DUI Case Law and Updates
William S. Hardman, Jr.
Attorney at Law
Attorney at Law
Many people accused of DUI in the State or Georgia will ask, "Can I enter a Nolo plea in my DUI case?"
The short answer is "YES" if, and only if, the court is willing to accept the plea after all the defendant meets all of the statutory requirements.
The Georgia Code Section that explains the requirements a defendant must meet to enter a nolo plea to a DUI case in Georgia is O.C.G.A. 40-6-391.1. You can read the entire statute here:
One reason that a defendant may request that the court accept his or her nolo plea in a DUI or any criminal case is that the defendant would like to dispose of his or her criminal case and is willing to accept the court's punishment even if the defendant does not believe that they are guilty of the crimes as charged. Further, in any case that involves an accident where another party's property is damaged or another party is injured, the injured party will generally have 2 years to file a tort action (personal injury or civil case) against the defendant for damages money and costs that may be attributed to the defendant. Even if a person is charged in a criminal case related to any such accident, the defendant may not believe he or she is the cause the accident. Because the defendant's criminal case is likely to come to court before any such tort action, the defendant may elect to enter a nolo plea to dispose of the criminal case and accept such punishment without entering a guilty plea to the charges against him/her. Entering a guilty plea in the criminal case is tantamount to an admission of guilt and may be used in a later civil case against the defendant to show that he/she was liable for the cause of the damage to property or injuries to the other party.
Penalties after a nolo plea to DUI
One KEY CONSIDERATION a defendant should consider before entering a nolo plea to DUI in Georgia is that the Department of Driver's Services treats a nolo plea the same as a guilty plea as far as driver's licenses suspensions are concerned. If you enter a nolo plea you will be subject to the same driver's license suspensions as you would if you entered a guilty plea in the case. The court may also impose the same penalties as they would normally impose if the defendant had plead guilty in the case.
In summary, if you are considering entering a plea to a Georgia DUI case, you need to speak with a Georgia attorney who is familiar with the DUI laws and who can advise you of whether or not such a plea may or may not benefit you in your case.
Client was charged with failure to maintain lane and DUI less safe. Client was sitting in her car during a large storm on the side of the road in Fulton County when officers approached to ask why she was stopped on the side of the roadway. Officers claimed that there had been a report of driver failing to maintain lane earlier in the evening. Client refused to perform the voluntary field sobriety evaluations due to the fact that it was pouring rain. Officers claimed they noticed an odor of an alcoholic beverage. There were no other manifestations of impairment shown in the arrest video of client. Attorney was told by the police department that the officer was no longer employed in Fulton County. After obtaining the officer's training and employment records, attorney determined that the officer was employed in Fulton County and in the same position as he was on the night of arrest. Through his investigation attorney determined that the only offer of proof that client had been driving erratically at any time was the statement of a third party witness. No law enforcement had witnessed client driving at any time. The elements of the offense of driving under the influence in Georgia is that the State must prove beyond a reasonable doubt that the accused was less safe (or had a blood alcohol level of .08 grams or more) to drive because of their consumption of alcohol and in actual physical control of a moving vehicle within three hours after such consumption. After a pre-trial conference with the prosecutor to explain all of the difficulties in proving the State's case, client's charge was reduced to one count of reckless driving and the failure to maintain lane charge was dismissed. Once the fine is paid and the other conditions of the sentence are completed client's probation terminates and the case is over. This case was handled by Attorney Bill Hardman.
If you have been arrested for a probation violation in Gwinnett County, you may be arrested at the probation office or picked up by officers after a warrant has been issued for your arrest. Once your probation has been revoked you will remain in the Gwinnett County jail until you have the opportunity to have a probation revocation hearing.
Probation Revocation Hearing
Your probation revocation hearing may come up quickly or may take a week or so to be heard. It depends on what day you are arrested or taken into custody for violating your probation. Your probation hearing will consist of essentially two parts. The first step is to determine whether or not you actually violated your probation. A common example that leads to probation revocation is for failing a drug or alcohol test. See this link for information on probation alcohol testing (LINK).
If you fail a drug or alcohol test then you are entitled to an evidentiary hearing on the evidence and whether it is accurate or inaccurate. If you have been arrested for a crime, then you would be entitled to the same evidentiary hearing as to whether or not you actually committed a crime in violation of the terms of your probation.
***A key factor to determine at this point is whether or not it is beneficial to you to challenge the evidence that you have actually violated your probation. If you challenge the evidence, you will remain in jail until a further point when you have a hearing on the evidence as to whether or not you violated your probation.
It is important for your attorney to contact your probation officer and determine what their recommendation is in your case. For example: If you were sentenced to two years probation on your original charges and your probation officer is recommending to "revoke the balance" then you may absolutely want to have a hearing on the evidence in your revocation case because you may serve the rest of your original sentence in jail if the Judge agrees with the probation officer and the prosecutor's side of the case. ***It is important to remember that while you are on any form of probation, that probation has the potential to be revoked. If you are found in violation of any terms of your probation, you may be sent to jail for all the remaining time that you were going to be on probation.
