Category Archives: Arrest issues

A New Hope for Removing DUI Charges From Your Record

If you have been arrested and charged with DUI on or after July 1, 2012, there could be new hope in having the DUI charge removed from your record.  Prior to July 1, DUIs were almost never eligible for expungement; however, Senate Bill 1176, signed into law on May 2, 2102 could change the rules.

To understand the importance of expungement, you must first know what the term means in Georgia.  The new law’s language refers to the restricting of a person’s criminal record.  Restricting access to your record is used interchangeably with the term expungement within this law.  Restricting, as defined by the law, means that “the criminal history information of an individual relating to a particular charge shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment … and shall not be disclosed or otherwise made available to any private persons or businesses….” This means that while courts and law enforcement can always view your whole record, the outside (public) world will not have access to charges that have been restricted.

Under Georgia’s pre-2012 law, DUI charges could not be removed, erased, or hidden from your record unless you happened to be accepted into some diversion or other pretrial program.  I have not handled a case in the Metro Atlanta area where this is possible.   Prosecutor’s offices are against any type program that allows DUI charges to be expunged.  Not even a successful stint in DUI Court will enable expungement.

With the new law comes an opportunity to have your DUI erased from your record if all of the charges were dismissed or nolle prossed (not prosecuted by the prosecuting agency) or if you are acquitted of all charges by a judge or jury.  This change is huge.  While prosecutors are not likely to dismiss your case to help you have charges expunged, they cannot control a verdict at trial.  In other words, you and your lawyer now have a very strong reason to go to trial in most DUI cases.  According to the new law, if you are found not guilty of the charges, you can apply to have access to your record restricted.  The prosecutor would then have the burden of showing that your record being sealed is contrary to the public’s best interest under certain circumstances.

It is important to note that SB 1176, as signed into law, does not allow restriction of your record if you plea to a reduced or lowered charge like a reckless driving, or if the prosecutor could not introduce evidence that was excluded or suppressed by the trial judge.  Additionally, if you are acquitted of the DUI, but still convicted to a charge from the same arrest, it appears that the DUI would not be eligible for expungement.

I field many calls from distressed people who pled to a DUI or even a lowered charge and are now experiencing the impact of the conviction on their record.  With the passing of Georgia’s new law, a door is opened to those who have pending DUI cases.  While the best strategy for defending your case will depend on the particular facts and circumstances surrounding your arrest, this new law gives hope that if you are acquitted of all charges, you can have your DUI removed from your record.  If you have a DUI or similar charge, call me today to discuss this possibility in your case.

Georgia Warrant Application Hearings

In Georgia, an individual may attempt to take out an arrest warrant against you if they can show that you have violated a particular law.  Often times, this situation arises when there is a dispute between two parties and law enforcement simply cannot obtain enough evidence to arrest one person over the other.  A common scenario is where there is a domestic dispute where by the time the police arrive, there are two different stories and not much evidence about what happened.  Another situation is where one side’s story is simply not believed, or looks rather weak to an investigating officer.  In these situations, law enforcement will usually advise the parties that anyone can apply for their own arrest warrant in the county’s magistrate court.

To start the process, the party seeking to take out an arrest warrant must fill out supporting documentation in the county magistrate court.  The application will usually contain information about the subject, as well as a brief description of the charges sought and the events that lead to the warrant application.  If a warrant is applied for against you, you are entitled to a hearing before the warrant is issued.  This is commonly referred to as a warrant application hearing.  At this hearing, the Judge will hear from both sides and then decide whether probable cause exists to issue an arrest warrant.

You are entitled to have an attorney at these hearings, as they are criminal in nature.  Additionally, you can subpoena witnesses to testify on your behalf.  You can testify, or elect to remain silent.  It is the applicant’s burden to prove  there is probable cause to arrest you for what they are alleging you did wrong.  However, if the Judge does find probable cause, there will be a warrant issued immediately- either felony or misdemeanor depending on the charges- and you will likely be taken to jail in order to post a bond until further court dates.  In the event that a party does not show up, the Judge will either dismiss the warrant (if the applicant does not show), or issue the warrant against you (if you do not show and the applicant shows probable cause).

Being a defense attorney, I have handled many of these hearings.  I see warrant applications ranging from stolen car/pet/phone issues to aggravated assault and terroristic threat charges.  Remember, depending on the alleged violation, the charges could be felony charges that result in the local District Attorney’s office taking over prosecution of the case.  Even where there are likely misdemeanor charges, it is very important to prepare a defense in advance of these hearings.

If you have received notice that someone is applying for a warrant against you, call me today to discuss your particular situation.  I will give you my prospective on the potential charges and speak with you about building your best defense.  Often times warrant application hearings can be won and an arrest and criminal record avoided- however, a well prepared defense is vital in these situations.  Call or email me today to discuss the facts of your particular case.

