dui

A series of reports released by the Georgia Bureau of Investigation (GBI) detail how by year end 2015, all forensic breath test machines in Georgia will be CMI’s Intoxilyzer 9000 Series.  The move comes as the Intoxilyzer 5000 model is nearing 20 years as the exclusive breath test machine in Georgia.  According to reports, the average age of the current fleet of Intoxilyzer 5000s is 9.5 years old.  That’s right, almost 10 years old.  The decision to make the switch to the new 9000 model is a result of a selection and testing process that put the new 9000 up against two other machines: the Swedish made Evidenzer 240 and the Datamaster DMT Series machines.

The GBI’s plan includes phasing out the old 5000 models and introducing the new Intox. 9000 between January 1, 2013 and the end of 2015.  The GBI estimates a cost per machine of between $8,000-$10,0000 not including regular testing and calibration supplies.  While the new machines will apparently run on updated, Windows- based platforms and have a different internal configurations, the core testing principles will remain the same.

If you have questions, or want to find out more about this new breath test machine in Georgia, call my offices today.

Filed under dui, Intoxilyzer 5000 issues by  #

2012 Bench & Jury Trial Results (as of September, 2012)

 

STATE v. R.B.

DUI (x2), Jury Trial

Client was stopped at a roadblock where, according to officer, he failed all field sobriety tests, admitted to consuming 4 long island iced teas earlier in the evening, and told officer that he didn’t normally consume so much alcohol.  The video showed poor field sobriety performance by the client, but also showed client interacting well with officer before testing.  After being arrested for DUI, client was apparently breath tested on an Intoxilyzer 5000 and blew a .102 (over .08 limit).  At trial, the prosecution was unable to produce the actual breath testing slip, though the officer was allowed to testify to client’s test result and it had been noted on  both the traffic citation and in the officer’s typed report.  After approximately 90 minutes of deliberations, the jury acquitted the client of both charges- DUI less safe (the cop’s opinion on client’s impairment) and DUI per se (client’s alleged .102 test result).

STATE v. T.B.

Unlawful Passing, Bench Trial

Client was charged with unlawfully passing a school bus in Forsyth County, Georgia.  State’s evidence included testimony from bus driver identifying vehicle make, model, color, license plate and a general description of driver, to include gender and hair color.  State also claimed to have multiple children who witnessed the incident, but did not testify at trial.  After a bench trial, client was acquitted with the judge citing reasonable doubt in the State’s identification of driver.

STATE v. L.H.

Unlawful Passing, Jury Trial

Client was charged with unlawfully charged with passing a school bus in Forsyth County, Georgia.  During pretrial negotiations, State’s best offer was $1,000 fine and a no contest plea to the charge.  State’s evidence included eyewitness testimony from a Forsyth Sheriff Deputy who witnessed the client pass the bus.  Client admitted on video to Deputy that she passed the bus.  The State did not have the bus driver present for trial.  At trial, I used the affirmative defense of accident, citing the 2011 Olgivie case as support for charging the jury on accident, even though client was being prosecuted for a Title 40 offense.   After argument from both myself and the State, the judge did give the charge to the jury.  Jury acquitted the client after around 30 minutes of deliberation.

 

STATE v. H.R.

DUI Bench Trial/Motions

Client was charged with DUI less safe after a single car accident in Fulton County, Georgia.  After the City of Atlanta’s best offer was to drop the DUI to reckless driving, the case was bound over to Fulton County.  At motions, the State’s witness was an Atlanta P.D. officer who testified that client hit a phone pole, totaling car, and appeared intoxicated upon examination by the officer.  At motion to suppress, it was determined that the arresting officer neglected to read client Georgia’s implied consent notice.  After argument, the judge agreed with the Defense’s argument that the failure to read implied consent tainted the arrest, and dismissed the DUI charge.

 

STATE v. D.G.

DUI Jury Trial

Client was charged with two counts of DUI (per se & less safe) in Fulton County, Georgia.  The State’s evidence included having a video of the client’s traffic violation, as well as multiple field sobriety tests conducted by a DUI taskforce officer and a .104 Intoxilyzer 5000 test result.  Due to funding issues, the client was unable to retain any expert witness to challenge the field tests, or the Intoxilyzer result.  After deliberations, the jury acquitted the clients of both DUI charges and found him guilty of a charge of speeding, which was admitted during trial.

STATE v. B.M.

DUI Jury Trial

Client was charged with DUI less safe in Coweta County, Georgia.  The State’s evidence included field sobriety testing by Coweta’s leading DUI arrest trooper and the client’s alleged refusal of a blood test, though the client did tell the trooper that he would submit to a breath test.  After a one day trial, the jury acquitted the client of DUI.

 

STATE v. H.W.

