Sunday, April 10, 2016

What is the Officer supposed to do to accomodate the request for an independent test?

The Court of Appeals held that before the duty to transport the defendant to the testing location arises, the defendant must first show that he has made arrangement with a qualified person of his own choosing, that the test to be made if he came to the hospital, that he so informed the personnel at the jail where he was under arrest, and that those holding him, for some reason, refused to take the defendant to the hospital for a test.  In Thornhill v. State,  the Court of Appeals held that although officers are required to accommodate reasonable requests for an independent test, it is not their duty to ensure that the independent test is performed.  In this same vein, Muller v. State 257 Ga. App. 830 (2002) held that an officer originally requesting both a breath and blood test, but subsequently choosing to administer only the breath test did not mislead the defendant into believing that he could not request an independent blood test from qualified personnel of his own choosing.  The officer informed the defendant that he was entitled to additional tests at his own expense, thus satisfying the mandate of the implied consent statute. The implied consent warning advises defendants of their right to have an independent test performed.  In Jenkins v. State, 198 Ga. App. 843 (1991), the defendant was offered the opportunity to obtain an independent test but the medical facility selected refused to perform the tests, and defendant was again offered by the police officer the opportunity to have an independent test conducted.  The defendant did not select another facility, but became argumentative with the police officers.  The court found that the defendant was afforded a reasonable opportunity for an independent test, but waived it.  In Caldwell v. State, 202 Ga. App. 729, (1992), the Court of Appeals held that where defendant exercised his right to an independent test of his own choosing by demanding in writing, an additional breath test, which is performed 20 minutes after the first test by the same officer on the same Intoximeter 3000, and yielded the same result, he was afforded the opportunity to obtain an independent test.

In Crawford v. city of Forest Park to 15 Ga. App. 234 (1994), the defendant opted to go to the hospital for blood test.  Once there, the nurse informed him that the blood test result would be higher than the breath machine test result.  When the defendant turned to the arresting officer, the officer gave a confirmatory nod.  The Court of Appeals did not find that this conduct violated the officer’s duty to accommodate an independent test.  The Court of Appeals may consider this simply as a defendant changing his mind.  In Cadden v. State 213 Ga. App. 291 (1994), the defendant was short of cash to get a test.  The officer asked if someone can meet him, and the defendant asked to be taken home to get funds, which the officer declined to do.  The officer did offer to let him call someone to meet him, or to take into an ATM, which the defendant declined.  The officer’s efforts were considered reasonable.  In State v. Holmes 224 Ga. App. 29 (1996),the 5 to 10 may delay was justified in order to permit the defendant to become coherent.   
               In Lampf rule’s v. State, 234 Ga. App. 625 (1998), the defendant requested independent blood test but expressed no preference as to a testing facility. He was transported to the nearest hospital where his blood was drawn and tested. He did not object to the facility at the time. The court rejected his contention that the procedure utilized by the police denied him his right to an independent test by personnel of his own choosing. In the Court’s view, the officer’s actions in taking labral pubis to the nearest hospital, and the department policy behind it, were reasonable. For other instances where defendant’s right to an independent test was not violated, see Dosier v. State 187 Ga. App. 51 (1988), defendant taken to the hospital, paid for a test, learned he could not obtain a urine test because the hospital only did a blood test, became belligerent and was returned to the jail.  

Contact a criminal defense attorney today to help you with your dui case.

Thursday, October 1, 2015

Georgia First Offense DUI

Georgia DUI Laws are no laughing matter. If you or someone you know has been arrested on a Georgia DUI Charge than you are going to need a Lawyer who understand the Atlanta and Fulton County DUI process. For most people, the first DUI offence will mark their first time being on the wrong side of the law. Given their law-abiding past, it may seem safe to assume first-time offenders won’t face any major consequences for their actions, right? Wrong. Under the state’s mandatory sentencing guidelines, even a DUI 1st offense carries a number of hefty penalties. See our Frequently Asked Questions about an Georgia DUI

Criminal Penalties For an Georgia DUI

If you are convicted of driving under the influence, you can expect to lose your license for 30 days or more, and pay anywhere from $300 to $1,000 in fines. In addition, your sentence may include community service, probation, alcohol counseling, and even jail time. Indeed, under state law, the minimum punishment for a first-time drunk driving offense includes a 24-hour jail sentence and 12 months of probation—and those penalties can always increase!

