One of the fastest growing trends in Georgia DUI are the increasing instances of arrests related to DUI cases involving drugs. The mere consumption of drugs does not mean you are guilty of DUI. This is the biggest misconception.
Most attorneys do not understand the concept that the consumption of drugs does not equal guilt. Most lawyers look at the crime lab report and see drugs and assume guilt. They fail to look to see if the drugs themselves are actually at levels that ACTUALLY IMPAIR THE DRIVER.
O.C.G.A. Section 40-6-391, covers not only offenses related to driving under the influence of alcohol, but also offenses related to driving under the influence of drugs, both legal and contraband. Essentially, O.C.G.A. Section 40-6-391 contains three (3) major provisions pertaining to DUI-Drugs:
* A person shall not drive under the influence of any drug to the extent that it is less safe for the person to drive.
* A person shall not drive under the influence of combination of substances (i.e. drugs and alcohol) to the extent that it is less safe for the person to drive.
* A person cannot be under the influence of prescription drugs, even if a drug or drugs are prescribed legally. However, in order to uphold a conviction, the State must prove that such legally prescribed medication rendered the individual incapable of driving safely.
In DUI-Alcohol cases, a person is presumed to be under the influence of alcohol if his blood alcohol level is over 0.80. In DUI-Drugs cases, there is no quantitative “legal limit” that indicates whether a person is under the influence. Rather, the necessary question is whether an individual is under the influence of a narcotic to the extent that they are a less safe driver.
Officers have broad discretion in determining whether an individual is a less safe driver. They are trained to take into account all of the factors surrounding the arrest, including the individual’s observed driving, his/her mannerisms, and his/her performance on Standardized Field Sobriety Testing. When a case arrives in court, the prosecutor will take all of these factors into account, as well as the results of any chemical testing that was performed.
Standardized Field Sobriety Testing in the context of a DUI-Drugs Case:
If a driver is suspected of driving under the influence of alcohol or drugs, he or she will most likely be subject to the standard battery of field sobriety tests. Those tests include the Horizontal Gaze Nystagmus test, the Walk and Turn, and the One Leg Stand.
If an officer suspects that an individual is under the influence of drugs, he may ask the driver to perform further testing, including the Romberg Balance Test or the Lack of Convergence Test.
Horizontal and Vertical Gaze Nystagmus Tests:
The Horizontal Gaze Nystagmus (HGN) Test measures the involuntary jerking of the eye that occurs when a person has consumed alcohol or other central nervous system (CNS) depressants.
Before HGN is performed, the officer must determine whether the individual is a good candidate for the test, as some medical or eye conditions may cause nystagmus absent the presence of alcohol or drugs. The officer should first ask the individual whether they have any such conditions. The officer should then check for “resting” nystagmus – nystagmus that exists when the eyes are facing forward and not moving. Resting nystagmus can indicate the presence of a medical disorder or the presence of certain types of drugs (PCP, for example). The officer should also check the subject’s tracking ability, or whether the individual can physically follow the stimulus with both eyes. If a person’s eyes cannot track equally, it may indicate the presence of a medical condition.
Once a person has been medically qualified, the officer may proceed with the test. The officer has the subject follow the motion of a small stimulus – usually the tip of a pen or penlight – with his or her eyes only. Each eye is checked beginning with the left eye. Two or more “passes” are made before each eye, to look for each of the clues of nystagmus.
Vertical Gaze Nystagmus (VGN) is an involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs (such as CNS depressants or inhalants). There is no drug that will cause Vertical Gaze Nystagmus while not also causing Horizontal Gaze Nystagmus; thus, if Vertical Gaze Nystagmus is present and Horizontal Gaze Nystagmus is not, it may also be caused by a medical condition.
Officers typically check for VGN immediately after checking for HGN, using the same stimulus but simply moving it vertically rather than horizontally. For VGN to be recorded, it must be definite, distinct and sustained for a minimum of four seconds at maximum elevation.
If either HGN or VGN are observed, this may indicate the presence of drugs or alcohol. However, the absence of nystagmus does not necessarily rule out the presence of drugs, as some drugs do not cause nystagmus.
Even in the absence of nystagmus, officers are trained to note other features of the eyes. For example, officers will usually note if pupils are noticeably dilated, as this may indicate the presence of drugs such as CNS stimulants (cocaine and amphetamines, for example), Hallucinogens (LSD or mushrooms), Cannabis (marijuana).
Walk and Turn Test:
The Walk and Turn test is a “divided attention” test that requires an individual to concentrate on more than one thing at a time – a mental task and a physical task. The idea behind this is that driving is also a divided attention task – drivers must simultaneously control steering, acceleration and braking, watch the road and react appropriately to their surroundings. Because alcohol and drugs may reduce a person’s ability to divide attention, it is believed that an inability to complete a divided attention test adequately is indicative of some level of impairment.
The Walk and Turn Test is divided up to include two phases: the instructional phase and the walking phase. During the instructional phase of the test, the officer tells the individual to stand in a heel to toe position and remain there until the officer tells him or her to begin the test. During this phase, the person’s attention is divided between balancing in the heel-to-toe position and listening to and remembering the instruction for the remainder of the test.
During the walking phase of the test, the individual is instructed to take nine heel-to-toe steps, turn in a specific manner, count his or her steps out loud, and watch his or her feet. This phase divides the individual’s attention among a balancing task, a small muscle control task, and a short-term memory task.
The officer observes the individual during the performance of the test noting if the individual:
One Leg Stand Test:
The One Leg Stand test is another NHTSA-validated divided attention test that is commonly used during a DUI investigation. The One Leg Stand test consists of two phases: the instructional phase and the balance and counting phase. During the instructional phase, the individual is instructed to stand with his or her feet together, arms down by his or her sides. Once instructed to begin the test, the individual lifts either leg approximately six inches off the ground while counting out loud (“one thousand one, one thousand two, one thousand three, etc,”) until told to stop.
The officer observes the individual during the performance of the test, noting if the individual:
These are the four validated clues for this test. The individual is considered unable to complete the test if the subject is in danger of falling.
Other (Non-Standardized) Tests Commonly Used to Determine Impairment:
These tests are non-standardized tests that have not been scientifically validated by NHTS for use during a DUI arrest. Nonetheless, officer often uses them to develop probable cause for arrest. An expert can inform the jury as to the lack of scientific evidence to support the administration of these tests.
Modified Romberg Balance Test:
The Modified Romberg Balance Tests is designed to check a person’s internal clock, balance and presence of tremors. Officers instruct the individual to tilt his or her head back and close his or her eyes. The suspect is then asked to estimate the passage of 30 seconds, and to open their eyes when they believe 30 seconds have elapsed. The idea behind this is that some drugs “speed up” the internal clock while others tend to slow it down, causing a person to have difficulty estimating the passage of time. Officers note the amount that the subject sways (which the officer must estimate), the actual amount of time that the subject keeps the eyes closed and the presence of tremors.
Lack of Convergence Test:
Lack of convergence occurs when an individual is unable to cross his eyes when focusing on a stimulus that is moving towards the bridge of the nose. It is observed when one eye or both eyes drift away or outward toward the side instead of converging toward the bridge of the nose. Lack of convergence may indicate the presence of CNS depressants, inhalants, dissociative anesthetics, or marijuana.