DUI Bench Trial/Motions

Client was charged with DUI drugs- less safe in Fulton County, Georgia.  We had previously turned down the City of Atlanta’s reckless driving reduction offer for client.  The State presented the arresting officer’s evidence at a motion to suppress regarding the client’s manifestations of impairment.  The evidence also showed the client was speeding when pulled over.  After a motion to suppress, the judge found probable cause, but the evidence was seemingly scant.  Client agreed to waive jury and have a bench trial with the motion’s record stipulated as the evidence.  The judge ruled the evidence presented could not reach the State’s burden and acquitted client of the DUI charge.

 

CITY OF SANDY SPRINGS v. H.J. & J.F.

Local Ordinance Violations, Bench Trial

Client and his wife were charged with a combined total of 17 counts of local ordinance violations stemming from a house party where somewhere between 100 and 300 people were in attendance.  The City’s evidence included the party host’s testimony about the rental agreement for the house that evening, testimony from the officer on scene that evening, and testimony from a code enforcement officer who spearheaded the investigation.  Before trial, City’s best offer was for clients to plead guilty to all charges and pay fines totaling $17,000.  After a bench trial, client’s wife (who I represented after obtaining conflict waiver) was acquitted of all charges.  Client was acquitted of all but 3 charges and was ordered to pay fines on the three charges totaling $900.00.

Filed under dui, Trial issues by  #

If you have been arrested for DUI in Buckhead, or surrounding areas of Atlanta, Georgia, you should know what must be done right after you are released from jail.  Typically, Buckhead DUI arrests are taken to the City of Atlanta Jail, though sometimes Fulton County Jail will process DUI arrests made by certain agencies like Georgia State Patrol.  Once you are released from jail, you need to of course make arrangements to get your vehicle out of impound and secure any property- wallet, cell phone, etc. – that was confiscated after you were arrested.  Do not sit back and count on these items to be returned to you.  You must go to property and make the requests to have any missing items returned.  Probably 70-85% of new clients I meet with have issues with getting their property back.  It’s actually pretty ridiculous.

After you have gotten back your property and vehicle, look over your paperwork.  Make copies of these original tickets, you will be glad you did.  You should generally have Atlanta Police or Ga. Patrol citations, a driver’s license suspension form, and bonding sheets.  Sometimes, you will have a breath slip that was spit out by the machine you were tested in (if you did take a breath test at the jail).  Keep these originals in a safe place and make sure the copies are available when you meet with your defense attorney.

The most important deadline of your DUI arrest will be the 10 day requirement to send in an appeal letter to Dept. of Driver Services.  If you miss this deadline for any reason, your license will be suspended without you having a chance to explain your side of the story.  My office, Zeliff and Watson, does these letters at no-cost to you, other than the admin fee charged by the State, which is currently $150.00.  We will always cover this letter and the strategy for keeping your license through your case in our first meeting.

If you are facing charges for DUI in Buckhead, or Metro Atlanta, call me today to set up a face to face meeting to discuss your best options.  I have handled hundreds of cases in Atlanta courts, and do not charge to give you my insight and thoughts on defending your case.  If you have been released from jail and have questions about your property or evidence, then certainly voice these concerns to me.

Filed under dui by  #

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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.

Filed under Arrest issues, dui by  #

The Municipal Court of Atlanta has jurisdiction of many of the DUI arrests made throughout the Atlanta area.  This includes the Buckhead, Midtown and Downtown areas of Metro Atlanta.  All DUI arrests made by City of Atlanta Police officers will be prosecuted in the Municipal Court to begin with.  Additionally, troopers for the Georgia State Patrol have the option of bringing DUI arrests to Atlanta Jail- which will subsequently be prosecuted in the Atlanta Municipal Court.  (Troopers can also take their arrests to the Fulton County Jail, where your prosecution would start in the Fulton County Court system.)

Since Atlanta’s court is a municipal court, they do not have the power to conduct jury trials.  Therefore, if you want a jury trial on your DUI charge- which you have the Constitutional right to- your attorney will need to bind (or transfer) your case over to the Fulton County State Court for trial.  You should always consult with an attorney before deciding to have your case bound over to the Fulton County Court; once transferred, it cannot be sent back to Atlanta.

Typically, a case being heard in the Atlanta Municipal Court will have a discovery period before you or your attorney must decide on your trial and plea options.  During this discovery period, which is usually a minimum of 60 days, your attorney will obtain all evidence from your arrest available from the City of Atlanta Solicitor’s office.  In a DUI case, this usually consists of initial and supplemental police reports and video or other recordings made, as well as scientific reports pertaining to the chemical test you took (unless you allegedly refused or were denied these tests).    After your attorney has obtained these documents, you will have to decide on having a trial in front of a Judge in Atlanta or having a trial in front of a Judge or jury in Fulton County.  There are strategic reasons behind this choice that will depend on the facts of your particular case.

