Can a DUI be Dismissed in Georgia?
There is a misperception that DUI charges are cut and dry. People who believe this think that DUI defense is more about damage control for punishment than actually beating the DUI charges themselves. The problem with this perspective is that’s what happens if you just take a look at the surface of a case, or when you look at a snowflake from a distance. All snowflakes look the same from a distance; but if you look up close, no two are alike. F
The first step to beating a Georgia DUI is breaking down your DUI case into 6 pieces or by analyzing the problem from the initial principles: (1) The Traffic Stop, or whether the officer had articulable suspicion for an investigative detention; (2) the roadside encounter or DUI detection and Field Sobriety Evaluations; (3) whether the officer had probable cause to make a DUI arrest; (4) whether the office properly read your Implied Consent rights for State Administered Chemical tests; (5) whether you actually or voluntarily consented to a State Administered Chemical test; and (6) the keystone of DUI defense -Reasonable doubt. Reasonable doubt is less than a mathematical certainty but near certitude. If you think the accused is guilty, the accused is not necessarily guilty beyond a reasonable doubt. You must know that the accused is guilty of DUI either by being less safe due to consuming alcohol before or while driving, or per se DUI by being over the legal limit within 3 hours after driving.
Every Georgia DUI arrest has potential legal and factual issues that could result in a dismissal or a not guilty verdict. An experienced Atlanta DUI lawyer must investigate your case thoroughly to determine if any potential DUI defenses apply to you. A motion hearing on the suppression of illegally obtained evidence is absolutely crucial to any contested Georgia DUI case. It is borderline malpractice for an attorney not to have a motion hearing in a DUI case. First, you never really know what a witness is going to say or do until you put them on the stand and question them under oath. Georgia law does not require the prosecution to give the Defendant any evidence until 10 days prior to trial. The police do not have to speak to you prior to being subpoenaed and sworn under oath on the witness stand.
Many lawyers will claim that the Defendant will be punished for having a motion hearing because there is a potential for the prosecutor to withdraw the plea offer. Though theoretically possible, I find that this is rarely the case in practice, and if the client is properly prepared before court with a Drug and Alcohol Evaluation, DUI school completion certificate and some community service hours, a non-negotiated plea with the Judge is often better than an negotiated plea with the prosecutor anyway.
A thorough case evaluation usually involves requesting documents from the government through discovery, open records act, or freedom of information act requests. You do not always get what you ask for but the worst thing that can happen is that they say no. Reviewing the police reports, incident reports, dash cam video tapes, body cam video tapes and 911 dispatch tapes, viewing the scene on google maps and on google maps street view and attempting to speak with the witnesses prior to trial or hearing is critical in building a successful DUI defense.
This means that hiring a qualified, trained, experienced and hardworking Atlanta DUI Attorney is crucial!
This list of 44 ways we have beaten DUI cases.
- ILLEGAL STOP/ARTICULABLE SUSPICION: Police cannot stop your car unless they have reasonable and articulable suspicion that you violated a criminal law or traffic law. Similarly, police cannot detain you on the street unless they have an articulable suspicion of criminal activity. This requires more than a mere hunch and they must be able to say what crime or traffic violation they think you have committed before they stop you.
- ANONYMOUS TIPSTERS: A vehicle cannot be subjected to a traffic stop simply because an unknown person calls in that the driver is drunk or driving erratically. For a tip to be the basis of an investigative traffic stop, the tip must either give enough specific details that the information can predict future criminal activity or be corroborated by police prior to the stop.
- STANDARD FIELD SOBRIETY EVALUATIONS ARE MEANINGLESS: Some people are just uncoordinated, out of shape, elderly or infirm. According to National Highway Traffic Safety Administration (NHTSA) police training manuals, the 3 standardized field sobriety evaluations range from 65% to 77% accurate. The 30 second one-leg stand test is 65% accurate, the horizontal gaze nystagmus is 77% accurate, and the 9-step walk-and-turn test is 68% accurate. The eye test cannot exclude the over 43 different types of nystagmus caused by conditions other than alcohol consumption. The Standardized Field Sobriety evaluations are not designed for people who have medical conditions, neck or back injuries, middle ear problems, who are in heeled shoes over 2 inches, who are overweight, or who are over 65 years old., If these evaluations are not performed exactly as trained, their results are meaningless because the tests are based on strictly controlled validation studies where the methods and testing are highly regulated.