The officer instructs the individual to recite the alphabet beginning with a letter other than A and stopping with a letter other than Z. This test has not been scientifically validated.
This technique requires the individual to count out loud 15 or more numbers in reverse sequence. For example, the officer might request the individual to, “Count out loud backward, starting with the number 68 and ending with the number 53.”
In this technique, the individual is asked to touch the tip of the thumb to the tip of each finger on the same hand while simultaneously counting up one, two, three, four; then to reverse direction on the fingers while simultaneously counting down four, three, two, one.
DRE – Drug Recognition Experts:
Some police officers are trained as DRE’s drug recognition experts. They receive specialized training to determine through field-sobriety testing if someone is under the influence of illegal or prescription drugs. Usually, most DRE’s are also experts in detecting alcohol-based DUI’s. There is no requirement that an officer is a DRE to arrest someone for driving under the influence of drugs.
However, having the certification of being a drug recognition expert adds tremendous credibility to a police officer accusing someone of DUI-Drugs. Conversely, since most police departments and the Georgia State Patrol have DRE’s on staff, an officer who suspects someone of DUI-drugs compromises their case if a DRE is not called in.
SCIENTIFIC CATEGORIES OF DRUGS
According to the National Highway Transportation Safety Administration (NHTSA), there are seven (7) main categories of drugs and each type of drug has a different observable effect on a driver.
These types of drugs slow down the function of the brain and other parts of the central nervous system. They also slow down the heartbeat, blood pressure, respiration, and many other processes controlled by the brain. The most common type of depressants are alcohol, anti-anxiety medications, and muscle relaxants.
Effect: “drunken behavior” such as acting drowsy, uncoordinated, sluggish, disoriented, and thick/slurred speech.
This category of drugs impairs the central nervous system by “speeding up” or over-stimulating the brain. The body’s functions are accelerated, such as heart rate, respiration, blood pressure, and other processes of the body. Examples of this drug are cocaine, methamphetamine, and other amphetamines.
Effect: restlessness, talkative, excited state, euphoria, exaggerated reflexes, grinding of teeth, nasal area redness, runny nose, body tremors, and loss of appetite.
Hallucinogens include some natural, organic substances, and some synthetic chemicals. They impair the user’s ability to perceive the world as it really is; for example, the user may be seeing things that are not there, or perhaps see things in a different way than they actually exist. They also alter the user’s sensations, self-awareness, emotions, and thinking. LSD is an example of a synthetic chemical hallucinogen. Other examples include hallucinogenic mushrooms and ecstasy.
Effect: hallucinations, disorientation, paranoia, nausea, dazed appearance, body tremors, uncoordinated, perspiration (sweating), difficulty in speech, and goose bumps.
This category includes the drug PCP and its various forms and Dextromethorphan (DXM). PCP is a very unpredictable drug that can sometimes act like a depressant, a stimulant, a hallucinogen, or all three at once. Dissociative anesthetics can cause bizarre and sometimes violent behavior.
Effect: possibly violent and combative behavior, muscle rigidity, blank stare, repetitive speech, confused, difficulty in speech, perspiration (sweating).
This drug category includes the natural derivatives of opium, such as morphine, heroin, codeine, and others. It also includes many synthetic drugs. This type of drug relieves pain and produces a very strong addiction and withdrawal signs and symptoms.
Effect: droopy eyelids, facial itching, depressed reflexes, dry mouth, fresh puncture marks on body, and low/raspy speech.
This category of drugs includes many familiar household products, such as paint, glue, aerosol sprays, etc. Other examples are gasoline, hair spray, insecticides, ether and chloroform. Of course, none of these products are meant for use as a drug, but are often abused. They produce strong, volatile fumes that produce significant impairment. Many inhalants block the passage of oxygen to the brain.
Effect: disorientation, confusion, slurred speech, nausea, and possible residue of substance on body and clothing.
This type of drug includes marijuana hashish, as well as synthetic compounds. The various cannabis products impair the attention process and the user’s ability to perform divided attention tasks.
Effect: reddening of eyes, disorientation, body tremors, odor of marijuana, difficulty in dividing attention, and relaxed inhibitions.
If you were subjected to field sobriety testing prior to a DUI-Drugs arrest, it is of utmost importance that you seek an attorney with experience in DUI defense. There are several reasons for this. First, these tests are standardized, and police officers are not infallible. If the arresting officer failed to perform the tests correctly, an experienced attorney can challenge their validity. Second, lawyers with experience know that these tests were not designed to detect the presence of drugs. While the effects of certain drugs mimic the effects of alcohol, field sobriety testing was never developed or validated to detect drugs. They are intended to detect the usage or impairment of alcohol.
CHEMICAL TESTING IN DUI-DRUG CASES & DUI-MARIJUANA CASES:
Even if your blood or urine test is positive for marijuana there is hope. When an individual uses marijuana, his/her body begins to break down the marijuana metabolites, called THC. The first metabolite produced is Hydroxy THC. This is the psychoactive metabolite. Once the Hydroxy THC is metabolized by the liver, a secondary metabolite, Carboxy THC, is produced. Carboxy THC is non-psychoactive and not impairing. Carboxy THC does, however, remain in the body for several weeks after the last marijuana use.
In Georgia, the type of blood test typically administered to people suspected of DUI Marijuana only tests for the presence of marijuana metabolites (THC), without differentiating between Hydroxy THC (the psychoactive metabolite) and Carboxy THC (the non-psychoactive metabolite). This means that although the test may show that you had marijuana metabolites in your system, this does not necessarily mean you were driving under the influence of marijuana.
A successful defense in a DUI-Marijuana case requires the attorney to understand not only the law, but the science of marijuana impairment as well.
DUI-PRESCRIPTION DRUG CASE:
In most DUI-Drugs cases, the police request a blood test. Thus, to achieve the best possible outcome, a knowledgeable attorney must understand the procedure used in blood testing and how this procedure may result in errors. For example, the person drawing the blood may have accidentally contaminated the sample, the blood may have coagulated (resulting in an artificially high level of alcohol or drugs in the blood sample), or the blood may have been stored under poor conditions, resulting in spoliation of the sample.
As stated above, for legally prescribed drugs, the fact that you took a certain medication legally is not necessarily a defense, especially if the dosage in your bloodstream appears higher than prescribed. It is illegal to drive under the influence of any substance, even if consumption of the substance is legal. However, the blood test may show that the amount of a particular medication in your blood is within the “therapeutic” levels prescribed by your doctor. In this case, an experienced attorney can work with a pharmacology expert to explain this distinction between “therapeutic” and “impairing” levels to a jury.
Certain medications, when combined with alcohol, react in different ways. Some may result in a higher level of impairment while others would have less of an effect on a person’s ability to drive safely. Additionally, most people, including those who serve on juries, are unaware that perfectly normal, legal substances (such as cough medicines or even poppy seed muffins) can result in a false positive on a drug test. While expert testimony may be necessary to explain these facts to a jury, an attorney can use this information to help during plea negotiations.
An experienced DUI-Drugs attorney knows that the mere presence of a prescription medication in your blood does not mean that you are guilty of DUI. The State still must prove the medication rendered you an unsafe driver.
