DUI Case Law and Updates
William S. Hardman, Jr.
Attorney at Law
Attorney at Law
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.
A very brief snapshot of events that typically occur after being pulled over for DUI:
Reasonable Articulable Suspicion for the Stop in your DUI Case
The first issue in most DUI cases is whether or not the officer had a legal reason to stop the vehicle or person in question. The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures. The officer must have reasonable suspicion for the stop. Otherwise the stop violates your Fourth Amendment rights. Officers usually base their decision to conduct a traffic stop because of an alleged violation of the law. Some common reasons for traffic stops in DUI cases are failure to maintain lane, failure to dim headlights, not using a turn signal, improper lane change, failure to obey a traffic control device. There are multiple legal challenges to "the stop" itself.
Field Sobriety Tests
Once you have been stopped by the police, you may be asked to submit to field sobriety tests. The National Highway Traffic Safety Administration (NHTSA) sponsored the research which led to the development of the roadside tests that are supposed to indicate whether or not someone is under the influence of alcohol or drugs. THESE ARE VOLUNTARY TESTS. You are not required to submit to any field sobriety tests. The three most common field sobriety tests are the Horizontal-Gaze Nystagmus Test, the Walk and Turn Test, and the One-Leg Stand Test. Officers are looking for certain "clues of impairment" which are usually unknown to the person taking the test. This is the reason that many people are surprised to see in a police report that the officer claims that they have failed some or all of the field sobriety tests. The roadside Portable Breath Test (PBT) is also a field sobriety test and it is not admissible in court as to the blood-alcohol reading that it provides. It is only admissible as to the positive or negative reading for the presence of alcohol. There are multiple potential flaws with field sobriety tests that may need to be challenged in a DUI case.
State Administered Tests of Blood, Breath and Urine
After someone is placed under arrest for DUI, the arresting officer may read the Georgia Implied Consent law to the person and ask them to submit to a State-administered chemical test of their blood, breath or urine. This test is also voluntary! Although the test is voluntary, a driver may be subject to a one-year suspension of his/her driving privileges in the State of Georgia for simply refusing to submit to the requested State-administered chemical test under the Georgia Implied Consent Law. Whether or not a person has voluntarily submitted to a State-administered chemical test is based on a review of the totality of the circumstances of the events that occur prior to/during the submission to any test. It is important that you raise any potential legal challenges to any test results. The breath test is the most common State-administered test. As stated above, the "breathalyzer" that you take on the side of the road is not admissible as to the blood-alcohol amount. Because the breathalyzer is not admissible, arresting officers may ask someone who has already been arrested for DUI to submit to a second breath test on the Intoxilyzer 5000 or 9000. The arresting officer may also ask for a blood test. In my experience, I believe that the arresting officer will ask for a blood test when the person has "blown" a low blood-alcohol level on the breathalyzer. An officer may be requesting a blood test because he/she believes that the person is under the influence of drugs that did not show up on the breathalyzer test. There are also multiple challenges to the machines that are giving the blood alcohol readings (Intoxilyzer 5000 or 9000). Errors in the administration of these tests or failure to follow the training manuals and procedures can produce completely inaccurate readings. A prime example of this is mouth alcohol. If someone burps, belches or vomits prior to submitting to these tests, their blood alcohol readings may be completely inaccurate.
Beware of the EtG Test for alcohol if you are on probation and subject to random alcohol and drugs screens
The Ethyl Glucuronide (EtG) Test:
This is a test that probation officers frequently administer to test for the presence of alcohol in the systems of people who are on probation. Ethyl Glucuronide is a metabolite (which is formed as part of the natural biochemical process of degrading and eliminating the compounds) of ethanol which is the type of alcohol in alcoholic beverages such as beer, wine or liquor. Even if a person had consumed enough alcohol so that their blood alcohol level would be above .08% (the legal limit to drive), their blood alcohol level would typically be 0% the next morning assuming that they did not consume a very large amount of alcohol the night before. The Etg Test is also known as the "80 Hour Test" because it can detect the presence of the alcohol metabolite up to 80 hours after a person has consumed any alcohol. 80 hours is approximately 3.5 days. Chronic abusers of alcohol may have a positive test result closer to the 80 hour mark than a person who consumes only a drink or two. EtG concentrations are measured in nanograms per millileter (ng/mL). Different testing labs can require a different ng/mL threshold level to test positive for alcohol (100/250/500 ng/mL). Other sources of alcohol such as mouthwash or medications containing alcohol may also indicate a positive result on the EtG Test if a lower threshold is used at the lab. CONCLUSION: If a person is on probation and is subject to random drug and alcohol screens, this test can indicate that they have consumed alcohol DAYS later when tested by their probation officer. Many people will falsely assume that if they only have a couple of beers on Saturday and don't have to submit to a drug test until Tuesday of the next week, they are safe from failing any alcohol test. This is not the case. This is another reason to make sure that any person who is subject to random alcohol screens make sure they do not consume any alcohol while on probation. If a person fails their alcohol screen while on probation, the probation officer may file a petition to revoke probation, a court hearing may be set on the issue, and a judge may revoke probation and send the probationer to jail for a certain period or for the remainder of the original sentence.