- NON-STANDARDIZED FIELD EVALUATIONS ARE MEANINGLESS: There is no relationship between touching your finger to your nose, saying the alphabet, counting with your fingers, or counting backwards and alcohol impairment. Neither the National Highway Transportation Safety Administration, the Georgia Peace Officer Standards and Training Council nor the medical community has established any correlation between these tests and alcohol impairment.
- BREATH TESTING IS INACCURATE: It is commonly accepted that a single breath test is unreliable because of sample variance. Georgia DUI breath testing has acknowledged limitations including a +/- 25% variance of +/- 0.02 of the 0.08 per se legal limit for alcohol DUIs, non-specificity for ethanol, unaccounted for breath temperature variations, unaccounted for variations in the partition ratio, uneven alcohol distribution in the blood prior to peak alcohol levels are reached, gender bias, radio frequency interference, interference from acetone, residual mouth alcohol, solvents (benzene, toluene, xylene, ethyl acetate, and methyl ethyl ketones), alcohol vapor in asthma inhalers, confusion with “ol” alcohols like menthol and sorbitol, alcohol in mouth wash, breath mints, breath strips, and menthol smokeless tobacco products., dental problems, etc. These machines have confused Publix sheet cake and recent sips of beer with DUI level blood alcohol.
- JAIL VIDEOS: Many jails, police stations and other police facilities videotape DUI defendants while in police custody, including when they are read testing rights and submit to breath tests or blood tests, failure of the police to adhere to policy and testing procedures, evidence of clear speech, clear eyes, good balance, police threats and intimidation, illegal questioning, coercion, all in contradiction to police testimony from the witness stand.
- POLICE IN-CAR VIDEOS: most police agencies video arrests from the police car with cameras located under the rear view mirror commonly referred to as dashcam, recording normal driving instead of impaired driving, normal field evaluations, illegal arrest, improper implied consent rights which must be given prior to a breath test, misinformation, unreasonable coercion and threats, hope of benefit, which can prove the police are lying.
- POLICE BODY CAM VIDEOS: most police agencies arrests are captured on body cameras worn on police uniforms, vests or hats. These body cameras can record normal behavior, normal field evaluations, illegal arrest, improper implied consent rights which must be given prior to a breath or blood test, misinformation, unreasonable coercion and threats, hope of benefit, which can prove the police are lying.
- STATUTORY SPEEDY TRIAL DEMANDS: Georgia state law requires that all criminal defendants be given a speedy trial within two terms of court of their demand. If the trial is delayed beyond this time period or for an unreasonable prior due to delays of the court or prosecutor, the charges must be dismissed.
- CONSTITUTIONAL SPEEDY TRIAL DEMANDS: The U.S. and Georgia Constitution require that all criminal defendants be given a speedy trial within a reasonable time demand if timely asserted. If the trial is delayed beyond this time period or for an unreasonable prior due to delays of the court or prosecutor, the charges must be dismissed.
- CRIME LAB BLOOD TEST INACCURATE: Crime lab procedures are sometimes ignored and short cuts are taken that produce questionable blood test results. Errors include: sample switching; expired blood collection kits; blood mail unrefrigerated in the U.S. postal service for weeks, improper calibration, and substantive coelution. Coelution is the process whereby two or more chemical compounds exit from a chromatographic column at the same time, making separation and identification difficult.
- HOSPITAL BLOOD TEST INADMISSIBLE: Hospital blood tests are for diagnostic purposes and labs do not meet forensic guidelines for criminal trials. Hospitals test serum and not whole blood. Further, collection and sampling techniques are not approved by the crime lab.