A DUI charge can cause a major disruption in your life. Because of the political pressures brought to bear on the system, a DUI has become a very expensive and time-consuming charge to deal with correctly. The information contained below is provided in an effort to give you a basic understanding of what has got you to this point as well as an overview of various DUI defenses that can be used.
A 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 wrongdoing. In effect, law enforcement cannot just pull you over for any reason. There has to be a legitimate reason that you are being pulled over for you to be prosecuted.
Articulable suspicion is established when an officer allegedly observes a traffic offense such as: Speeding; Failure to Maintain Lane; Following Too Closely; Aggressive Driving; Weaving Within a Lane; and Any Form of Reckless Driving. These offenses give the officer a basis to pull over a vehicle. Also, many cases begin when there is an at-fault accident. Causing an accident is enough to initiate a DUI investigation. If the officer had no reason to stop you because you were not violating any rules of the road, this may be used as a defense. In DUI cases, some of the common reasons that people are pulled over is failure to maintain a lane or making an improper lane change. However, there may be a myriad of reasons that you committed a traffic infraction that have nothing to do with being impaired. For example, you may have swerved because you were checking your phone, or failed to signal because there was not another car coming that you needed to notify of your lane change.
Also, many arrests occur at a roadside checkpoint commonly called a DUI roadblock. However, the police cannot just implement a roadblock any time or any place. A roadblock is an exception to the 4th Amendment to the United States Constitution. As an exception, this 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 DUI Attorney will know how to challenge the legality of the roadblock that resulted in your arrest. Law enforcement departments have to follow certain rules in order to conduct a road block. Those are Constitutional requirements, and if they are not followed, this can form the basis of a defense as the entire stop may have been illegal.
Probable Cause is the standard necessary to arrest a person. The standard is 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. Police officers are trained to look for some particular manifestations of DUI to establish probable cause to arrest:
Field Sobriety Testing is commonly used to establish probable cause to arrest. These tests are created by the National Highway Safety Traffic Administration (NHTSA) and are designed to help officers determine probable cause to arrest people suspected of DUI. NHTSA claims that these tests show a correlation to alcohol impairment. However, none of their studies are peer reviewed, and they commonly rewrite their student manual without the advent of new studies to support 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 deleted language without any reference to any new peer-reviewed studies validating their new procedures.
The Standardized Tests Are:
Horizontal Gaze Nystagmus: This test is 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 that can make the test nonreliable.
Walk & Turn: This test consists of nine heel-to-step steps along a line, 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 usually walking 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 four clues including, putting your foot down, raising your arms for balance, swaying, and hopping.
It is important to note, however, that people can do badly on these tests for a variety of reasons. For example, some people have a nystagmus that occurs naturally or is caused by medication. So, looking for a nystagmus in those individuals would not be a good indication or indicator of intoxication. Weight and age could also affect how a person performs a field sobriety test, as can environmental conditions like bad weather, lighting, or having to perform the tests on hills.
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 with 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. In many instances, these tests are not done according to the prescribed methods. If the prescribed methods are not used, then you can prove results are invalid.
In additional to standardized field sobriety testing (and other field tests) is the roadside alco-sensor test. That 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 prosecution cannot use the numeric outcome of the test. The arresting officer can only state that the test was positive or negative for the presence of alcohol.
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 accurately explains to suspected DUI drivers the difference between the road-side test and the Intoxilyzer 9000 test at the station. The implied 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.
The Request for a Chemical Test:
Once a law enforcement officer believes there is probable cause to arrest, 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.
This is why driving is technically not a right but a privilege that can be taken if a person is afforded 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. Law enforcement officers are required to read the State’s implied consent notice before asking you to submit to a chemical test. If mistakes are made such as the officer does not follow the proper protocol, does not read the notice, or the notice is not the current or correct version, you may be able to get the results of the chemical test suppressed. 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 situation. In that situation, in a first offense the driver will qualify for a permit to drive in the event they are administratively suspended.
When a client submits 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 9000 test will provide the details 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 choosing (within reason) and at your expense. If the officer fails to accommodate your request for an independent test reasonably, you can have the results of the state-administered test suppressed from the trial in your case. You have to pay for your independent test, but the officer must accommodate you in a reasonable manner. For example, an officer must take you to an ATM 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 & 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 evidence against themselves. People certainly have the 5th Amendment right against self-incrimination and a 4th Amendment right against unreasonable search and seizure. If an officer determined that you refused to take a test, you can challenge this determination if you did not actually intend to refuse. For example, if you were silently debating what to do, this may have been misconstrued as refusing to submit to the test, even though you made no affirmative statement that you were not going to cooperate.
However, those criminal rights have little bearing on a person’s driver’s license. Driving is a privilege and not a right, and, as a result, 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 is the civil preponderance of evidence standard. As a result your license can be taken before you are proven guilty beyond a reasonable doubt.
At the time of your arrest, the police officer will likely take your driver’s 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 given a court date but not a 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 $150.00 filing fee. Otherwise, you will have your license suspended on the 46th day after your arrest. So, it’s vital to have your attorney file the appeals as soon as possible. Your case will not defend itself. View the Drop Box entitled 1205 Hearing/30 Day Letter.
DEFENSES TO BLOOD & BREATH TESTS:
One of the most common ways for a police officer to determine if there is alcohol in your system is by way of a blood or breath test. Unfortunately, what law enforcement relies upon to provide conclusive evidence is often faulty and defective.
According to the State of Georgia, anytime you are driving a vehicle you have given “implied consent” to be tested for blood alcohol concentration (BAC). This means that if you exhibit behavior that leads an officer to suspect intoxication at the wheel, they can pull you over and administer a blood or breath test.
The breath test is the most common type of BAC test used, but what many citizens do not know is that Georgia continues to use outdated breathalyzer technology. Because it can be so inaccurate, there are a number of different variables which may affect your indicated BAC level.
These factors can include the following:
A positive blood test result in a DUI case may seem like a nail in the coffin, but it is not. Just because the test in your DUI came back with a result of .08 or greater does not mean you are on a one-way course to conviction. There are many ways you can challenge this test result, calling into questions every step of the process to raise doubt about your guilt.
With the right legal representation in your corner, the aftermath of a DUI can be significantly less damaging to your record and career. Blood draws must be conducted by skilled professionals and the whereabouts of the blood sample must be meticulously recorded. This multi-step process is imperfect, and there is plenty of room for human error.
Challenging a DUI blood test begins with an investigation into the DUI arrest itself. The police may have blood test evidence against you, but this evidence could prove inadmissible if law enforcement did not adhere to the strict guidelines dictating how to go about a DUI arrest. These guidelines are meant to protect Georgia citizens from unfair treatment that infringes on their rights. If your arresting officer did not uphold all of your rights or did not make you aware of them, you may be able to get your case dismissed.
In order to initiate a traffic stop, the officer must first have a basis to pull you over, such as erratic driving or failure to obey traffic signs. After field sobriety tests, if the officer suspects you are under the influence of drugs or alcohol, you will be taken to the station and required to give a sample of blood, breath or urine (chemical testing). Under Georgia law, chemical testing is not meant to be negotiable if there is concrete evidence that the suspect was behind the wheel.
The Georgia implied consent law holds that anyone who operates a vehicle has already consented to give a sample of blood, breath or urine at any time to prove their sobriety if it is called into question. Despite the existence of this law, you still have the right to refuse, though it comes with consequences: an automatic one-year license suspension. You have 30 days from the date of arrest to retain a Georgia DUI attorney and appeal your suspension. After these 30 days, your suspension cannot be appealed.