Evan’s Analysis of the Hines Ward DUI Arrest

Hines Ward DUI arrestIn a story reported by the associated press, Pittsburgh Steelers wide receiver Hines Ward was arrested in Atlanta, Georgia on Saturday, July 9, for Driving Under the Influence (DUI), after failing field sobriety tests administered at the roadside.  Ward, who played high school football in Forrest Park, Georgia, was first noticed by a MARTA (Metropolitan Atlanta  Rapid Transit Authority) officer  for apparently failing to maintain his lane and running over a curb in the Doraville, DeKalb County area.  After witnessing Mr. Ward’s driving, the MARTA officer pulled the star wide receiver over, and called an officer with the DeKalb County STAR team, the county’s elite DUI taskforce.  Upon arrival, Officer Catalano with STAR administered standardized field sobriety testing, claiming that Ward failed all three standardized tests, and showed clues of impairment on at least two other tests commonly used by officers- the PBT, or preliminary breath test, and the alphabet test.

The Hines Ward case will rely largely on the video evidence in the case.  DeKalb STAR team officers have video equipment in their vehicle, and are wired with microphones to capture conversation during DUI arrests.  The trend of wiring up officers to bolster DUI cases is spreading throughout the Metro-Atlanta area, and I am seeing more and more encounters in cases I handle being captured on video.  Video evidence in a case, such as the Hines Ward case, can cut either way.  The video is the single most neutral piece of evidence.  Video simply captures what it sees and hears, without putting any spin on the facts.  In Ward’s case, you have a well-trained DUI officer claiming that Mr. Ward failed numerous sobriety evaluations.  While technically this may very well be true; a video of the arrest has the potential to allow jurors and the public to see how Mr. Ward was truly acting and performing on these evaluations.  While performing one of the standardized tests, the “walk and turn” test, subjects only need to make two mistakes in order to ‘fail’ the test.  With close to 100 ways to commit error on this “walk and turn” test, a video can be helpful in allowing a jury to see the true picture of how well someone was performing these tests, dismissing the unfair and bias scoring scale used by law enforcement.

Mr. Ward’s defense will almost certainly examine the circumstances behind the   initial officer’s stop of his vehicle.  Anytime there are multiple officers involved in the stop of an automobile, yellow flags go up for an experienced DUI attorney examining the case.  Georgia courts are constantly revisiting issues dealing with police officer jurisdictional questions, and whether particular groups of law enforcement have the authority to make a stop or arrest.  In the Hines Ward arrest, the initial observations and stop of the vehicle were made by a MARTA transit officer, not a DeKalb County Police Officer.  This transit officer almost certainly has zero to minimal training in DUI detection and traffic law.  However, the Georgia courts seemingly bend over backwards to validate the stop of a DUI driver, and will likely find that if this MARTA transit officer was simply POST certified, that this is enough to allow him to make traffic stops, whether on or off MARTA property.  Georgia courts have recently held that POST certified officers have more latitude and authority to make arrests when they have witnessed a violation of law take place.  However, this initial stop and its validity will still play a part in the Ward defense.

Avoiding Extreme Insurance Premium Hikes Following Traffic Citations

Atlanta’s Channel 2 recently ran a story with consumer advisor Clark Howard discussing the costly impact of traffic citations on your auto insurance rates.  In his piece, http://www.wsbtv.com/news/28337152/detail.html video at http://www.wsbtv.com/video/28338890/index.html, Howard cites one study by insurance.com where drivers that have received a single traffic citation may see an average 18% increase in their insurance policy rates.   Accumulating three traffic citations can rocket your premiums by up to 50%, an effect you will live with for at least three years.  Even worse, according to the study, DUI charges can impact your insurance rates for up to 10 years.

While Howard suggests taking a defensive driving school, or raising your policy’s deductible in order to bring your policy’s rates back down, the most effective option is to limit you’re your insurance company sees in the first place.  Under Georgia law, traffic courts only transmit the final disposition of your case to the Georgia Department of Driver Services (DDS), which is the agency insurance companies pull their information from.  Therefore, hiring an attorney to defend your charges and navigate you through the local court system is always the smartest option in dealing with a traffic citation’s impact on your driving record and insurance rates.

For example, if you are pulled over for speeding at 86 mph in a 55 mph zone, like much of I-285, your insurance company will see the actual speed reported to DDS (86/55) and will see that you were assessed four points for the violation under Georgia law.  Even if you enter a “no contest,” or nolo contendre plea, insurance will still see your actual speed (86/55) and likely raise your rates on this fact alone, even though Georgia DDS will not assess you the points if it’s your first no contest plea in the past five years.  Having an attorney defend your case can often times result in a reduction of the actual speed transmitted to Georgia DDS.  Even if your attorney is able to secure a smaller reduction in your reported speed, say 75 mph in a 55 mph, it will still save you points and insurance money in the long run.  Any speeding citations reduced to less than 15 mph over the posted speed limit will not be transmitted to Georgia DDS at all, effectively saving you from insurance even knowing that you received the citation.  Your most cost effective option in handling a traffic citation in Georgia will almost always be to pay for a competent attorney up front to do everything possible to save you from paying out in the long run in increased insurance rates.