- BREATH TEST OPERATOR CREDENTIALS: Georgia Law requires that Breath Test Operators be certified and possess a valid, unexpired operator’s license (licenses are only good for 4 years), or the breath test results can be excluded from evidence.
- PORTABLE BREATH TESTING DEVICE NOT ON APPROVED LIST: Portable breath testing instruments must be approved by the Georgia Bureau of Investigation Division of Forensic Services to be admissible in court.
- DUI REQUIRES PROOF OF DRIVING: You cannot be convicted of DUI unless there is proof beyond a reasonable doubt of driving or that the vehicle moved.
- INDEPENDENT WITNESSES: Witnesses. Witnesses. Witnesses. Family members, bar patrons, waiters, bartenders, managers, friends, doctors, nurses, emergency medical technicians, ambulance drivers, other drivers, firefighters, restaurant/bar workers can be vital to proving a defendant is not impaired by alcohol.
- MIRANDA RIGHTS: Statements made by a defendant in custody are not admissible in court unless Miranda Warnings were given prior to the statement.
- FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED: Police must follow their training exactly when performing field sobriety tests or the results are meaningless.
- OFFICER’S PRIOR DISCIPLINARY RECORD: A police officer’s past can affect his believability in court.
- PORTABLE BREATH TEST NUMERICAL RESULTS ARE INADMISSIBLE: Georgia law prohibits the use of portable breath testing results other than positive or negative for the mere presence of absence of alcohol. The numerical result is inadmissible.
- BREATH TEST IMPROPERLY ADMINISTERED: The manufacturer of the Intoxilyzer 9000 breath testing device requires a minimum of two tests to consider the results reliable.
- FAILURE TO CONDUCT A PRE-BREATH TEST OBSERVATION PERIOD: Georgia breath testing training procedures requires that a suspected DUI driver be closely monitored for a minimum of 20 minutes prior to a breath test sample to exclude extraneous alcohol and obtain a valid result.
- EXPERT WITNESSES: Expert witnesses can discredit the breath tests results, blood tests results and field sobriety tests.
- MEDICAL AND HEALTH PROBLEMS: - Medical problems with legs, arms, neck, back and eyes and diabetes can affect the validity of field sobriety evaluations.
- BAD WEATHER / HEAVY TRAFFIC / FLASHING LIGHTS:Bad weather, heavy traffic, or flashing lights can all contribute to driving ability or field sobriety performance.
- LACK OF PROBABLE CAUSE TO ARREST:Police must have probable cause of impaired driving ability to arrest you for DUI. Merely proving that the defendant consumed alcohol is not enough.
- INCONSISTENT STATEMENTS BY POLICE OFFICERS: Police often testify inconsistently at different hearings, resulting in opportunities to discredit their testimony and win your DUI arrest.
- DRINKING AFTER DRIVING STOPS: The State must prove that the breath result or signs of impairment were caused by alcohol that was consumed before or while the defendant was driving. Post-driving drinking will cause the test results and on scene police observations to be tainted and irrelevant.
- LIMITATIONS OF BREATH TESTING FOR ALCOHOL: There are many alcohol substances which be confused as alcohol from drinking on the Intoxilyzer 9000 or the Georgia DUI Breath Test machine such as asthma spray containing alcohol vapor, cough drops, menthol smokeless tobacco, paints, fingernail polish and Public sheet cake. These items can cause the breath results to be invalid and inaccurate.
- BREATH MACHINE IMPROPERLY OPERATED: Specific procedures, methods, and protocols must be followed for a breath result to be valid and admissible in court.
- POLICE DISPATCH RECORDINGS: One of the most underutilized pieces of evidence is police dispatch recording. Police stops are recorded on 911 calls or police radio traffic. These tapes can be used to prove your case and win your DUI.