If you refuse, a warrant can be obtained to require you to provide a blood sample. The recent United States Supreme Court decision in the case of Birchfield v. North Carolina, may have an impact on your case, depending on the circumstances. In that case the court determined that a driver can give implied consent to a warrantless blood test, as the court considered this kind of test invasive. In order for an officer to get a blood sample, he or she would generally need to get a warrant first. However, the court did find that requesting a defendant to take a breath test without first obtaining a warrant was permissible, as the court considered this type of test to fall into the search incident to arrest exception to the Fourth Amendment’s warrant requirement.
At your own expense and after the police obtain a blood sample, you can request another blood test from qualified personnel of your own choosing. A Georgia citizen is fully within his or her rights to demand additional blood tests and Georgia must accommodate them if they choose to do so. If law enforcement chooses not to accommodate the request, their own blood test evidence against the suspect may be thrown out.
Law enforcement is required to inform you of all of your rights with regard to chemical testing and the consequences of your refusal. If they fail to do so, your lawyer can point to it as a failing on their part, which may help your case. Prior to administering the blood or breath test, law enforcement will read you an implied consent card, letting you know your rights in the situation.
A trained professional conducts the blood draw, collecting an exact sample size. Sample size errors within a margin of even 1/10 will invalidate the result. Equipment must be sterilized to give a valid result. Contact with other unsterilized equipment, surfaces or objects could contaminate a sample and invalidate the result. The properly stored sample is transported to a lab, where it is heated in a closed vial. Any alcohol present in the sample becomes gas. A gas chromatography analyzes the gaseous sample and determines the amount of alcohol that was in the blood. All equipment must be properly calibrated. The samples must be tested by skilled lab technicians. As the sample changes hands before it arrives at the laboratory, its chain of custody must be recorded at every point. If the sample’s whereabouts are unaccounted for, even the shortest duration, the integrity of the sample cannot be guaranteed and the results are invalid. The proper storage of the sample can also be probed by an attorney. If the sample was improperly stored, there is a chance fermentation could occur and artificially inflate the blood alcohol content reading.
Every DUI case is different, but one thing remains the same; if you have been charged with driving under the influence in Georgia, you should not proceed without an experienced DUI attorney at your side.
In Georgia, it is against the law to operate any moving vessel while under the influence of alcohol, drugs, whether illegal or prescription, to the extent that it is less safe for the person to do so. Like Driving Under the Influence (DUI) charges, in Georgia a Boating Under the Influence (BUI) charge carries heavy fines and penalties that can have a significant impact on your life.
10-DAY WARNING FOR BUI IN GEORGIA:
If you have been cited or arrested for Boating Under the Influence in Georgia, you will only have 10 days to appeal the suspension of your privilege to boat in Georgia. If this appeal is not filed timely, you will lose your privilege to boat in Georgia for up to 1 year.
BOATING UNDER THE INFLUENCE LAWS IN GEORGIA:
O.C.G.A. Section 52-7-12(a) states that “no person shall operate, navigate, steer, or drive any moving vessel, or be in actual physical control of any moving vessel, nor shall any person manipulate any moving water skies, moving aquaplane, moving surfboard, or similar moving device while [under the influence of alcohol, drugs, a combination of alcohol and any drug, marijuana, glue, aerosol, or toxic vapor]…” This shows that BUI laws apply to all types of watercrafts including motor boats, sailboats, jet skis, water skis, and surf boards.
In order to be convicted of BUI, the state must be able to prove that you were under the influence of an intoxicant to the extent that you were less safe to operate, navigate, steer, drive, or be in actual physical control of any moving vessel. This can be an important distinction when the evidence only shows the mere presence of alcohol but no “manifestations of impairment” were observed. An odor of alcohol or a positive Alco-sensor (breathalyzer) result shows that you likely had consumed some amount of alcohol but does not show that you were actually impaired or less safe to operate a watercraft. Poor performance on field sobriety evaluations, however, can be used as evidence of impairment.
It is also against Georgia BUI law for any person’s blood alcohol concentration (BAC) to be “0.08 grams or more at any time within three hours after such operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device from alcohol consumed before such operating, navigating, steering, driving, manipulating, or being in actual physical control ended.” O.C.G.A. Section 52-7-12(a)(4).
The offense is commonly referred to as “BUI per se” and requires the State have a chemical test result in evidence to prove that the person’s BAC was 0.08 grams or more, as opposed to “BUI less safe.” The penalties for BUI Less Safe and BUI per se are the same. Effective May 15, 2013, the “per se” blood alcohol level for BUI was lowered to 0.08 grams to mirror Georgia’s DUI law. O.C.G.A. Section 52-7-12(a)(4). The previous BAC was 0.10 grams for all cases that arose prior to May 15, 2013.
A person under the age of 21 can be arrested for BUI in Georgia if his or her BAC is 0.02 grams or more at any time within three hours after being in physical control of a moving watercraft. This also mirrors the Georgia DUI laws. This can result in a situation where an under age 21 boater can be found guilty of Boating Under the Influence, while actually not being impaired.
If there is a chemical test of the person’s blood alcohol concentration, certain presumptions can be made about the person’s level of impairment. These presumptions can be rebutted, however, due to the fact that each individual responds to and processes alcohol differently. If the person’s BAC was 0.05 grams or less, it is presumed that the person was not impaired. The inference can be rebutted, however, by evidence of erratic behavior 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 the person’s BAC was 0.08 grams or more at that time or within three hours of being in actual physical control of a moving watercraft due to the consumption of alcohol before such physical control ended, the person is in violation of Georgia’s “BUI per se” statute.
Georgia’s BUI laws fall under the Georgia Boat Safety Act which means BUI laws only apply to boaters on public waterways, and not to boaters on private lakes like Lake Arrowhead in Cherokee County. But Lake Lanier, Lake Oconee, Lake Allatoona, Lake Burton as well as Georgia’s other waterways are patrolled by the Department of Natural Resources and local law enforcement agencies.
Law enforcement does not need any reason to stop a person’s vessel on a waterway. In Georgia, safety checks are permitted on boats without any probable cause of any criminal wrongdoing. This is a key difference between boating and driving, and the Georgia DUI laws. At least reasonable suspicion is needed to pull over any Georgia driver. There must be probable cause to arrest a person for DUI.
If an officer observes signs of impairment after performing a safety check, the officer can then further detain the person for purposes of investigating whether the person is under the influence of alcohol or drugs and is safe to operate the watercraft. During the investigation, the officer will be looking for clues such as the admission of drinking, slurred speech, bloodshot eyes, fumbling, repeating questions or comments, the odor of alcohol on the person’s breath, and proving incorrect or inconsistent answers.
Many of the officer’s observations will only show a likelihood of the presence of alcohol but will not show that the person is actually impaired. Many law enforcement officers are trained to administer standardized field sobriety tests that are designed to assess the person’s mental and physical impairment. Many tests are administered when BUI is suspected as when a DUI is investigated. The officer may administer the horizontal gaze nystagmus test, a scientific test, as well as ask you to recite the alphabet, count backwards, perform a dexterity test, or submit a breath sample in an Alco-sensor.
