Filed Under: Atlanta DUI Questions
The Howard Law Group has put together the most commonly asked questions about Atlanta DUI Laws.
1. I get more than one DUI ticket, Why?
In Atlanta, Driving Under the Influence laws cover several DUI offenses, so you may be charged with multiple counts of DUI; most commonly DUI “less safe” and DUI “per se.”
If you refused to submit to State-administered chemical testing or test results showed a blood alcohol concentration (BAC) below the legal limit, you may be charged with DUI “less safe.” “Less Safe” is defined as being not as safe to drive as if you had consumed no alcohol at all. DUI less safe requires a showing that you were under the influence of alcohol or drugs to the extent that you were less safe to drive.
DUI “per se” is charged when there is a State-administered test result showing a blood alcohol concentration at or above the legal limit. If you were charged with DUI per se, you may have also been charged with DUI less safe. These offenses are commonly charged together in the event a motion hearing leads to the test results being suppressed (prevented from being shown) prior to trial. If the test results are suppressed, there may be no other evidence showing your BAC was at or above the legal limit. However, the prosecution may still have sufficient evidence to proceed on a DUI less safe charge.
There are also separate DUI charges for DUI alcohol, DUI drugs, DUI toxic vapors, and DUI multiple substances. Ultimately, if you are charged with alternative counts of DUI, you can only be sentenced for one count of DUI from a DUI arrest. The alternative counts of DUI give the State different ways of prosecuting a person for the same DUI. It, however, is only one DUI.
2. I was on private property when I was arrested for DUI. Can the police do that?
Atlanta Georgia DUI laws do not distinguish between driving on public roads versus private property and apply anywhere in Georgia, whether on a street, highway, or private property.
Atlanta Georgia DUI laws apply to all moving motor vehicles. A vehicle has been defined to mean “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.”
This includes golf carts driven on or around golf courses or subdivisions as well as tractors. There is even precedent to prosecute someone for being under the influence of alcohol while in a power wheelchair. “Private Property” is not a valid defense to DUI in the State of Georgia.
3. The police never saw me drive the car. Can I get a DUI when they never saw me drive?
Proof that anyone actually saw you driving a motor vehicle is not required if there is sufficient circumstantial evidence that shows that you recently drove a vehicle.
If an officer arrives at the scene of an accident and you are the only person near the vehicle and the engine is warm, it is reasonable for the officer to assume that you had driven the vehicle prior to the accident. An officer can approach a parked or stopped vehicle to speak with you and if you are sleeping or sitting with the ignition or lights on that may be enough to establish that you were “in control” of the vehicle or had recently driven.
In Atlanta Georgia, circumstantial evidence carries the same weight as direct evidence if a jury decides the circumstantial evidence warrants belief. The comparative weight of direct and circumstantial evidence is a jury decision. In the end, there must be evidence of being in physical control of a motor vehicle, not eyewitness evidence.
4. Are DUIs from other states counted against me?
DUI convictions from other states can be used against you for enhancement in punishment. Under Georgia law, there are increased sentencing requirements for subsequent DUI convictions within certain periods such as 5 or 10 years.
The length of time between prior DUI convictions is calculated by the dates of arrest. Mandatory jail sentences, more community service hours, increased fine amounts, or DUI court may be required if you have prior DUI convictions in other states.
For the purposes of driving privileges, currently only prior convictions while having a Georgia license will result in increased driver’s license suspension periods. Those prior convictions can be in Georgia or when a Georgia driver is arrested and convicted for DUI in another state.
5. Do DUI charges come off my record in 5 years or 10 years?
If you are convicted of a Georgia DUI charge, the charge will never come off your criminal record. A record restriction is only available if you are found not guilty or if the charge is dismissed, and even then a DUI arrest can only be restricted if the charge was dismissed under certain circumstances.
A DUI suspension will age off your driving history (MVR) after 7 years. However, law enforcement and judicial agencies will have access to your lifetime driving history.
The same is true for regular traffic tickets. They age off a Georgia MVR after 7 years, but the State can see your lifetime driver’s history. So, never tell a prosecutor that you have no record just because it’s been 7 years since your last ticket. The prosecutor will see your entire MVR.
6. Why does it say I refused when I took a breath test?
A “refusal” refers to the State-administered test requested by the officer after you were placed under arrest. The officer must read an implied consent notice to you prior to requesting the test to inform you of the benefits and consequences of submitting or refusing to submit to a test.
You may have taken a preliminary breath test on a handheld Alco-Sensor device prior to your arrest. The officer uses this preliminary breath test to aid in his determination as to whether you are under the influence of alcohol to the extent that you are less safe to drive. It may also be used to eliminate alcohol as a possible factor if the officer is unsure whether you are under the influence of alcohol or drugs. The preliminary breath test result cannot be used as direct evidence of a specific blood alcohol concentration and the officer can only testify as to whether the result was positive or negative for alcohol.
Agreeing to take a breath test on a handheld Alco-Sensor device is not agreeing to submit to the State-administered breath test after arrest. The State-administered breath test is performed on an Intoxilyzer 5000 machine and is subject to regular maintenance requirements and quarterly inspections to ensure valid test results. If you agreed to breathe into an Alco-Sensor, but did not agree to submit to a breath test on the Intoxilyzer 5000, you refused the State-administered test.
Many people confuse taking the road-side Alco-Sensor with the official breath-test at the station. As a result, people think they have taken the “breath-test” and refuse additional testing because they think they have already complied with the requirement to take a test. This is the most common reason why people are charged with a refusal.