- BREATH TEST RIGHTS: If a police officer makes any misleading statement regarding the consequences of taking or refusing a state administered test under the implied consent law, the 1-year license suspension must be reversed and removed from the driver’s record, and any evidence of the test must be excluded from the criminal trial.
- STATUTES OF LIMITATIONS: A misdemeanor charge of DUI must be stamped on the uniform traffic citation or an accusation must be filed within 2 years of the date of offense or else the prosecution is barred.
- CIRCUMSTANTIAL EVIDENCE: Circumstantial evidence, evidence that merely implies a fact, is not sufficient to prove a DUI case unless all circumstance evidence is consistent with guilt and excludes every other possibility but the guilt of the accused.
- FAILURE TO CALIBRATE THE BREATH TEST MACHINE QUARTERLY: The Georgia state administered breath test on the Intoxilyzer 9000 must be calibrated at least quarterly as required by GBI DOFS rules. Failure to regularly inspect and calibrate the breath test machines by Georgia Implied Consent Area Supervisors can be used to discredit breath test results with a judge or jury.
- ILLEGAL ROADBLOCKS: Police DUI Roadblocks are an exception to the 4th Amendment prohibition of unreasonable searches and seizures. DUI roadblocks must meet Constitutional minimum standards. DUI roadblocks must be approved by a supervisor at the programmic level of police administration and not by officers in the field.
- FULL INFORMATION: People arrested for DUI who submit to blood or breath alcohol tests are entitled to full information regarding these tests upon request by them or their DUI attorneys or the tests can be excluded or trial continued.
- ODOR OF ALCOHOL: The mere presence of alcohol is insufficient to convict a person of DUI.
- REFUSAL OF COMPELLED BREATH TESTING: The Georgia Constitution gives every person the right not to provide evidence against themselves, including field tests and breath tests. The refusal of these tests is also not admissible.
- ACTUAL CONSENT FOR A BLOOD TEST: The 4th Amendment of the U.S. Constitution requires actual consent for a blood test since a blood test is considered a search under the Fourth Amendment.
- BLOOD TEST MARGIN OF ERROR: All scientific testing is subject to measurement uncertainty. A scientific test, such as a blood test, can only state a range within which a result will fall depending on the how many standards of deviation are used. Sometime that range falls below the legal limit, which is excellent reasonable doubt.
- APPEARANCE AND DEMEANOR: By their deeds ye shall know them. Sometimes the accused just looks sober. If it doesn’t waddle, doesn’t quack, doesn’t have feathers and doesn’t have a bill, then it does not matter that some tests say it is a duck, when you can clearly see it is not.
- REASONABLE DOUBT: The old fashion way to beat a DUI is to have a jury trial or a judge trial and demonstrate that the State cannot prove their case beyond a reasonable doubt. A criminal defendant is presumed to be innocent until proven guilty. The defendant enters upon the trial of the case with a presumption of innocence in his/her favor. This presumption remains with the defendant until it is overcome by the State with evidence that is sufficient to convince the trier of fact beyond a reasonable doubt that the defendant is guilty of the charged offense. Georgia law provides that no person should be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt. The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the defendant whatsoever, and the burden never shifts to the defendant to introduce evidence or to prove innocence. However, the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty. A reasonable doubt means just what it says. A reasonable doubt is a doubt of a fair-minded, impartial juror honestly seeking the truth. A reasonable doubt is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, or a conflict in the evidence. Although a reasonable doubt does not require mathematical certainty, it does require near certitude. If a juror’s or judge’s mind is wavering, unsettled, or unsatisfied, then that is a doubt of the law, and Georgia law requires that you must acquit the defendant. But, if that doubt does not exist in the juror’s minds as to the guilt of the accused, then you would be authorized to convict the defendant. If the State fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.
- JURY NULLIFICATION: The jury is the conscious of the community. If the jury believes that a Defendant has violated the letter of the law but not the spirit of the law, or that a conviction would not be just, right or fair, then the jury may acquit the Defendant anyway.
To learn more contact us at 404–333–0706 or by email at [email protected].