Long-Term Consequences Of an Atlanta DUI Conviction

Think having a DUI conviction on your record won’t affect your personal life? Think again. Once you are found guilty of driving under the influence, your crime will be permanently reflected on your criminal record. Unfortunately, that means anyone who checks your background will see your conviction—a fact that can be a real deterrent for employers and housing providers, as well as colleges and universities.

Along with limiting future opportunities, a DUI conviction may also have a negative impact on your budget. For example, once your insurance provider learns you were found guilty of drunk driving, your insurance rates are sure to rise. In fact, many drivers who have a DUI conviction on their record pay up to three times more for coverage than other motorists—and most insurance companies won’t even consider reducing your rates for the next several years.

Of course, the good news is that being arrested for DUI does not mean you will be convicted of the charges in criminal court. As a first-time offender, you may be able to get your DUI reduced to a lesser offense and avoid the life-altering consequences of a drunk driving conviction—and in some cases, you may even be able to get your charges dismissed entirely.

As a former prosecutor, Bryan Howard knows the ins and outs of Georgia’s DUI code.  From challenging the officer’s testimony to questioning the accuracy of your chemical test results, count on the Howard Law Group Attorneys are aggressive litigators in the state’s case against you.

If you were recently arrested for DUI in Georgia, you may be tempted to just plead guilty and accept whatever consequences the court doles out. However, in light of the consequences you will face for doing so, it is best to obtain legal representation immediately after your arrest.

To put one of Georgia high rated DUI defense attorneys to work on your case, submit your information online today for a free consultation with Bryan Howard or Christina Champagne.


Sunday, December 28, 2014

Practically speaking, in any DUI case the prosecution must prove that the defendant was “driving or was in actual physical control of the vehicle.” To prove a “less safe” DUI under O.C.G.A. § 40-6-391(a)(1), the prosecution must also show that the defendant was “under the influence of alcohol.” Under O.C.G.A. § 40-6-391(a)(1), the mere presence of alcohol in the bloodstream, however, is not dispositive on this charge regardless of the level of alcohol concentration. Evans v. State, 253 Ga. App. 71, 558 S.E.2d 51 (2001). In fact, the breath test results have been found to be “merely cumulative” of other evidence such as manifestations of excessive alcohol usage, odor of alcohol, and field sobriety results. Trotter v. State, 256 Ga. App. 330, 568 S.E.2d 571 (2002). Therefore, the prosecution has an additional burden of proving that the driver was “less safe” to drive as a result of the presence of alcohol. Stepic v. State, 226 Ga. App. 734, 487 S.E.2d 643 (1997)Also see Allen v. State, 257 Ga. App. 246, 570 S.E.2d 683 (2002), where the Court of Appeals found insufficient evidence to convict the defendant of the “less safe” charge based solely on officer testimony that the defendant “had been drinking” and the State introduced evidence of a breath score of 0.079. While the manner of driving may be used as circumstantial evidence to show the driver was “less safe,” Walczak v. State, 259 Ga. App. 140, 575 S.E.2d 906 (2003), many DUI cases involve road block stops or a prior collision that can be blamed on other factors, such as bad weather, mechanical failure or passenger distraction.

Ill-advised admissions or trial testimony can virtually guarantee a conviction for many accused impaired drivers. The Court of Appeals has held that the defendant was not entitled to a jury charge stating that a defense to DUI is that the “person's manner of driving was not unsafe” where the defendant admitted that he violated O.C.G.A. § 40-6-391(a)(1) and was too drunk to remember what happened. Cunningham v. State, 221 Ga. App. 341, 471 S.E.2d 273 (1996).