Generally, fines and conditions of a plea are less severe in the Fulton County Court system in my experience.  Under Georgia’s current DUI laws, a minimum fine of at least $300 will be assessed on a first DUI charge.  This amount is subject to surcharges which usually boost the price by 40%.  These surcharges will soon raise to 50% of the total DUI fine amount, as the law was recently changed.  A final price of a DUI in Atlanta or Fulton can exceed $1,000.00, not including the costs of probation, court ordered classes and treatment.

If you have been charged with DUI in Atlanta, call me directly to talk about the best strategies in defending your case.  I will be happy to go over your various options with you.

Filed under dui, dui defense georgia by  #

In Georgia, your criminal record is forever.  All arrests, and case outcomes are recorded on your criminal record, which is stored with the Georgia Crime Information Center (GCIC).  DUI charges, like most other charges, will never age off, or fall from your record.  You cannot plead under Georgia’s First Offender Act to DUI charges either.

In 2008, Georgia DUI laws actually became tougher.  A 10 year look back window was enacted to replace the previous 5 year window.  Therefore, if you are now convicted of a DUI charge, the court will look back 10 years and hold all previous DUI convictions in the past 10 years against you.  Previous charges will increase the amount of jail time, fines, and other court ordered conditions you face.  Obviously, with a longer look back period, the chances of reoffending and falling under tougher sentencing guidelines increases.   Additionally, as of July 1, 2008, all fourth DUI convictions are considered felony charges in Georgia.

If you have been charged with multiple DUIs, pulling your official criminal history and conducting a thorough examination of your record is an essential step in defending your case.  You must know what sentencing you are looking at before making decisions about your defense options.  If you are interested in pulling your criminal record, call or visit the website of your local law enforcement agency.  For a small fee, these agencies will run your criminal history and give you a copy to provide to your lawyer.

Filed under dui, DUI laws, punishment, repeat by  #

While you may  think that a search warrant allows law enforcement to search your home, automobile, or other physical places, Metro Atlanta law enforcement officers are relying more on search warrants to obtain blood samples of suspected DUI drivers.  In this AJC article, the trend in obtaining search warrants for DUI arrests in Georgia is discussed.  Under Georgia’s implied consent law, all drivers on our roadways give law enforcement consent to take samples of their “blood, breath, urine, or other bodily substances” under certain circumstances.  However, the law also includes the implicit right to refuse such testing, though a refusal carries harsh penalties on your driver’s license.  A minimum one year suspension of your Georgia driver’s license is put in place if you refuse testing at the officer’s request.  No form of hardship or limited permit to drive is allowed for drivers who refuse testing.

According to the article, the Atlanta Police Department may soon start utilizing search warrants to obtain blood samples of drivers who refuse testing of their blood or breath under Georgia’s DUI laws.  Douglas County and the Georgia State Patrol already use the search warrants in refusal cases, and will certainly continue to do so.  When a driver refuses testing, usually performed on the Intoxilyzer 5000 (Georgia’s breath testing machine), the driver withholds what is usually the prosecutor’s most robust evidence of DUI: a breath or blood test showing alcohol content.  The arresting officer is then left with only the physical manifestations such as bloodshot eyes, slurred speech, and the inability to balance, among others.  A DUI case is much stronger with direct evidence of a driver’s alcohol content, making the value of the search warrants for blood tests evident in DUI prosecutions.

With this growing trend, it appears that drivers who have relied on the implied consent law to refuse testing will not only be subjected to stiffer license penalties, but will also face a chemical test coming into evidence regardless of their refusal.  This creates an obvious problem for the average citizen who exercises their discretion and judgment and does not consent to testing.  In my experience, reasons to refuse testing are many; a friend or attorney has advised against it, a driver has concerns about the reliability of the machine, or even the honest belief that there is no reason to give a test if you have not done anything wrong.

If you have been charged with DUI in Metro Atlanta, or North Georgia, and allegedly refused testing, call my law offices today to talk about your case, the potential ramifications of your refusal, and your best defense.

Filed under dui, refusal DUI, search warrants by  #

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Guy, my 19 year old son was stopped last weekend in Fulton County and taken to jail. He has been charged with DUI, reckless driving, speeding and several other charges. I am scared to death that this mistake will follow him the rest of his life. Will this affect his college admission? job possibilities? What is the possible punishment?

Guy Sharpe’s response: The maximum punishment for DUI, which is a misdemeanor, is one year in jail and a $1,000.00 fine. Usually plea negotiations result in the lesser included offenses being merged into the DUI, such as reckless driving, speeding and others. The DUI record will always be there, so it could affect your son’s ability to obtain certain kinds of employment and may affect his ability to get scholarships to go to school.

[tags] Georgia DUI, Georgia DUI under 21, DUI sentence, DUI punishment [/tags]