The Bill, HB 799, would apparently require offenders to go five years without any driving infractions in order to be eligible for a second chance under the legislation.

Under current Georgia law, a DUI remains on your record forever.  Expungement is all but non-existent in DUI situations, and any finding of guilt, innocence, and even “no contest” pleas will stay on your record.  Frequently, I answer questions relating to background checks, employment screens, and insurance inquiries, and the answer is typically that unless you have an agreement, in writing, for the charges to be expunged, it will likely appear on your record.  Georgia law does not even allow for First Offender pleas on DUI charges, even though those accused of felonies are frequently granted first offender status.

With punishments for DUI convictions generally increasing, and anti drunk driving organizations calling for tougher DUI sanctions, like ignition interlock devices being placed on all offender’s vehicles, the Representative’s bill certainly seems to be a step in a different direction.  I can only imagine that there will be many terms and conditions attached to potential pleas or cases worked out under the proposed legislation.  Probation, mandatory treatment, fines, and other conditions are already usually required in many DUI cases, in an effort to both punish and rehabilitate drunk driving offenders.   Additionally, there will likely be heavy opposition to the bill from organizations already calling for tougher DUI laws.  The question is, what would differ under this proposed new law?  Do you think it would be a good idea to give a second chance on a DUI conviction?   Is Georgia law unreasonable in not currently allowing a pathway to having a first DUI charged removed from your criminal record?

O.C.G.A. (Georgia’s Code of Laws) provides for the First Offender Act under Sections 42-8-60 through 42-8-66.  Under the First Offender Act, if you have not been previously convicted of a felony, you may ask the court to treat you as a first offender if you plead, or are found guilty, or plead no contest to your criminal charges.  If the court allows a first offender plea, you may be sentenced to incarceration or probation, and have other terms and conditions placed in your sentence.  Once you successfully complete your sentence, the court will enter a discharge without any finding of guilt, and forward the information to the correct record keeping organizations.

If you successfully complete a Georgia First Offender sentence, your charges can not be held against you for most employment screening purposes.  This means that potential employers must overlook your prior charges when deciding whether or not to hire you, with a few exceptions.  Those who work around children, elderly, handicapped, and POST certified law enforcement officers may not be helped by entering a first offender plea.  Generally, the benefit of a first offender plea is self evident: it is a second chance to keep your record free and clear of a criminal conviction.

While a first offender plea can be record saver, it can also have harsh consequences for those who do not successfully complete the terms and conditions imposed by the court.  If you do not complete the sentence imposed under First Offender, the judge may sentence you to the maximum sentence allowed for the crime that you were originally charged with.  Additionally, since you have already pled, or where found guilty, you don’t get a second chance at defending yourself.  Simply put, you will immediately be resentenced, and the sentence will almost always be harsher than your First Offender plea.

If you have been charged with a felony, or even a misdemeanor crime in Georgia, speak to an experienced criminal defense attorney when deciding whether or not to seek a first offender plea.  The most common mistake I see is for people to use the plea on a relatively minor charge (misdemeanor), instead of saving it for a rainy day.  Certain drug, shoplifting, gun, and even TPO violations can all be felony charges, catching people off guard with their severity.  You only get one First Offender Plea; use it wisely.

If you or an acquaintance is facing criminal charges in Georgia, contact me to discuss potentially seeking a First Offender Plea.

On the other hand, your case may be one where the State’s evidence is admissable and we may decide that a judge or jury trial may be risky.  In such instances, we may be able to negotiate a favorable plea bargain to keep you out of jail or to other minimize the negative consequences of a DUI conviction.

What factors come into play when we negotiate a DUI plea bargain.  There are no published statistics to answer this but DUI defense lawyers around the country generally find similarities in their experiences.

Ohio DUI lawyer Brad Koffel posted a list of the top ten risk factors that hurt his chances at negotiating a plea bargain.  Brad’s list is not exhaustive but I agree with him that the more of these factors that apply in your case, the more difficult it will be to negotiate the most favorable terms of a plea bargain.  Here are the factors that attorney Koffel identifies:

1. Car Accidents
2. Blood Tests
3. Breath Tests
4. Urine Tests
5. Video showing an impaired client
6. State patrol hotline calls about our client
7. Client or passenger statements tantamount to confessions of being DUI
8. Rudeness & belligerence towards police officers
9. The county the DUI arrest occurred
10. Prior Convictions for DUI

Rest assured that even if your case seems hopeless, my job as your DUI defense lawyer is to identify each and every weakness of the State’s case and to guide you regarding steps you can take to help your chances.

I have found that clients accused of the most serious DUI offenses need representation even more than first time offenders with limited alcohol impairment.  I have yet to see a case where even a repeat offender with several of these risk factors does not have some redeeming character attribute that can help his case.  I therefore urge you not to just give up if the case against you looks bleak.

[tags] repeat DUI charges Georgia, DUI plea bargain Georgia [/tags]

Answer:  All DUI’s must be disposed of in open Court.  If you do not want to personally appear, you can give me Power of Attorney to handle your plea in your absence, including paying your fine and getting your probation set up.  However, the first DUI sentence often requires the Defendant to serve a minimum of 24 hours in jail, and I will not do that for you.  You’ll have to do the jail time.

Answer:  DUI is a criminal offense and will stay on your criminal record forever.  Every DUI you receive throughout your lifetime will be on your record.  I recently represented a gentlemen on his 7th DUI, and all prior 6 offenses were in the 1960′s, forty years ago.  For the purposes of sentencing, the law goes back for 5 years.  In other words, if you receive 2 DUI’s in the past 5 years, then the sentence will be greater, as required by law.

There are many factors to consider before you decide whether to take your case to trial or enter into plea negotiations.  I will address some of the obvious.  Do you feel that your actions when arrested will cause others to think you are under the influence?  After all, some people are more easily affected by alcohol than others.  Do you think you did well on the field sobriety tests?  If yes, that’s good.  Did you take a breath or blood alcohol test?  If so, what was the reading.  The threshold is .08 for over 21, but I have represented clients who scored as low as .02, which is 6 points under the limit.  In that case, the cop was a cowboy and we got the case dismissed and record expunged.  Remember, the arrest is being recorded by video camera and much can be learned about the arrest and whether the cop followed his training when making the decision to arrest for DUI.  The most important thing you can do is employ the services of an experienced DUI attorney.  I have personally been trained in the administration of Field Sobriety Evaluations and know how the cop is supposed to administer the test and the passing/fail threshold on each test. You would be supprised how many times the cops do not follow their training when administering the Field Sobriety Evaluations.  If not done properly, and according to their training, you can get the evidence suppressed and ultimately have the charges dropped or reduced.

Answer: Yes, it is important to know your rights when negotiating a plea, and how you may avoid jail time.  Remember, the Prosecutor and Judge are not there to advise you of  your rights, and they frequently will recommend that you have an attorney to make sure that you are apprised of the consequences of your plea.

–Guy

Yes, lawyers and clients frequently refer cases to us.