BOATING UNDER THE INFLUENCE FIELD SOBRIETY TESTING:
During the field sobriety tests, the officer will be evaluating the person’s performance by looking for certain clues. These clues, if observed, may provide the officer with probable cause to arrest for BUI. Performance on the field sobriety tests will be used as evidence to prove that the person was less safe to operate a watercraft. The officer’s arrest decision is based on the totality of the circumstances involved.
If the person is subsequently arrested for BUI, Georgia law requires law enforcement officers to follow certain procedures to request a chemical test to determine the person’s blood alcohol concentration. If those procedures are not adequately followed, it can lead to key evidence being inadmissible at trial and can mean the difference between a conviction and a dismissal of all charges.
Any person operating a watercraft or vessel on the waters of this State is deemed to have given consent to a chemical test of his or her blood, breath, or urine to determine the presence of alcohol or drugs if arrested for BUI or involved in an accident resulting in a fatality or serious injury.
The arresting officer must read the appropriate Georgia Implied Consent Notice depending on the person’s age. There are separate notices for operators age 21 or over, and those under age 21. This is due to differences in the “per se” level of impairment under Georgia law. This mirrors the differences in the DUI Laws of Georgia.
YOUR RIGHTS IN GEORGIA BOATING UNDER THE INFLUENCE CASE:
The Implied Consent Notice for Suspects 21 or Over is as follows:
Georgia law requires you to submit to State-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your privilege to operate a vessel on the waters of this State will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing, results of that test or tests may be used against you. If the results of such test or tests indicate an alcohol concentration of 0.08 grams or more or the presence of an illegal drug, your privilege to operate a vessel on the waters of this State may be suspended for a minimum period of one year. After first submitting to the required State tests, you are entitled to additional chemical tests of your blood breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the State-administered chemical tests of your (designate which tests) under the Implied Consent Law?
If the person refuses to take the requested chemical test, the refusal to submit can be used as evidence in the criminal case. Georgia law further states that any person who is dead or unconscious, or otherwise in a condition making the person incapable of refusing has not withdrawn his or consent and the test may still be administered. This is the same in Georgia Vehicular Homicide Law, and Georgia Serious Injury by Vehicle Law.
Georgia has an administrative penalty, separate from the criminal proceeding, for any watercraft operator that refuses to take a State-administered test or submits to a State-administered test that shows a blood alcohol concentration of 0.08 grams or more, or, if the person is under age 21, a blood alcohol concentration of 0.02 grams or more. The vessel must have been motorized having ten or more horsepower or was a sailboat more than 12 feet in length. This penalty is a 12 month suspension of the person’s privilege of operating a vessel on waters of this State and the suspension is implemented immediately after the arrest for BUI.
A request for hearing must be submitted within 10 business days after arrest or receipt of notice of suspension to appeal the suspension of the person’s Georgia boating privileges. The request for a hearing is commonly referred to as the “10 day letter” and must include certain basic information as well as state the grounds for the appeal.
* The hearing is limited in scope and only covers the following issues:
* Whether the officer has reasonable grounds to believe the person was operating or in actual physical control of a moving vessel while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for BUI;
* Whether the person was involved in a vessel accident or collision resulting in serious injury or fatality;
* Whether the officer informed the person of his or her implied consent rights at the time a test was requested
* Whether the person refused the test; or
* Whether a test was administered and the results indicated a BAC of 0.08 grams or more or, if the person is under the age of 21, a blood alcohol concentration of 0.02 grams or more; and
* Whether the test was properly administered.
If the test was refused, the person’s boating privileges will be suspended for a 12-month period. If the person submitted to a test and the results showed a BAC of 0.08 grams or more or, if the person is the age of 21, a blood alcohol concentration of 0.02 grams or more, the person’s boating privileges will be suspended for a period of one year. If proof that a DUI Alcohol or Drug Risk Reduction Program (DUI School) has been completed, the certificate of completion is submitted and a restoration fee of $200.00 is paid. In this case, the person’s boating privileges may be reinstated as soon as 120 days. Previously, privileges could be reinstated as soon as 30 days and no restoration fee was required. A second administrative suspension within five years will lead to a three-year suspension, with eligibility for reinstatement after 18 months. A third or subsequent suspension within five years will lead to a five-year suspension with no early reinstatement.
If boating privileges are suspended administratively, that suspension will be lifted if the BUI charges are dismissed, the charges are reduced, or if the person is acquitted. So, if you win your case, then the victory in the criminal court will supersede the administrative boating suspension.
GEORGIA BUI PENALTIES:
Operating a watercraft within Georgia while boating privileges are suspended is a misdemeanor offense punishable by a fine not less than $500.00 nor more than $1,000.00. A second offense within five years is a high and aggravated misdemeanor offense punishable by a fine of not less than $1,000.00 nor more than $1,500.00. Each conviction will extend the period of suspension by an additional six months.
A BUI will not suspend or have any effect on a person’s Georgia driver’s license or privileges to drive in this State. Only a person’s boating privileges can be suspended due to a BUI. This is a commonly-held misconception. However, BUI is a serious misdemeanor that can result in jail time and other court-mandated sanctions.
Because a BUI is a misdemeanor offense, the maximum penalty is 12 months in jail and a $1,000.00 fine plus court surcharges. The minimum sanctions are 24 hours in jail with credit for time served at arrest, 12 months probation, a fine of $300.00, 40 hours community service (only 20 hours are required if the person’s BAC was less than 0.08 grams), completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation and any recommended treatment. If convicted, a BUI charge will remain on your criminal record forever, which can affect your ability to gain future employment, enroll in school, and receive financial aid.
A second BUI offense in Georgia within a 10-year period has maximum sanctions of 12 months in jail and a fine up to $1,000.00. The minimum sanctions are 72 hours in jail with credit for time served at arrest, 12 months probation, a fine of $600.00, 240 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation along with any recommended treatment.
A third conviction of BUI within a 10-year period is a high and aggravated misdemeanor punishable by a fine of $1,000.00 to $5,000.00. The minimum sanctions are 15 days in jail with credit for any time served at arrest, a $1,000.00 fine, 12 months probation, 240 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation along with any recommended treatment.
A fourth or subsequent BUI in a 10-year period is a felony offense and punishable by a fine of $1,000.00 to $5,000.00, not less than 90 days nor more than 5 years in prison, 480 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, a clinical evaluation and any recommended treatment, and 5 years probation less any days spent in actual confinement. Only arrests occurring after May 15, 2013 will be considered in calculating the number of convictions within a ten-year period.
With any BUI fines, one-half of any fine imposed may be suspended by the judge at the judge’s sole discretion if the person undergoes treatment in substance abuse treatment program.
Further, any person who is charged with BUI while a child under the age of 14 is on watercraft or being towed on water skis, an aquaplane, a surfboard or similar device will also be charged with the separate offense of Child Endangerment. A separate count of child endangerment will be charged for each child under the age of 14 present at the time of arrest. Just like in DUI Child Endangerment, each child in the boat creates a separate criminal offense on top of the BUI.
The maximum penalty for a first or second Child Endangerment misdemeanor conviction in Georgia is 12 months incarceration and a $1,000.00 fine plus court surcharges. A third or subsequent conviction will be a felony and is punishable by incarceration for one to three years and a fine of $1,000.00 to $5,000.00 plus court surcharges.