 

If the Cop Calls a Cab for You, Don’t Insist on Driving

I ran across an interesting story on the AP newswire out of St. Petersburg, Florida. A bar employee called the police when she heard an intoxicated customer talk about driving home. A police officer arrived at the scene and intercepted the drunk patron, calling him a cab and sending him on his way.

A few minutes later, the officer saw the cab return with the drunk patron, who got out then started to drive his truck home. The cop then arrested the driver and cited him for DUI.

The article did not discuss what happened when the driver was arraigned. Obviously, he will have a difficult time explaining his actions – hopefully he will have a creative lawyer.

156 DUI Cases in Chicago Dropped Because of Bad Policework

Over 150 DUI arrests by a decorated Chicago area policeman have been dropped because the police officer was caught falsifying arrest information.  Chicago police officer John Haleas, who had recently been honored for writing up the most DUI arrests in Cook County, has been indicted for perjury, obstruction of justice and official misconduct for lyin.  Apparntly, Officer Haleas failed to follow departmental procedure regarding the administration of field sobriety tests, breath tests and legally required warnings.

While most police officers are honest, hardworking and diligent in performing their duties. you have an absolute right question or challenge an arresting officer’s conduct during your DUI or other criminal arrest.  The Georgia legislature has put into place important safeguards to protect citizens against overzealous police officers and prosecutors.  Sometimes the state’s mistakes are not as significant as those of Officer Haleas.  However even minor deviations from procedure can provide you and your lawyer leverage to challenge an arrest, and can help in lawyer-prosecutor negotiations.

Thanks to Chicago DUI lawyer Ava George Stewart for posting information about Officer Haleas.

More on Horizontal Field Nystagmus Testing

I ran across this video from YouTube that actually demonstrates a HGN (horizontal gaze nyustagmus) field sobriety test.  The first minute or so of the video is a discussion about the test, but it then cuts to a video of an actual test.  As noted in our last post, there are many non-alcohol related conditions that can cause nystagmus, and there are numerous defenses to it as well.    

 

 

 

What Causes a Police Officer to Suspect You of DUI?

Have you ever wondered what signs of intoxication signal police officers to pursue a DUI investigation? Attorney Jamie Spencer from Austin, Texas writes in his Texas DWI Defense blog that signs of intoxication include

  • Odor of Alcohol: Strong, Moderate, Faint, None
  • Eyes: Bloodshot, Watery, Glassy, Dilated, Constricted
  • Speech: Mumbled, Slurred, Confused, Not Understandable, Mushmouthed, Stuttered, Fair, Good, Accent, Thick Tongued
  • Balance: Wobbling, Falling, Swaying, Unsure, Needed Support
  • Attitude: Excited, Hilarious, Talkative, Uncooperative, Profanity, Polite, Sleepy, Combative, Indifferent, Cooperative, Insulting, Cocky
  • Walking/Turning: Falling, Swaying, Staggering, Stumbling

Why are these signs important? While the State (i.e. police officer) has a certain amount of leeway to investigate drivers, that leeway is not unlimited. If the officer does not have reasonable cause to suspect that a defendant is under the influence, the arrest and subsequent evidence gathering can be attacked and possibly excluded.

Jamie writes that he will explore each of these factors in subsequent posts on his blog.

[tags] signs of DUI, right of officer to arrest me for DUI, challenge DUI arrest [/tags]

How Your Breathe Affects Blood Alcohol Breath Test Results

California DUI defense lawyer Lawrence Taylor cites several fascinating studies in his DUI blog suggesting that how you breathe can dramatically impact the blood alcohol reading generated by a breath test. For example, holding your breath for 30 seconds increased the blood alcohol content of your breath by over 15%. Hyperventilating for 20 seconds decreased the BAC by 10%.

In his post about breathing and breath tests, Attorney Taylor also cites a research study by a University of Washington Professor of Physiology who found that the last part of your exhalation has a higher alcoholic content than the first part, meaning that a police officer’s command to “blow harder” may very well result in a higher BAC reading on the breath test.

Georgia Courts have long rules that arrest scene breath tests are not admissable evidence. Mr. Taylor explains the science behind the reasons breath tests are flawed in another post on his blog. It would be interesting to know the psychological impact that a failed breath test has on a defendant’s subsequent decisions to admit to alcoholic consumption or to not assert his other available rights.

Breathalyzer and Alcosensor

What is the difference between the “Breathalyzer” and the “Alcosensor?” Is there is any realistic way to challenge these machines?

Answer:  The Alcosensor is the portable hand held breath testing device that is administered at the scene of the pullover.  The Intoxilyzer 5000 is the breath testing device that looks like a computer, and usually located at the precinct or jail and is the device which the state uses to prove that you have more than the legal limit of alcohol in your blood.  The results of the portable Alcosensor administered in the field is not admissable in court to prove that you have more than the legal limit of alcohol in your blood.  Remember, there are good challenges to both testing devices.