Filed Under: Atlanta DUI Penalties
Whether you are pulled over and arrested in the Atlanta Metro Area, your case will have its initial arraignment the Monday morning after your arrest. Arraignment is the beginning of the criminal legal process. In addition, there is a civil case pending against you by the Georgia Department of Driver Services (DDS). the Howard Law Group can appear for you on Monday morning so you can return to work, school, or your other commitments. When we appear for you, it does not violate your bond or the terms of your release. It is as if you appeared yourself. Every Monday morning, someone from our office appears in Atlanta Municipal Court.
The Georgia Arrest Process:
A Georgia DUI arrest begins with a stop of some nature by a law enforcement officer. Keep in mind that you have constitutional rights. An officer cannot just initiate a traffic stop on your vehicle for a random or arbitrary reason. There needs to be what is called a reasonable and articulable suspicion that there is some kind of wrongdoing. In effect, the Atlanta Police cannot just pull you over for any reason. There has to be a legitimate reason that you are being pulled over in order for you to be prosecuted.
Suspicion is established when an officer allegedly observes a traffic offense such as speeding, speeding, failure to maintain lane, following too closely, aggressive driving, weaving within a lane, a stop sign violation or any form of reckless driving. These offenses give the officer a basis to pull over the vehicle. In addition, many cases also begin when there is an at fault accident. Causing an accident is also sufficient cause for a DUI investigation to begin.
Also, many arrests occur at a roadside checkpoint commonly called a DUI roadblock. However, the police cannot simply implement a roadblock any time or any place. A roadblock is an exception to the 4th amendment of the United States Constitution. As an exception, that means the general rule would not allow for drivers to be stopped without sufficient cause. As a result, the exception should be narrowly drawn to protect the rights of drivers. An experienced Atlanta DUI Attorney will know how to challenge the legality of the roadblock that resulted in your arrest. We never assume that a roadside checkpoint was legally implemented.
Probable Cause is the standard necessary to arrest a person. The standard is basically whether there is sufficient evidence that a crime likely occurred. It is not evidence beyond a reasonable doubt, which is the standard to find a person guilty of a crime. To establish probable cause to arrest, police officers are trained to look for some particular manifestations of DUI which may include:
• The odor of alcohol
•An admission of drinking
•Bloodshot, red, watery or glassy eyes
•A flushed face
•Difficulty retrieving wallet and/or license
•A disheveled appearance
•Slow to respond to questions
•Confusion or difficulty following directions
•Difficulty exiting the vehicle
•Leaning against a vehicle for support
•Unsteadiness on feet
•Swaying or trembling
Field Sobriety Testing is commonly used to establish probable cause to arrest. These tests were created by the National Highway Safety Traffic Administration (NHTSA). To help police officers determine probable cause to arrest people suspected of DUI.
NHTSA claims that these tests show a correlation to alcohol impairment. However, not of their studies are peer reviewed, and they commonly re-write their student manual without the advent of new studies to back-up their new procedures. One such example just occurred in the 2013 revised student manual. NHTSA has taken out all the references to how the testing can be ineffective on obese or elderly people. They simply took out the language without any reference to any new peer-reviewed studies validating their new procedures.
The standardized tests are:
HGN: Where an officer does a series of tests involving a suspect following a stimulus. The officer is looking for an involuntary “nystagmus” (a jerking movement) in the eyeball. However, some people are poor candidates for an HGN test because they have natural nystagmus or have had concussions or other head and eye conditions can make the test non-reliable.
Walk and Turn: This test consists of nine heel-to-step steps along a line, a turn, and nine heel-to-toe steps backward. Police officers will try to observe “clues” consistent with intoxication. Some common clues DUI officers look for are starting before you are told to start, or walking normally instead of making heel-to-toe steps. Other clues include raising your arms for balance, stepping off the line, making an improper turn, taking an incorrect number of steps, and failing to complete the test.
One Leg Stand: The final standardized field sobriety test used to determine DUI is the one leg stand. This test requires you to stand on one foot for 30 seconds with your arms at your sides. The officer is looking for 4 clues including, putting your foot down, raising your arms for balance, swaying, and hopping.
DUI officers occasionally ask drivers to partake in other non-standardized tests like saying the alphabet or counting to a certain number in their head. These tests have not been validated to show any indication that a driver is under the influence. A DUI officer often has a video camera equipped in his patrol car to record the driver completing the field sobriety tests. In many instances, these tapes can help the defense if someone does a good job and appears to walk and speak normally on the tape. Our Atlanta DUI attorneys are trained in dissecting an officer’s methods in conducting the field sobriety tests. In many instances, these tests are not done according to the prescribed methods. If the prescribed methods aren’t used, then an we can prove results are not valid.