SERIOUS INJURY BY VESSEL & HOMICIDE BY VESSEL:
A person may face much more serious charges if an accident or collision occurs while a person is operating a watercraft that results in serious injury or death.
Serious Injury by Vessel can be charged if a person causes another person bodily harm through an offense of speeding greater than idle speed within 100 feet of a moored vessel or a person in the water, or shoreline, operating a vessel in a boating safety zone, failing to render assistance as required, failing to stop for law enforcement, reckless operation, or BUI. The statute defines serious injury as “depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless.” O.C.G.A. Section 52-7-12.4. Serious Injury by Vessel is a felony offense and is punishable by imprisonment for not less than one year nor more than 5 years. A person’s boating privileges will also be suspended in Georgia for 3 years if convicted.
Homicide by Vessel is a very serious charge in Georgia and carries severe penalties. Homicide by Vessel in the First Degree is a felony offense if the death is caused by a serious violation such as speeding greater than idle speed within 100 feet of a moored vessel or a person in the water, or shoreline, failing to render assistance as required and leaving the scene of an accident or collision, operating a vessel in a boating safety zone, failing to stop for law enforcement, reckless operation, or BUI and is punishable by not less than 3 nor more than 15 years in prison.
Homicide by Vessel may be charged as Homicide by Vessel in the Second Degree if the death was the result of a violation of any other boating offense not enumerated in Homicide by Vessel in the First Degree. Homicide by Vessel in the Second Degree is a misdemeanor offense with a maximum punishment of one year in jail and a $1,000.00 fine.
MORE INFORMATION OF GEORGIA BOATING LAWS:
Flotation Device Regulations
O.C.G.A. Section 52-7-8(d)(3) has been amended as of May 15, 2013, to require that all children under the age of 13 wear personal flotation devices when aboard a moving vessel on Georgia waters other than when the child is within a fully enclosed roofed cabin or other fully enclosed roofed compartment or structure on the vessel.
Kile Glover Boat Education Law:
Effective July 1, 2014, this law requires that anyone age 12 through 15 may operate a personal watercraft on Georgia waters if accompanied by an adult 18 years or older or if he or she has completed a boating education course approved by DNR prior to operation of such vessel. Further, any person born on or after January 1, 1998, who operates any motorized vessel on the waters of Georgia must have completed a boating education course, unless the person is a licensed member of the US Coast Guard, operates the vessel on a private lake or pond, or a nonresident who has completed a National Association of State Boating Law Administrators’ approved boater education course or the equivalency from another State and has proof of completion in his or her possession. O.C.G.A. Section 52-7-22(b) & (c).
Vehicular homicide is one of the most serious charges anyone can face in the Georgia legal system. Vehicular homicide charges may be considered either a felony or a misdemeanor depending on the facts surrounding the particular case, which will ultimately be up to the Georgia prosecutors.
HOMICIDE BY VEHICLE IN GEORGIA:
Georgia law O.C.G.A. Section 40-6-393 outlines the degrees of homicide by vehicle. A person will be charged with homicide by vehicle in the first degree when, without malice aforethought, a death is caused by the person either unlawfully passing a school bus, reckless driving, fleeing or attempting to elude a police officer, or leaving the scene of the accident.
Homicide by vehicle in the second degree occurs when death results due to a violation of any other statute other than the ones specified for homicide in the first degree.
VEHICULAR HOMICIDE IN GEORGIA CAN BE BOTH A FELONY AND A MISDEMEANOR:
Generally, misdemeanor-grade vehicular homicide happens when a death is the result of a violation of basic traffic laws. Conviction of a misdemeanor vehicular homicide charge may warrant a sentence up to one year. An example of how this can happen is a death as a result of a speeding violation, failure to maintain lane, or following too closely. If someone is unfortunately killed as a result of regular traffic offenses, a person can still be charged with misdemeanor vehicular homicide.
A felony-grade vehicular homicide charge occurs when a death is the result of DUI or reckless driving. Convictions of felony-grade vehicular homicide may warrant up to 15 years in prison. The prosecution in Georgia is the Office of the Solicitor-General, who generally prosecutes misdemeanor charges in State Court, and the Office of the District Attorney, who prosecutes felony charges in Superior Court.
VEHICULAR HOMICIDE CASE LAW IN GEORGIA:
A man was found guilty of homicide by vehicle in the first degree when he engaged in reckless driving and two of the passengers were killed. Otuwa v. State, 319 Ga.App. 339 (2012). The defendant was driving 93 miles per hour down a residential road when he lost control of the vehicle, crashed into a stop sign, left the road, and the vehicle began to roll repeatedly. Defendant’s sister and another passenger were ejected from the car and died from their injuries. Defendant and a third passenger survived the accident without any major injuries. The speed limit on the road was 45 miles per hour. During the trial, the accused argued that his charge should be reduced to second-degree vehicular homicide because he was speeding. However, the Court found that there was sufficient evidence proving that the accused was engaged in reckless driving and therefore, a charge of first-degree vehicular homicide was warranted. Consequently, he was convicted of first-degree homicide by vehicle.
A Georgia case where the suspect was convicted of second- degree homicide by vehicle can be found in McKinney v. State, 213 Ga.App. 498 (1994). In that case, the accused was found guilty of several traffic violations that were the proximate cause of an accident that resulted in the death of the victim. The accused was driving on the wrong side of the road when he hit the victim and she died from her injuries. The suspect attempted to argue at trial that there was insufficient evidence to support a conviction for vehicular homicide. However, the jury found ample evidence demonstrating that he violated several traffic laws that lead to the death of the victim. Therefore, a conviction of second degree homicide by vehicle was appropriate.
PENALTY FOR A HOMICIDE BY VEHICLE CONVICTION IN GEORGIA:
The consequences for a homicide by vehicle conviction in the first degree are a prison term between three and fifteen years. Further, the crime will be deemed a felony.
A conviction for homicide by vehicle in the second degree is considered a misdemeanor and carries penalties of a fine up to $1,000.00 or a prison term up to 12 months, or both.
If a person is charged with homicide by vehicle in the first degree and they are a habitual violator and their license has been suspended or revoked, then the punishment will be elevated to a prison term between five and twenty years.
In addition to penalties decided by a judge, the offender could also face a civil suit brought on by the victim’s family. In a civil suit, the judge could award damages such as pain and suffering or loss of company to the victim’s family.
Furthermore, homicide by vehicle convictions can have long term consequences. A felony conviction can make finding employment difficult as well as precluding the victim from practicing in certain professions such as teaching, the medical field, and other areas. The conviction will appear during background checks and can also affect obtaining housing or credit. It is highly recommended that you find a knowledgeable lawyer to represent you if you have been charged with homicide by vehicle.
YOUR BEST DEFENSE AT AN IMPORTANT TIME:
Your best defense begins with the defense of the underlying DUI charge or reckless driving charge or the minor traffic offense (in case of misdemeanor vehicular homicide). You need a lawyer that will not assume guilt just because there is a death. The State has to prove that you in fact caused the death of another through your actions. You must actually be responsible for the accident. In addition, actual impairment (or a major traffic violation) must be proven in order to make the offense a felony.