If your attorney is able to negotiate an agreement with the prosecutor and the probation officer before your probation revocation hearing then it may be best to stipulate to the violation (admission that you did in fact violate your probation) so that you may potentially be released immediately or be required to serve as little time as possible in jail. Probation revocation hearings are usually very short so all of the work must be done by you or your attorney before the hearing. The Judge is the person who ultimately decides what to do in your case but it is crucial to have some sort of pre-hearing negotiation between all parties so that the best result can be obtained.
Client was stopped by the police for failing to maintain lane while proceeding down the onramp to I-85 South. After making discovery demands to the State and receiving the video evidence, I determined that there was reasonable articulable suspicion for the traffic stop. Client explained that the reason for failure to maintain lane was due to the fact that he was reading directions from his phone. (**Note: reading or looking at a cell phone is an extremely common reason for weaving resulting in traffic stops) Client exhibited 4 out of 6 clues on the HGN Test: lack of smooth pursuit and distinct and sustained nystagmus at maximum deviation. Client exhibited 4 out of 8 clues on the Walk and Turn Test: stopped while walking, missed heel-to-toe on the first and second sets of 9 steps, and completed an improper turn. Client exhibited 1 out of 4 clues on the Walk and Turn Test: raised arms to balance. Client also exhibited a positive result on the Alcosensor device (field/roadside breath test). On the state adminsitered breath test (Intoxilyzer 9000) client blew a .08. Prior to jury trial and on attorney's advice client completed all requirements for a first in lifetime DUI. After meeting with the solicitor and discussing client's criminal and work history combined with all mitigation efforts, client's charge was reduced from DUI to reckless driving keeping him from having a DUI conviction on his permanent criminal history and avoiding a suspension of his driver's license. This case was handled by Bill Hardman.
Client was charged with shoplifting after taking certain merchandise from a store where he was also employed. After defendant's attorney met with the judge and prosecutor to discuss all of the facts and circumstances surrounding the case, client entered a negotiated plea to a city ordinance violation unrelated to theft. Client was able to pay his fine immediately based on the cash bond he posted and all probation was able to terminate immediately.
An important aspect of this type of case is that if you are able to close a criminal case with a dismissal, not guilty verdict at trial or a plea to a city ordinance violation, it will not appear on your criminal history. Employers frequently perform background checks before hiring now so it is important to challenge any criminal charge that may later appear on your record. In many cases the real "costs" involved in a misdemeanor criminal case are the potential ramifications associated with criminal background checks by employers that may cost someone a job opportunity. A fine and a year of probation are not really all of the "costs" in these types of cases. A criminal background check in Georgia can definitely have a negative effect on your potential employment.
Equal Protection Challenge
The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. Generally, whether or not an equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. A Georgia defendant made an equal protection challenge in the case of Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999) after he was arrested for a marijuana DUI in Gwinnett County. You can read the entire case here: Love v. State (1999). This case was a constitutional challenge to the Georgia marijuana DUI law and the argument was that the Georgia law singles out drivers with low levels of marijuana metabolites in their systems for punishment while other drivers may not be punished under the statute if they legally had marijuana in their system and were otherwise unimpaired. For example, if a person legally had marijuana in their system (had a medical marijuana prescription from another state or presently had consumed marijuana in a state where it is now legal under state law to consume marijuana), they would not be subject to a charge of DUI marijuana unless they were rendered incapable of driving safely because they had consumed marijuana. If a Georgia resident was arrested for DUI and had marijuana in his/her system (the same as the driver with a medical marijuana prescription or otherwise) he/she would be subject to prosecution for a DUI marijuana in Georgia. Thus, as stated above, Georgia law grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. This different treatment of two different groups of people is why the equal protection challenge was made in the case.
Making the equal Protection Challenge
The Georgia marijuana law was attacked for being unconstitutional. When a statute is attacked for being unconstitutional, the statute is presumed to be constitutional. Different constitutional challenges are examined by the courts using different types of tests. An equal protection challenge is examined under the "rational relationship test." The question that has to be answered under the rational relationship test is:
The defendant in Love v. State succeeded in showing that Georgia statute on marijuana DUI cases was unconstitutional by showing that the statute violated the equal protection clause by "arbitrarily changing the burden of proof of guilt." The two different scenarios are:
The Court held that there was no legislative distinction between users of legal and illegal marijuana as to the purpose of the statute; public safety. Therefore, the Court held that the statute was arbitrarily drawn and constituted an unconstitutional denial of equal protection under the law.
What this Case Means and How It Applies
The holding in Love v. State is significant because it means that the State must prove that a driver with marijuana in his/her system must be rendered incapable of driving safely because of the marijuana he/she had consumed. The fact that there is a positive drug test for marijuana is not the end of the inquiry in a marijuana DUI case. There must be other evidence to prove guilt in a marijuana DUI case: driving unsafe, physical manifestations of impairment, or poor performance on field sobriety tests. If the prosecution is unable to show any evidence of impairment, a person should not be found guilty of a marijuana DUI in the State of Georgia.
Atlanta Municipal Court: Client cited for Failure to Maintain lane after striking another vehicle in the City of Atlanta. Because client was under 21 years of age different penalties potentially applied. After a successful negotiation with the prosecutor and evidence of insurance coverage of any damage, client's case was closed with only a fine. No defensive driving courses, no pre-trial traffic intervention courses or community service and no probation. This case was handled by Bill Hardman. www.hardmanlawyer.com