Whenever the State has no chemical (breath, blood or urine) test results, proof of the final two elements of O.C.G.A. § 40-6-39(a)(1) [while under the influence of alcohol AND to the extent that it is less safe for the person to drive] can be seriously contested. In this scenario, the State will generally try to use a combination of driving conduct, field tests, and physical observations or "manifestations" (i.e., odor of alcohol, unsteady on feet, slurred speech, etc.) to make out its case.

The arresting officer in these cases will generally testify that it is his or her “opinion” that this combination of factors shows the defendant was a “less safe” driver due to the influence of alcohol. Keep in mind that a refusal to take a breath test does not create the inference that the driver is impaired to the point of driving less safe and the State's claim to the jury of such an inference is reversible error. Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003). However, the jury can be instructed that a refusal to submit to a chemical test may infer that the defendant's test result would “show the presence of” alcohol. Bravo v. State, 249 Ga. App. 433, 548 S.E.2d 129 (2001). Additionally, a chemical test erroneously admitted has been held to be “harmless error” and irrelevant to a less safe case. Camp v. State, 259 Ga. App. 228, 576 S.E.2d 610 (2003) (when other compelling evidence of impairment exists).

In a “pre-July, 2001” DUI roadblock case, the DUI per se UTC was dropped prior to the jury trial beginning since the blood test came back at 0.09 (when the legal limit was 0.10). So the trial proceeded on the “less-safe” DUI count under O.C.G.A. § 40-6-391(a)(1). During jury deliberations, the jurors asked the trial judge which legal limit applied, 0.08 or 0.10. The judge refused to directly answer the question because the case was a “less safe” DUI, not a per secase, and he feared that the jurors would get confused about the distinction. He merely recharged them on “less-safe” and told them not to speculate about the BAC legal limit, since that was another type of DUI than what was charged here. The conviction was affirmed. Holloman v. State, 257 Ga. App. 490, 571 S.E.2d 486 (2002). This case highlights the important role of defense counsel in crafting targeted jury instructions.

ContaCT  a Paulding county criminal defense lawyer for help on your case!

Saturday, December 27, 2014

Paulding county criminal defense lawyer | Terry stop


§ 1:5. Driving under the influence—O.C.G.A. § 40-6-391(a)(1)—Misdemeanor—Statutory wording
O.C.G.A. § 40-6-391(a)(1) [the so-called “less safe” DUI] provides:

  • (a)

    (a) A person shall not drive or be in actual physical control of any moving vehicle while:

    • (1)

      (1) Under the influence of alcohol to the extent that it is less safe for the person to drive[.]

In seeking to prove a “less safe” DUI, the State may or may not have a chemical sobriety test result to support this count. A conviction for this type of DUI offense can be based entirely upon circumstantial evidence about a “moving vehicle.” See Jenkins v. State, 223 Ga. App. 446, 478 S.E.2d 143 (1996), where defendant was passed out in another person's private driveway, behind the steering wheel of a parked car. Also see Hutto v. State, 259 Ga. App. 238, 576 S.E.2d 616 (2003), police officer noticed defendant sitting on a motorcycle parked at midnight close to the edge of the highway and approached the defendant because the officer believed this to be a “traffic hazard.” Conviction for DUI and operating an unregistered vehicle affirmed. Also see State v. Underwood, 257 Ga. App. 893, 572 S.E.2d 394 (2002) for a good description of what the word “stopped” means. In that case, the officer approached Underwood's already stopped car. Under this “first tier” of police citizen encounter, as set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), no articulable suspicion is needed to justify police inquiry. The court similarly held that evidence obtained after the police officer spoke with the defendant through an open window of defendant's truck was not the result of an unlawful search or seizure where the police officer merely approached defendant's stationary vehicle to find out what was going on. Because he was already parked outside an ex-girlfriend's house, the police encounter did not begin as a "second tier" Terrystop. There was no evidence that the officer was threatening or coercive or that defendant was "seized" by any show of authority or physical force.

