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.
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
Blog posts by Bill Hardman at DUI Blog and Case Results