In addition to standardized field sobriety testing (and other field tests) is the roadside alco-sensor test. This is the most commonly misunderstood test and therefore warrants discussion. The alco-sensor test is not the State-administered test. The alco-sensor is a roadside screening test not deemed to be particularly accurate. As a result, the government cannot use the numeric result of the test. The arresting officer can only state that the test was positive or negative for the presence of alcohol.
However, many people confuse the roadside test with the official breath test. As a result, some people will refuse the official test because they already believe they have cooperated and provided a sample before being arrested. Those same people are shocked when they learn that they are accused of refusing the breath test.
No one properly explains to suspected DUI drivers the difference between the road-side test and the intoxilzer 5000 test at the station. Theimplied consent card does not explain it, and it is legitimately confusing to people being asked to make an immediate decision on the side of the road. This is completely unfair to people. It would be so easy for the implied consent card to simply start by saying that if you already submitted a test on the side of the road, that test was a preliminary breath screen and not the official test. The following are your rights related to a request to take an official chemical test.
That simple explanation would eliminate refusals by confused people who simply feel they have already cooperated. It would also be fundamentally fairer to the accused, especially in light of the enhanced drivers licenses consequences for a refusal.
The request for a chemical test:
Once an Atlanta police officer or Georgia State Patrol Officer believes there is probable cause to arrest, then he is required to read a person their implied consent rights outlining a person’s right and duties under Georgia Law. Under our laws, a driver is required to submit to a test of their breath, blood, or urine when arrested for DUI. If the testing is refused, then the State will suspend his Georgia driver’s license or privilege to drive on our roads if the driver holds an out-of-state license.
That is why driving is technically not a right but a privilege that can be taken if a person is afford due process of law. The Georgia Department of Drivers Services will suspend any driver who refuses a chemical test, if they have been properly pulled over for DUI and read their implied consent right. The suspension for refusal is a one-year license suspension. Refusal suspensions are considered a “hard suspension” because the drivers are not afforded a limited or restricted permit to drive.
In the alternative, when a driver takes a breath test, the potential driver’s penalty is not a severe. In that situation, in a first offense the driver will qualify for a permit to drive in the event they are administratively suspended.
When our clients submit to a breath test, there are many potential challenges in their cases that are unavailable in refusal situations. For example, the officer is supposed to observe the driver for 20 minutes continuously prior to testing. The machine must be calibrated and inspected quarterly. Two samples must be given, and both samples must be within perimeters. (meaning within .02 of each other). The printout of your intoxilyzer 5000 test will provide the deals of the testing in your case.
Once you take the State’s test, you have the right to ask for an independent test by a provider of your own choosing (within reason) and at your own expense. If the officer fails to reasonably accommodate your request for an independent test, you can have the results of the state administered test suppressed from the trial in your case. You have to pay for your own independent test, but the officer must accommodate you in a reasonable manner For example, an officer must take you to an ATM machine to get money to pay for the test. The officer cannot select the medical provider or hospital, but your selection must also be reasonable insofar as time commitment and location.
Refusals and the consequences of refusing the State’s test:
Refusal can potentially result in the worst of all DUI outcomes. It’s counter intuitive because many people tell me they refused to avoid providing evidence against themselves. People certainly have a 5th Amendment right against self-incrimination, and a 4th Amendment right against unreasonable search and seizure.
However, those criminal rights have little bearing on a person’s driver’s license. Driving in a privilege. As a result, it can be taken away without proof beyond a reasonable doubt. You have the right to due process of law and a hearing. However, the standard of proof at ALS hearings in the civil preponderance of evidence standard. As a result, you license can be taken before your proven guilty beyond a reasonable doubt.
At the time of your arrest, the police officer will likely take your drivers license and give you a DDS-1205 form. This form acts as a 30-day permit during your appellate procedure. What confuses people is that they are giving a court date but not an license appeal date. The criminal process happens to anyone arrested whether or not they choose to participate. It will happen no matter what you do.
However, the civil license appeal only happens if you request the hearing and pay the $150 filing fee. Otherwise, you will have you license suspended on the 31st day after you arrest. So, it’s very important to have your attorney file the appeal as soon as possible. Your case will not defend itself. Your best Atlanta DUI defense begins here!
Another unfortunate situation in refusal cases involves involuntary blood testing. The Georgia State Patrol “Night Hawks” routinely seek warrants to force a person to provide a sample after they have refused testing. These forced blood draws are becoming more and more common. It is my belief that these blood warrants are completely unconstitutional and disgusting. To force a person to provide a sample in misdemeanor cases is completely conscionable. For more information, I wrote a strongly worded article on forced blood draws.
The abridged version of the article is that in the case of a forced blood draw, you get the worst of both worlds. The State gets to use the results of you blood test in the criminal case, and you get all the same drivers consequences for the refusal. You are still facing a 12-month hard suspension of your license without a permit. Keep in mind, these forced blood draws are being more and more popular throughout Georgia.
If you or someone you know has been arrested on a Georgia DUI, contact us asap so we can start working on your defense.