Contact a paulding county criminal defense attorney today for help with your case.

Was the client who was charged with operating a motor vehicle actually in possession of the motor vehicle? | Paulding county DUI lawyer


§ 1:4. Definitions—“Driving” or “operating” a “motor vehicle”
The defendant must be driving or in actual physical control of a motor vehicle in order to support a charge of DUI; however, the defendant is not required to have actually committed any unsafe acts. Furthermore, the State is not required to prove that any person actually saw the defendant operate the motor vehicle if there is sufficient circumstantial evidence to support a conviction.

In Lewis v. State, 149 Ga. App. 181, 254 S.E.2d 142 (1979), the defendant was first observed in a ditch by a person who turned off the ignition and lights. A police officer later found him with the ignition and lights on, asleep or passed out. This was sufficient to constitute actual physical control. Accord, Phillips v. State, 185 Ga. App. 54, 363 S.E.2d 283 (1987) (asleep at wheel; lights on; engine running); Felchlin v. State, 159 Ga. App. 120, 282 S.E.2d 743 (1981) (the defendant's admission that he was going too fast to make curve was at least some evidence that he was driving vehicle which was found overturned); and Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972) (wreck where visible evidence showed that car left roadway; defendant was only person at the scene). The driver need not have steered the vehicle nor have the engine running. Savage v. State, 252 Ga. App. 251, 556 S.E.2d 176 (2001).

Even evidence that would normally be legally insufficient to support probable cause to arrest will suffice at the Georgia Court of Appeals. State v. Loy, 251 Ga. App. 721, 554 S.E.2d 800 (2001)Jenkins v. State, 223 Ga. App. 446, 478 S.E.2d 143 (1996). But see, D'Anna v. State, 201 Ga. App. 731, 412 S.E.2d 857 (1991) (because evidence of the defendant's driving the truck, was wholly circumstantial and defendant offered a reasonable hypothesis explaining his presence near the location of abandoned truck, improper admission of an in-custody inculpatory statement for the jury's consideration was probably contributing factor to the jury's guilty verdict, thus reversal of conviction was warranted).

Recent case law has opened the door for defense counsel to challenge (at a pre-trial motion hearing) the arresting officer's decision to make a custodial arrest for DUI. Hence, if you have the right set of facts and make an excellent record, you now have a better chance of winning the client's case on “insufficient evidence of impairment” grounds, relating to the arrest decision, than in a post-conviction appeal. See Ojemuyiwa v. State, 285 Ga. App. 617, 647 S.E.2d 598 (2007)Slayton v. State, 281 Ga. App. 650, 637 S.E.2d 67 (2006)Shaheed v. State, 270 Ga. App. 709, 607 S.E.2d 897 (2004)Allen v. State, 257 Ga. App. 246, 570 S.E.2d 683 (2002)State v. Batty, 259 Ga. App. 431, 577 S.E.2d 98 (2003)State v. Gray, 267 Ga. App. 753, 600 S.E.2d 626 (2004)State v. Ellison, 271 Ga. App. 898, 611 S.E.2d 129 (2005)State v. Bass, 273 Ga. App. 540, 615 S.E.2d 589 (2005)State v. Sanders, 274 Ga. App. 393, 617 S.E.2d 633 (2005).

It is important that you contact a Paulding County criminal defense lawyer who actually knows what he's doing. If you failed to contact a lawyer right away to help you with your case then you're only asking for trouble down the road.there maybe problems with the stop, which means the officer did not have reason to pull you over.paulding County criminal defense lawyer can obtain a copy of the video and watch the video to see if the stop was done correctly.you need to hire a lawyer who is familiar with the criminal justice system in Paulding County.


Contact a Paulding county dui attorney to handle your dui case today.

