is likely that if someone uses a large amount of marijuana before driving that their driving skills may be affected, this is many times not the case after DUI arrest. Marijuana may have a strong odor after it is burned that may last for hours in a car or on a person's clothing or body. This evidence is frequently evidence of use and NOT EVIDENCE OF IMPAIRMENT.
House Bill 471-Georgia's revised implied consent warning-July 1, 2019-Only your refusal to submit to blood or urine tests may be admissible against you at trial
As of July 1, 2019, Georgia will have a new implied consent notice regarding the test officers ask for after a DUI arrest. .
When officers arrest someone for DUI, they typically proceed to administer roadside field sobriety tests (HGN test, Walk and Turn, One Leg Stand, Portable Breath Test) and if an arrest is made, request a state-administered test to determine a blood alcohol level or the presence of other drugs. Because of the Georgia Supreme Court's holding in Elliott v. State, 824S.E.2d 265 (2019), decided on February 18, 2019, a person's refusal to submit to a breath test cannot be offered into evidence against them at trial. It is important to note that this is not the "portable breath test" that is usually given as part of the field sobriety tests on the side of the road. The portable breath test or "breathalyzer" is only admissible in court to the extent that the officer obtains a positive or negative reading. The portable breath test does indicate a numerical result, but that blood alcohol number/result is not admissible in court.
Refusal to take tests offered at trial
Formally, the Intoxilyzer 9000 (breath testing instrument that is usually administered at the jail or police station) was utilized to get an admissible state breath test after an arrest was made. If the results are .08 grams or more, that is per se DUI in the State of Georgia. Because of the holding in the Elliott case and other cases, the Supreme Court has decided that Georgians do have a Constitutional right to refuse a breath test and that refusal cannot be offered into evidence at their DUI trial. People refuse chemical tests in DUI cases for a variety of reasons-i.e. scared to have a needle stuck in their arm inside of the jail, don't understand what implied consent means (because they are not lawyers and are hearing this warning for the first time ever), etc. The problem is that a jury may infer that the reason someone refused a test is "because they were drunk."
Now, because of the rulings in recent cases, police officers in Georgia are no longer requesting breath tests after they make DUI arrests. The officers either request a blood or urine test. If you refuse either of those tests, your refusal to submit may be offered into evidence against you at trial.
A common question in DUI cases is: "Can I use a first offender plea to a DUI?'
The answer to that question is "No." The provision that specifically forbids a first offender plea to a DUI charge in Georgia is included in O.C.G.A. 42-8-60(j)(10) listed at the very bottom below:
(j) The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for:
(1) A serious violent felony as such term is defined in Code Section 17-10-6.1;
(2) A sexual offense as such term is defined in Code Section 17-10-6.2;
(3) Trafficking of persons for labor or sexual servitude as prohibited by Code Section 16-5-46;
(4) Neglecting disabled adults, elder persons, or residents as prohibited by Code Section 16-5-101;
(5) Exploitation and intimidation of disabled adults, elder persons, and residents as prohibited by Code Section 16-5-102;
(6) Sexual exploitation of a minor as prohibited by Code Section 16-12-100;
(7) Electronically furnishing obscene material to a minor as prohibited by Code Section 16-12-100.1;
(8) Computer pornography and child exploitation as prohibited by Code Section 16-12-100.2;
(9) (A) Any of the following offenses when such offense is committed against a law enforcement officer while such officer is engaged in the performance of his or her official duties:
(i) Aggravated assault in violation of Code Section 16-5-21;
(ii) Aggravated battery in violation of Code Section 16-5-24; or
(iii) Obstruction of a law enforcement officer in violation of subsection (b) of Code Section 16-10-24, if such violation results in serious physical harm or injury to such officer.
(B) As used in this paragraph, the term "law enforcement officer" means:
(i) A peace officer as such term is defined in paragraph (8) of Code Section 35-8-2;
(ii) A law enforcement officer of the United States government;
(iii) An individual employed as a campus police officer or school security officer;
(iv) A conservation ranger; and
(v) A jail officer employed at a county or municipal jail; or
(10) Driving under the influence as prohibited by Code Section 40-6-391.
**SEE UPDATE (10/21/2019):The data in your car or truck's airbag control module (ACM) may be used against you
Conditional Discharge and Pre-trial diversion for Possession of Marijuana in Georgia
Under Georgia law O.C.G.A. 16-13-2, a person who is found to be in possession of less than one ounce of marijuana may be eligible to have the charge dismissed without an adjudication of guilt, or no conviction for possession of drugs. The statute says:
"the court may without entering a judgment of guilt and with the consent of such person defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require, preferably terms which require the person to undergo a comprehensive rehabilitation program, including, if necessary, medical treatment, not to exceed three years, designed to acquaint him with the ill effects of drug abuse and to provide him with knowledge of the gains and benefits which can be achieved by being a good member of society. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed accordingly. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this Code section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this Code section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this Code section may occur only once with respect to any person."
Pre-trial diversion is a different statute and method of disposing of possession cases without the use of the conditional discharge statute. Under O.C.G.A. 15-18-80, prosecutors are authorized to create and administer a Pretrial Intervention and Diversion Programs. The prosecutor may require the defendant to have a drug and alcohol evaluation, complete community service, and other requirements such as payment of a fee to be in the program.
One important factor and decision in deciding whether or not to enter into a pre-trial diversion program is: "What will be the final result or disposition of the case?"
The goal is to have the possession charges dismissed at the conclusion of the pre-trial diversion program. It is important to obtain a copy of the court's Order dismissing the charges upon completion of the program. Your case may also be eligible for expungement or record restriction if the case is dismissed after completion of the program. This is important because access to an individual's criminal history record information, including any fingerprints or photographs of the individual taken in conjunction with the arrest, shall be restricted under certain provisions of the record restriction statute.
Case summary and example of the use of the pre-trial diversion statute
Client was in an area of town that he is unfamiliar with and pulls into a shopping center parking lot to check his Google Maps to determine where he is and find the directions to his hotel. Once client has plugs the directions into his phone and leaves the parking lot, he is pulled over for no headlights. Officer states that he smells marijuana and asks client if there is any marijuana in the vehicle. Client tells the officer that there is a small amount of marijuana located inside of a pill bottle in the back seat of the car. Client is arrested for possession of marijuana less than an ounce and a headlight violation. At court, client's attorney is able to negotiate client's entry into the pre-trial program and the prosecutor requires: a drug and alcohol evaluation, 20 hours of community service, and payment of a fee in the amount of $250 to be included in the program. Client completed all of the terms of the pre-trial diversion program and his attorney requests a copy of the Order dismissing the charges. Because client completed all of the terms he is eligible for record restriction/many times referred to as expungement of his drug possession charges. This is helpful so that future employers or other entities will not see a drug possession charge on his record during criminal background checks. This case was handled by Attorney Bill Hardman.
Blog posts by Bill Hardman at DUI Blog and Case Results