DEFENSES TO VEHICULAR HOMICIDE IN GEORGIA:
Georgia DUI defenses are the first basis for a defense to vehicular homicide. A death alone does not mean a person is responsible. The State of Georgia needs to prove the DUI charge beyond a reasonable doubt, and it is the State’s burden to prove the underlying major traffic offense such as the DUI charge.
The second defense to vehicular homicide is causation. Even if the State of Georgia can prove the DUI or the major traffic offense, they still have to prove that but for that offense the person would be alive. The prosecutor must prove the traffic offense or DUI caused the death. The State has to also disprove the contributing negligence of the decedent did not cause his own death or at least contributed to it. In essence, the other driver was responsible for his own death regardless of the DUI driver.
Another option is negotiating to get a felony charge of vehicular homicide reduced to the lesser-included offense of misdemeanor vehicular homicide. The prosecutor has a great deal of discretion in the treatment of your vehicular homicide charges and case, that is why it is vital to negotiate early on. If you find yourself faced with a vehicular homicide charge, you need an experienced lawyer to guide you.
WHAT ARE NOT DEFENSES TO VEHICULAR HOMICIDE IN GEORGIA:
An argument that the driver was not acting maliciously or with malice will not be accepted by the court. Georgia law does not require that the driver act with malice or with the intent to kill someone while driving. They will be found guilty if they violated one of the other traffic laws, not whether or not they were found to have violated them maliciously.
Some people argue that the other driver was also at fault; therefore, they should not be guilty of homicide by vehicle. If their actions did not contribute to the accident or death of the victim, then they will not be deemed at fault.
In addition, Georgia courts have found a suspect guilty of homicide by vehicle even if they were not driving or in the car. In the case of Guzman v. State, 262 Ga.App. 564 (2003) a man gave his 14-year old son beer and the keys to his car, knowing the minor was about to drive. The suspect was found to be part of the underlying crime of drinking and driving and that his actions substantially contributed to the deaths of the victims. Therefore, he was convicted of first degree vehicular homicide.
For DUI arrests made on or after July 1, 2017, a person whose license is subject to an administrative suspension for a DUI arrest (refusal or breath test case) will now have a choice on how to seek to protect your right to drive, when facing an administrative license suspension for a violation of the Georgia implied consent notice.
Option One: Appeal
If you are arrested for driving under the influence and the officer issues the 1205 form, you will now have 45 (not 30) days on a temporary driving permit pursuant to O.C.G.A. Section 40-5-67, but you now have 30 calendar days (not 10 business days) to opt for one of two methods to avoid an administrative license suspension hearing. One option is the same as under prior law, which is to seek a hearing under O.C.G.A. section 40-5-67.1. There is still a $150.00 filing fee to request the administrative license suspension hearing. The issues addressed in this hearing are as follows:
If you request an appeal hearing with a 30-day letter or in person at a Georgia DDS facility, you will have waived your right to an Ignition Interlock Device Limited Permit. See Below.
The Georgia Office of State Administrative Hearings presides over Georgia administrative agencies. One of these administrative agencies is the Georgia Department of Driver’s Services. This is the agency that issues driver’s licenses in the State of Georgia. This is a completely separate court from the court where your criminal case will proceed.
After the Department receives a request for an administrative hearing, the Department will place the suspension on hold until the scheduled date of the hearing. During this time, you will have the same driving privileges you had before your license was taken. After the Department receives a timely request for an administrative hearing, the Office of State Administrative Hearings should set the date for the administrative hearing to take place within 30 days. Do not be too upset if your hearing is not held within that time frame; after all, you remain “street legal” in the meantime.
It is not always necessary for you to appear at the administrative hearing if your attorney appears on your behalf. If no one appears on the licensee’s behalf, the suspension will be upheld, and the suspension will begin as soon as the administrative law judge issues an order. If the arresting officer or the breath testing officer fails to appear, then the suspension is generally set aside for lack of a necessary witness.
If all the parties appear, then the administrative law judge (a lawyer employed by the Office of State Administrative Hearings) will hear the issues and make a determination or ruling (usually within five calendar days), and this ruling will be sent by mail. The issues at the administrative hearing are whether the arresting officer had reasonable grounds to believe the client was driving under the influence, the person was lawfully placed under arrest, the officer property read the Implied Consent warning, and the driver either refused the State-administered test or the test result was at or above the per se limit.
The burden of proof is on the Department, and standard of proof is the preponderance of the evidence. Preponderance of the evidence means it is more likely than not that the requirements set forth in the preceding paragraph have been met. This is a much lower standard of proof than the criminal standard of proof beyond a reasonable doubt.
Unfortunately, there are attorneys who tell their clients not to bother with the administrative hearing because they cannot be won. While these hearings are difficult to win, it is not impossible. I do get many clients’ licenses back after successfully challenging the suspension. Any attorney who advises you not to request the hearing and challenge the suspension should be avoided at all costs. The administrative hearing is the opportunity to cross-examine the officer under oath to discover the weaknesses or strengths of the government’s case against you. Not challenging the suspension and cross-examining the officer at the hearing is the equivalent of not reading the police reports. There is a limited – very limited – category of cases where it may be in the client’s best interests to ask the officer to withdraw the administrative suspension in exchange for a guilty plea, but this decision should be made only after all the available evidence regarding the case is reviewed. Otherwise, it cannot be emphasized strongly enough that, if you are serious about fighting the case, it is imperative to have this additional opportunity to cross-examine the officer under oath.
Option Two: The Ignition Interlock Device Limited Permit Option (IIDLP), authorized by O.C.G.A. Section 40-5-64.1
Under this new option, you have to apply within 30 days of receiving notice of a license suspension (the DDS 1205 Form) for an Ignition Interlock Limited Device Permit. The filing fee for this permit is $25.00. You also must surrender your license, and must execute an affidavit attesting that the administrative license suspension hearing afforded under Section 40-5-67.1 is waived. The interlock permit is good for one year. At the end of that year, the cost to renew the permit is $5.00 and the renewed limited permit is valid for only two months. The limited permit may be renewed only one time after such person is eligible for reinstatement. This 60-day extension was to cover any oversight of a person to reinstate or due to lack of funds to reinstate.
On a per se DUI case, you must have the Ignition Interlock installed within 10 days of issuance of the permit and must have the device on your car for a period not less than 120 days. Additionally, you may not drive any motor vehicle that does not have the Ignition Interlock Device on it. If you win the per se, get the case reduced or dismissed prior to 120 days, the permit is revoked and your license shall be reinstated without a fee. Furthermore, the driver’s license suspension is terminated and the suspension is deleted from your driving history.
On a refusal case, you also must have the Ignition Interlock Device installed within 10 days of the issuance of the interlock limited permit (IIDLP) and again you cannot drive any motor vehicle that doesn’t have the Ignition Interlock Device on it. The big difference is that you must install and maintain the IDD for a period of 12 months, and if you win the refusal case, get it reduced or dismissed prior to the 12-month period you must have the IDD on your vehicle for the balance of the 12 months.