Friday, December 26, 2014

Possession of a vehicle needed | Paulding county criminal defense lawyer

*141 A jury found Dana Moore guilty of driving under the influence to the degree it was less safe for her to drive. On appeal, Moore argues that the trial court erred in denying her motion to suppress. She also contends that the trial court erred in admitting certain hearsay evidence and that, absent such hearsay, the evidence was insufficient to establish her guilt. Although we find no error in the trial court's denial of Moore's motion to suppress, we agree that the trial court erred in admitting a police officer's hearsay testimony. However, as such error was harmless, we affirm.
*142 Viewed in a light favorable to the jury's verdict,the evidence shows that on October 19, 2004, Police Officer Mark Hodge was dispatched to a Waffle House parking lot where he discovered Moore's car stuck on a curb. As Hodge approached, he saw several people attempting to push the car off of the curb and Moore walking away. Another woman told Hodge, “she's in my car.” Hodge subsequently found Moore lying across the back seat of another person's car. According to Hodge, Moore smelled strongly of alcohol. When Hodge asked Moore about her car, she admitted that she was drunk and told Hodge that she had been attempting to put her car in reverse, but the car had gone forward, causing her to run over the curb. Hodge asked Moore to perform field sobriety tests, and Moore responded, “[h]ell no, I'm drunk.” Based upon this and other evidence, Moore was found guilty of driving under the influence of alcohol to the degree it was less safe for her to drive.
2“On appeal from a denial of a motion to suppress, we construe the evidence in favor of the trial court's ruling, and the trial court's application of law to undisputed facts is subject to de novo review.”2 At the hearing on Moore's motion to suppress, Hodge testified that he was dispatched to the Waffle House parking lot in response to a 911 call.A woman at the scene said that “someone [was] in her car,” and Hodge walked over to the car to see if that person was “okay.” At that point, Hodge detected the smell of alcohol, and he asked Moore if she had any form of identification. Moore responded that she did not and then said that she was drunk. Moore also told Hodge that her car had become stuck on the curb after she attempted to put it in reverse. Hodge asked Moore to follow him to his patrol car, and she eventually complied, although she was somewhat combative. According to Hodge, Moore was unsteady and needed support or she would have fallen. Ultimately, Hodge arrested Moore.

Although Moore's argument on appeal is not entirely clear, she apparently contends that her detention was illegal and thus any statement she may have made while detained should be suppressed. However, “[m]omentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope ofinquiry not based on mere inclination, caprice or harassment.Here, Officer Hodge encountered Moore after responding to a 911 call. As we have noted, “[a] dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene, particularly where police observations on arriving at the scene corroborate the dispatcher's report.” Under the circumstances of this case, we find no error in the trial court's denial of Moore's motion to suppress.
To the extent that Moore argues that Hodge needed probable cause before speaking to her, we find this argument meritless. Even if probable cause were required, however, we find that Hodge had probable cause to arrest Moore. This Court has found that
[s]ufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders [her] incapable of driving safely. It is not necessary for the officer to actually see the suspect driving for there to be probable cause to make a DUI arrest.
Given that Moore essentially admitted both that she was drunk and that she had driven her car onto the curb, Hodge clearly had probable cause to arrest Moore for driving under the influence.Thus, this allegation of error lacks merit.
52. Moore also contends that the trial court erred in permitting Hodge to testify regarding the statements of the 911 caller. Over objection, Hodge testified that the 911 operator “informed [him] that ... a ... female ... appeared to be drunk and she was trying to move her vehicle over the curb.” We agree that the trial court erred in admitting this evidence.
Under OCGA § 24–3–2, a trial court may generally admit as original evidence information and conversations to explain conduct and ascertain motives.8 Our Supreme Court, however, has limited the application of this principle to situations in which such testimony is *144 relevant to the issues on trial.9 With respect to police officers, the Supreme Court has reasoned that
unless it is the rare instance in which the conduct of an investigating officer is a matter concerning which the truth must be found, it is error to permit an investigating  **411 officer to testify, under the guise of explaining [his] conduct, to what other persons related to the officer during the investigation.10
Under the circumstances of this case, we fail to see the necessity for Hodge to relate to jurors the exact words of the 911 caller: that a white woman who appeared to be drunk was trying to drive her vehicle over a curb. It was sufficient for Hodge to explain that he was responding to a 911 dispatch. Accordingly, we agree that the trial court erred in admitting this testimony.11
6It does not necessarily follow, however, that Moore is entitled to reversal. As our Supreme Court has made clear, the improper admission of this type of evidence is subject to harmless error analysis.12 And where such hearsay evidence is merely cumulative of properly admitted evidence, we have found no harm.13 In this case, Moore admittedly told Hodge “that she was trying to put her car in reverse and the car suddenly moved forward, causing her to run over the curb.” As the improperly admitted hearsay was cumulative of this testimony, we find it unlikely that the hearsay contributed to the verdict.14
783. Finally, Moore contends that the trial court erred in denying her motion for directed verdict as—absent the hearsay evidence—there was no testimony that she was in control of the car, which is required to sustain a DUI conviction. “A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty.”15 Here, Moore essentially admitted to Hodge that she was drunk and that she had attempted to move her car. As a result of Moore's attempt, the car was lodged on the curb. And when Hodge looked inside the car, he discovered an open beer container. Although this constitutes circumstantial evidence that Moore was driving the  *145 car while intoxicated, such evidence is sufficient.16 Under these circumstances, the trial court did not err in denying Moore's motion for directed verdict.
Judgment affirmed.
SMITH, P. J., and PHIPPS, J., concur.  Con

