DUI Case Law and Updates
William S. Hardman, Jr.
Attorney at Law
Attorney at Law
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 Once your probation has been revoked you will remain in the Gwinnett County jail until you have the opportunity to have a probation revocation hearing.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
DUI Case Results-Prescription Drug DUI in State Court, Failure to Maintain Lane and striking a pedestrian
Our client was accused of DUI Prescription Drugs (Klonopin) and failure to maintain lane. Client was traveling home in the early hours of the morning after a night at a friend's house. While driving through a sharp curb in Hall County, he struck a pedestrian with the passenger side mirror of his vehicle. He called for an ambulance while he waited with the pedestrian. When officers arrived, they questioned client as to whether he had consumed any drugs or alcohol that morning. Being completely honest with the officer, client informed the officer that he had taken a tablet of Klonopin or clonozepam which is a sedative, anticonvulsant and muscle relaxant on the night before the accident. Client performed the HGN eye test and allegedly exhibited 6 out of 6 possible clues on the test. The officer requested a blood test under the Georgia Implied Consent law and the client submitted to a blood test. Client's blood test results showed that Klonopin was present in his blood at the time of the accident.
After researching Klonopin, I discovered that my client's level of Klonopin was at the very bottom end of the therapeutical level of the drug. The therapeutical range for a drug is the amount of the drug that should be in a person's system if they are taking the medication as prescribed by a doctor. This means that it was likely that the drug was present in client's system but not likely at a level that would impair his driving ability.
Next, after more research on Klonopin, I determined that it may be unlikely that client would have exhibited 6 out of 6 clues on the HGN test because Klonopin is an anticonvulsant. The HGN test is a voluntary field sobriety test that looks for nystagmus which is an involuntary twitching or jerking of the eye. This is typically caused by the consumption of alcohol. Klonopin is one of the primary drugs that is used to treat nystagmus! That being said, it is unlikely that the Klonopin caused any nystagmus. Further, client's blood test was negative for any level of alcohol.
Last, was the review of why the pedestrian would have been on the shoulder of a busy road at such an early morning hour. After researching the background information, it was determined that the pedestrian has an illegal drug problem and may have been under the influence which explains why she was in the roadway at such an early hour.
After presenting the medical research and the potential problems with the pedestrian witness, client's DUI charge was reduced to reckless driving. Client entered a plea of no contest to the reckless driving charge. This case was handled by Bill Hardman.
The Teenage and Adult Driver Responsibility Act
If a person is convicted for certain driving offenses in the State of Georgia, then there is an automatic suspension of their Georgia Driver's license.
The age measurement is calculated by the date of conviction.
The offenses that trigger the automatic license suspensions for drivers who are under 21 years old are contained in O.C.G.A. 40-5-57.1:
Any 1st conviction of any of the above convictions will result in a six month license suspension plus reinstatement fees. A second conviction will result in a one year license suspension.
If the underage driver is convicted of DUI and his/her blood alcohol level was below .08, then their driver's license will be suspended for 6 months. If the blood alcohol level was equal to or above .08, then the period of suspension is one year.
**It is very important to remember that a plea of nolo or no contest to any of the above charges DOES NOT save your driver's license. A nolo or no contest plea is treated as a conviction for the purposes of this statute.