The IIDLP will be revoked if you are convicted of violating any state law relating to the movement of a motor vehicle; driving a motor vehicle in violation of an ignition interlock limited permit; conditions (new misdemeanor offense) and tampering with the ignition interlock device. The notification of revocation will be by regular mail to your last known address. A first revocation will prevent you from being eligible to obtain a driver’s license for six months from the date of surrender of your license, and the second revocation suspension period is a lifetime suspension; however, you will be eligible for reinstatement of your driver’s license after two years. If the IIDLP is revoked or if the Department of Driver Services refuses to issue you a limited permit, you can apply for a hearing before the Office of State Administrative Hearings if filed within 30 days.
Under the IID permit, a person can drive for the following reasons:
A person cannot obtain the Ignition Interlock Device Limited Permit if they are under the age of 21; have a DUI conviction on their record with the past 5 years as measured from the date of arrest; are not currently licensed to operate a motor vehicle in the State of Georgia or hold a commercial driver’s license (available with temporary downgrade of CDL to non-commercial privileges). The IIDLP is subject to an administrative license suspension for involvement in a traffic accident resulting in injuries or fatalities even before conviction. The IID driver need not have alcohol or drugs involved either. Further, the IIDLP is subject to suspension, revocation, or cancellation for any loss of driving privileges “action” as contemplated in O.C.G.A. Section 40-5-64.1 (e.g., nonpayment of child support).
The new law allowing IIDLP also provides that if the IIDLP is revoked for any reason, the first-time revocation triggers a 6-month loss of all driving privileges after surrender of the permit, even if this occurs in the 11th month of having the IIDLP. Any second offense of an IIDLP triggers a 2-year hard suspension. So, having the IIDLP is not without risks and drawbacks.
Under O.C.G.A. Section 40-5-76, the judge in an accountability court may issue the IIDLP in accordance with O.C.G.A. Section 40-5-64.1 if the defendant’s driver’s license is supposed to be suspended pursuant to O.C.G.A. Section 40-5-75. This special power of an accountability court will sometimes justify entering the DUI Court Program.
If you elect for the IIDLP, you will receive credit towards the period of suspension if convicted for driving under the influence pursuant to O.C.G.A. Section 40-5-67.2(b); however, both a reinstatement fee to remove the Ignition Interlock Device Limited Permit and license fee will apply. For reinstatement of your license after the IIDLP, you must successfully complete the terms of the monitoring and $100.00 ($90.00 by mail) as an interlock permit restriction removal fee.
The administrative license suspension period/reinstatement remains the same as before; however, under O.C.G.A. Section 40-5-64(e), the limited driving permit may be renewed only one time after the person is eligible to reinstate his or her driver’s license. The new change in the law prevents a client under the age of 21 from continually renewing their permit so that they can still drive and get credit for any suspension if they are subsequently convicted for driving under the influence.
An Ignition Interlock Device is a breathalyzer connected to the ignition of a vehicle. If alcohol in any amount is detected, the IID prevents the vehicle from starting. IIDs require samples before and during the car ride, to ensure the driver has consumed no alcohol in the course of driving. If the device yields a positive reading, it logs this reading and the failure will be reported to the driver’s probation officer. If the driver fails to provide a sample or tests positive in the course of a ride, the car may start an alarm (flashing lights, honking horn) until the ignition is shut off. Contrary to popular belief, the engine will not stop if the device detects alcohol while the vehicle is in motion. This would be counterproductive to the goals of an IID, as it would create unsafe driving conditions.
Every state in the union has laws permitting ignition interlock devices as sentencing alternatives in DUI cases. The driver is responsible for the costs associated with the IID. They are usually rented out instead of purchased because they are only required for a set amount of time (which varies in duration depending on the circumstances of the offense). Normally, the driver will make an initial payment between $100.00 and $200.00 to the interlock provider, and then pay a monthly rental fee of about $70.00. There may be additional costs for maintenance or calibration, ranging $60.00-$80.00 monthly. The driver must also finance the installation of the device. They could incur additional fees if they have a newer vehicle whose manufacturer has not yet released wiring information for the vehicle. Bear in mind that some auto shops may refuse to install an IID in luxury or classic cars, for fear of damaging an expensive or rare vehicle. If you need to have an IID installed, be sure to call ahead and fully brief the auto shop on the year, make and model of your vehicle. The cost of installation averages $70.00-$150.00, depending on the vehicle. It should take about 2 hours to install.
The interlock device works by interrupting the signal from ignition to the starter until an acceptable breath sample is provided. The accuracy and reliability of IIDs have increased over the years, however, they are not infallible. Modern devices use ethanol-specific fuel cell sensors, which are sensitive not only to drinking alcohol but other types of it as well.
IIDs are imposed on drivers who have had a second DUI conviction within a 5-year span. They will be required to install the device for 12 months after a 4-month hard license suspension, during which they cannot drive at all. The driver will be eligible to apply for a limited permit after the device has been installed. However, their license is still considered suspended as the formal suspension period is 18 months. For the 2 remaining months, after the 12-month limited permit with an IID period, the driver may remove the IID and drive exclusively with their limited permit. Because the IID is financed by the driver themselves, the court may choose to waive the IID requirement in cases of financial hardship.
If you have an IID installed, it is critical that you do not tamper with it. They are equipped with features to ensure they will not be tampered with or manipulated. Do not have someone else blow into the IID to start your vehicle, as most IIDs are equipped with cameras for this exact reason. Tampering with your device in any way could result in further criminal prosecution. (Fun Fact: In one recorded instance, the camera mounted on an IID was able to help officers identify a car thief).
Records of the sensor results are printed out at 30, 60 or 90-day intervals typically, to be reviewed by authorities. During a DUI arrest, you are only at fault if your blood alcohol content was at or above the legal limit, .08. However, after a conviction and the installation of an IID, if the breathalyzer registers any amount of alcohol, meaning any amount, meaning any amount above 0.00, this will be considered a failure – the vehicle will not start, alarms may sound if the vehicle is already in motion, and the interlock provider will forward the result to the driver’s probation officer. DUI probationers are prohibited from consuming ANY alcohol whatsoever, so if the device registers the smallest amount – even those too small to cause impairment, this is considered a probation violation. There is a strong chance that additional sanctions will be imposed on the driver if the device registers a failure. It is critical to remember the probation officer has access to all recorded activity on the device and interlocked vehicle’s electrical system. The officer may file to revoke all or part of the individual’s probation. In some cases, a warrant may be issued for the probationer and they would be held in custody, pending a hearing. A person may wait up to 30 days in jail in certain Georgia counties. Bail is rare in cases involving probation violations. Given the consequences, it is simply not worth it to consume alcohol if you are on probation. The risk is great and the punishment potentially severe.
Ignition Interlock False Positives
Be wary of the possibility of a false positive. Although rare, there have been recorded instances in which an IID reported a false positive. The device cannot tell the difference between isopropyl alcohol (found in hand sanitizers, hand wipes, soaps, mouthwash, and gels) and ethyl alcohol (the type in alcoholic beverages). Do not use these items prior to inputting a breath sample. Clearly, mouthwash is one of the biggest culprits for false positives on IIDs. They may also register false positives for people on ketogenic diets, or those who have just eaten spicy or yeasty foods or used Chloraseptic spray. A good rule of thumb is to avoid consuming anything at all at least 20 minutes prior to blowing into an IID. Because the false positives are rare, the court may have a hard time believing this defense.
Attorney Jeffery C. Talley, Criminal Defense Attorney serving clients throughout North Georgia.
Hours: Monday-Sunday 8am-7pm