Contact a paulding county criminal defense lawyer and get the best representation you can find | Paulding county criminal defense lawyer

Under O.C.G.A. § 40-1-1(33), any wheeled vehicle propelled by gas, steam or electricity that can be operated through its own power will likely fit the definition of a motor vehicle under Georgia's DUI law. To this end, a tractor has been held to be covered [Browning v. State, 207 Ga. App. 547, 428 S.E.2d 441 (1993)]; a go-cart will likely qualify [1969 Op. Att'y Gen. No. 69-194]; golf carts driven on a municipal trail system are within the purview of statute governing driving under the influence [Simmons v. State, 281 Ga. App. 252, 635 S.E.2d 849 (2006)]; and a motor scooter [1954-56 Op. Att'y Gen. p. 471]. Implicitly, this does not refer to a self-propelled vehicle. In 2003, Georgia passed some new DUI statutes applicable to electric “people movers” such as the Segway™.  infra, for information on operating these devices while impaired by drugs or alcohol.
The 2003 Legislature enacted new laws regarding impaired operation of e.p.a. (electronic personal assistive) devices. This would include novel people transport devices such as the Segway™, which can be used to transport a person along a sidewalk or street. These laws provide for misdemeanor punishment by fine only and not to exceed $500.00.

Ironically, it appears that Georgia law will allow a person who is 16 years old or more, with or without a driver's license, to operate a properly-equipped e.p.a. Even more bizarre, the unlicensed "operator" can be both suspended for a current DUI offense AND can be currently impaired by a drug or by alcohol, yet not face a DUI charge.

Any person who is under the influence of any intoxicating liquor or any drug to a degree which renders him or her a hazard shall not operate any electric personal assistive mobility device on any highway or sidewalk. Violation of this Code section shall be a misdemeanor, punishable upon conviction by a fine not to exceed $500.00. (Emphasis added.)

If a person operates one of these devices at any location other than a street or sidewalk, punishment calls for a civil penalty of up to $500. See O.C.G.A. § 40-6-327.

Under O.C.G.A. § 40-6-327, any violation of "offenses" other than operating an "e.p.a." while intoxicated as proscribed by § 40-6-326 will NOT result in a criminal conviction nor any driver's license suspension or points. The maximum "civil" penalty is a $500 maximum assessment.


Contact a Paulding County Criminal defense lawyer today if charged with a DUI.