June 23, 2015. Client was found beside a car that had left the roadway and struck an embankment. Officer arrived later in the evening and asked client if he had consumed any alcohol. Client stated that he had consumed several beers earlier in the evening. Client did not perform any field sobriety tests due to the fact that he had been in the accident earlier. He was charge with DUI and failure to obey a traffic control device. Client was asked to submit to State administered chemical test of his breath and refused. Due to lack of field sobriety tests and no breath or blood test to indicate client was under the influence, Attorney was able to negotiate a plea where the DUI and failure to obey traffic control device were dismissed. Client entered a plea to reckless driving with no probation and a fine. This case was handled by Bill Hardman.
If you have been arrested in Georgia for a DUI, there are certain measures that you need to take before you go court. One of the most important mitigation techniques in a Georgia DUI case is to complete some or all of the statutory requirements that depend on the facts in your case. Examples of mitigation include, DUI School, Drug Alcohol
A motion hearing is an important phase in the defense of a Georgia DUI case. Your attorney may file pretrial motions such as a Motion To Suppress or a Motion in Limine asking the court to decide what evidence is admissible against you in a jury trial or bench trial.
There are many rules of evidence which may exclude statements made by the person arrested, performance on field sobriety tests and chemical test results of your blood, breath or urine. The first step in this process is that your lawyer should file certain motions with the court and prosecutor to obtain the State's evidence against you in the case. These motions are called discovery motions. After properly filing discovery motions, your attorney should be able to obtain all of the State's evidence against you. A second and crucial method of obtaining all the facts in your case is through the Georgia Open Records Act. O.C.G.A. 50-18-70. This statute may allow you to obtain many types of information such as information about the officer that arrested you or the Roadblock Policy that authorized a roadblock where you were stopped.
The burden of proof at a motion to suppress hearing in on the State. The State must show that all of the evidence that has been obtained against you was legally obtained. If the evidence was obtained illegally, then it must be suppressed from the trial of your case. For a history of the United States Supreme Court case that made evidence obtained in violation of your Fourth Amendment rights read about Mapp v. Ohio, 367 U.S. 643 (1961).
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Driving on a suspended license in the State of Georgia carries a sentence of jail time and a further suspension of your driver's license. It is important that you have an experienced Georgia attorney in court with you if you have been charged with the offense of driving on a suspended or revoked license. The complete Georgia statute is below:
§ 40-5-121. Driving while license suspended or revoked
(a) Except when a license has been revoked under Code Section 40-5-58 as a habitual violator, any person who drives a motor vehicle on any public highway of this state without being licensed as required by subsection (a) of Code Section 40-5-20 or at a time when his or her privilege to so drive is suspended, disqualified, or revoked shall be guilty of a misdemeanor for a first conviction thereof and, upon a first conviction thereof or plea of nolo contendere within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall be fingerprinted and shall be punished by imprisonment for not less than two days nor more than 12 months, and there may be imposed in addition thereto a fine of not less than $500.00 nor more than $1,000.00. Such fingerprints, taken upon conviction, shall be forwarded to the Georgia Crime Information Center where an identification number shall be assigned to the individual for the purpose of tracking any future violations by the same offender. For the second and third conviction within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, such person shall be guilty of a high and aggravated misdemeanor and shall be punished by imprisonment for not less than ten days nor more than 12 months, and there may be imposed in addition thereto a fine of not less than $1,000.00 nor more than $2,500.00. For the fourth or subsequent conviction within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, such person shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than five years, and there may be imposed in addition thereto a fine of not less than $2,500.00 nor more than $5,000.00.
(b) (1) The department, upon receiving a record of the conviction of any person under this Code section upon a charge of driving a vehicle while the license of such person was suspended, disqualified, or revoked, including suspensions under subsection (f) of Code Section 40-5-75, shall extend the period of suspension or disqualification by six months. Upon the expiration of six months from the date on which the suspension or disqualification is extended and payment of the applicable reinstatement fee, the department shall reinstate the license. The reinstatement fee for a first such conviction within a five-year period shall be $210.00 or $200.00 if paid by mail. The reinstatement fee for a second such conviction within a five-year period shall be $310.00 or $300.00 if paid by mail. The reinstatement fee for a third or subsequent such conviction within a five-year period shall be $410.00 or $400.00 if paid by mail.
(2) The court shall be required to confiscate the license, if applicable, and attach it to the uniform citation and forward it to the department within ten days of conviction. The period of suspension or disqualification provided for in this Code section shall begin on the date the person is convicted of violating this Code section.
(c) For purposes of pleading nolo contendere, only one nolo contendere plea will be accepted to a charge of driving without being licensed or with a suspended or disqualified license within a five-year period as measured from date of arrest to date of arrest. All other nolo contendere pleas in this period will be considered convictions. For the purpose of imposing a sentence under this subsection, a plea of nolo contendere shall constitute a conviction. There shall be no limited driving permit available for a suspension or disqualification under this Code section.
(d) Notwithstanding the limits set forth in Code Section 40-5-124 and in any municipal charter, any municipal court of any municipality shall be authorized to impose the punishment for a misdemeanor or misdemeanor of a high and aggravated nature as applicable and provided for in this Code section upon a conviction of a nonfelony charge of violating this Code section or upon conviction of violating any ordinance adopting the provisions of this Code section.