7. Why was I asked to perform multiple breath tests?
Many officers will ask you to blow into an Alco-Sensor to obtain a preliminary breath sample in order to assist him in determining whether you are an impaired driver. The officer may ask you to blow into the Alco-Sensor device multiple times or ask you to submit a sample at the beginning of the stop and then again after performing field sobriety evaluations. This is an attempt to determine whether alcohol is the impairing substance involved and whether the first test was a reliable result.
The Alco-Sensor is a roadside field sobriety test, but the numeric result of the Alco-Sensor cannot be used in court. The prosecutor can only ask if the result was positive or negative for the presence of alcohol.
After a suspect is arrested for DUI, the arresting officer will read the implied consent warning and ask for the State-administered test of breath, blood, or urine. That is why many people submit to several samples of their breath.
The State-administered breath test is taken on an Intoxilyzer 5000 machine. Georgia law requires you to provide two sequential breath samples, and the officer cannot demand more than two breath samples if both are valid. If you are only able to provide one adequate breath sample, with the second showing as “insufficient,” the State can use the one valid sample as evidence or the officer can request additional samples to be taken.
8. I wanted a blood test. Why was it not offered?
It is at the arresting officer’s discretion to designate the type of test and the officer can request multiple tests. If the officer requests one type of test and you state that you will only submit to a different type of test, your response will be deemed a refusal unless you agree to submit to the type of test requested by the officer.
If you first submit to the State-administered test, you are entitled to additional independent tests of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing. You must make your request for an independent test within a reasonable time after being read the implied consent notice.
Your request does not have to be made directly to the arresting officer and can also be made after rescinding your initial refusal, as long as you first submit to the State test. The officer must make reasonable efforts to accommodate you in obtaining an independent test.
So, to be clear, a person arrested for DUI in Georgia can only get the test of their choice after they first submit to the test designated by the arresting officer.
9. Why wasn’t I read my Miranda rights?
An officer is only required to inform you of your Miranda rights in limited circumstances. Miranda applies after a person has officially been taken into custody (detained by police), but before any interrogation takes place. A person is considered to be “in custody” any time they are placed in an environment in which they do not believe they are free to leave.
For example, an officer can question you after a traffic stop and investigate whether you are under the influence of alcohol without reading your Miranda rights and your statements could be used against you later in court. If you are formally arrested for DUI, the officer does not have to inform you of your Miranda rights unless he intends to interrogate you after the arrest. Miranda does not apply to statements a person makes before they are arrested. Similarly, Miranda does not apply to statements made “spontaneously,” or to statements made after the Miranda warnings have been given.
After you are arrested for DUI, the officer will read you an implied consent notice to request that you take a breath or blood test. You do not have be informed of your Miranda rights prior to responding to the officer’s request and you are not entitled to speak to an attorney prior to making the decision to refuse or submit to a test.
Miranda can apply to situations where additional crimes are discovered after the DUI arrest. For example, if drugs are found in a car after the DUI arrest, the arresting officer will have to read Miranda prior to questioning about the drugs.
10. Should I have refused or taken the breath test?
There is no bright line rule when it comes to refusing or taking a breath test if you have been arrested for DUI.
If you have not consumed any alcohol, taking the breath test can prove that you were not under the influence of alcohol. If you have consumed alcohol and agree to submit to a breath test, if the result was 0.05 grams or less, it is presumed that you were not impaired. This inference can be rebutted, however, by evidence of erratic driving or other clues of impairment observed by the officer.
No inference is created for BAC levels greater than 0.05 grams, but less than 0.08 grams. If your test result was 0.08 grams or more, you are presumed to have been under the influence of alcohol and if the test result is admitted at trial, defending your case will depend on contesting the breath test result and may require expert testimony regarding the testing equipment and whether proper procedures were followed in collecting the sample.
If you refuse to submit to a breath test, the prosecutor will not have a test result to show that you were under the influence of alcohol and must rely on other evidence to prove impairment. Not having a test result could significantly weaken the State’s case and strengthen your own, but will depend on the facts of your case.
Evidence the prosecutor may introduce to show impairment includes evidence of slurred speech, bloodshot eyes, fumbling with your driver’s license or registration, repeating questions or comments when speaking with the officer, odor of alcohol, providing incorrect or inconsistent answers, open containers of alcohol in the vehicle, admissions of drinking alcohol, your performance on field sobriety evaluations, and your manner of driving. If the arrest was recorded the patrol car video will also be admitted as evidence.
Other considerations may also affect your decision. If you submit to take a breath test or if the results of the test show a BAC of 0.08 grams or more you will be subject to an administrative suspension and your license may be suspended for a 12-month period beginning 30 days after your arrest. If you submitted to the breath test you will be eligible for a limited driving permit for the duration of the suspension and will be eligible for early reinstatement after only 30 days if you complete DUI School and pay a reinstatement fee.
If you refuse to take a breath test, you cannot get a limited driving permit and must serve the full 12-month suspension. The suspension will be lifted if you are acquitted of the DUI charge or if the DUI is dismissed or reduced to a lesser charge in the criminal case. Though in some Georgia courts, it may be months or even longer before your case is resolved.
As a result, many people have to suffer a 12-month administrative license suspension for refusing the breath test in order to contest their case in court. A refusal suspension is a “hard suspension” that precludes the ability to get a limited permit of any kind.
Ultimately, there is no general advice that applies to all situations, as there can be advantages to taking the State’s test and advantages to refusing to test. In a refusal it is harder for the State to prove the DUI against you. However, the driver’s license consequences are more severe in refusal cases than in cases where the person arrested submitted to a test.
If you or someone you know has been arrested on a Georgia DUI. Contact us ASAP so we can defend your rights.