Thursday, December 29, 2011

Impaire driver cases | Douglas County criminal defense lawyer

Although exceedingly rare, the appellate courts in Georgia have occasionally overturned a conviction on a “less safe” DUI, as codified in O.C.G.A. § 40-6-391(a)(1). A quick summary of some key cases will show the level of “lack of proof” that has been required:

In Allen v. State, 257 Ga. App. 246, 570 S.E.2d 683 (2002), a conviction of Mr. Allen, (the driver) was overturned when the evidence admitted at trial consisted of: (1) the smell of alcohol; (2) a “positive” Alco-sensor result; (3) the trooper saying he “could tell he had been drinking”; (4) Intoxilyzer readings of 0.079 and 0.078. The Court of Appeals seemed to be troubled by the lack of traditional “manifestations of impairment” and the fact that no evidentiary alcohol test revealed a level associated with “an inference of impairment.” Although the trooper gave his opinion that Allen was “less safe” to drive, this opinion was not supported by competent evidence. In addition, because the officer did not see the vehicle while it was driving and the Prosecutor had no other witnesses as to the manner of driving, the mere fact that a wreck had occurred did not suffice.

In Ricks v. State, 255 Ga. App. 188, 564 S.E.2d 793 (2002), the defendant was stopped for speeding in Clayton County by a DUI task force officer. After first denying consumption of any alcohol, Ricks admitted “to drinking one beer.” An Alco-sensor was the only field evaluation, and it was “positive” for alcohol. Arrest followed immediately, with no more field tests being offered. At the station, Ricks took an Intoxilyzer test that revealed 0.052 and 0.055. Despite being under age 21, the State proceeded only on the “less safe” DUI case. At trial, the typical manifestations of an impaired driver were lacking: no unsteadiness on his feet, no slurred speech, no difficulty exiting the vehicle, no belligerence, and no inability to understand instructions. In fact, outside of the speeding, the Alco-sensor, the smell of alcohol, the reluctant admission of drinking, and “being under 21,” only eyes that were a “little bit red and glassy” constituted the officer's “proof” of impairment. Accord, Peck v. State, 245 Ga. App. 599, 538 S.E.2d 505 (2000) (no testimony of defendant's manner of driving or ability to drive); Hollis v. State, 234 Ga. App. 269, 505 S.E.2d 837 (1998) (Evidence of atrocious driving, but no evidence it was caused by alcohol impairment); Davis v. State, 206 Ga. App. 647, 426 S.E.2d 267 (1992) (wreck by teenager who was observed drinking “from a beer can,” he testified it was water, and his boast to teenage friends of “smoking marijuana” earlier were not supported by negative lab test results from blood drawn 3 hours later); Bell v. State, 197 Ga. App. 175, 398 S.E.2d 29 (1990) (smell of alcohol on breath is insufficient without more corroborating evidence of impairment); State v. Speir, 189 Ga. App. 254, 375 S.E.2d 298 (1988) (defendant not present at scene when police arrived, but was first observed at hospital); Groom v. State, 187 Ga. App. 398, 370 S.E.2d 643 (1988) (quantity of beer alone without proof of size and time span of consumption is insufficient). Contact a Douglas County criminal defense lawyer if there are doubts about your impoairment on a DUI.

Tuesday, December 27, 2011

Presumption in favor of the Defendant | Paulding county DUI lawyer

Paulding County DUI lawyers need to be aware of the following presumptions or inferences having to do with DUI law in Georgia. Contact a Paulding DUI lawyer immediately if arressted for DUI. Go to atlanta-westgeorgialawyers.com for more info.
(1) Blood or Breath Alcohol of 0.05% or Less
O.C.G.A. § 40-6-392(b)(1) provides the defense with a presumption (inference) of non-impairment, subject to the State's attempt to rebut the presumption. This might be done by presenting evidence of a collision or erratic driving, or through testimony about the driver's physical manifestations. The amended provisions now read:
(b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, may give rise to inferences as follows: (1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391….
(2) Blood or Breath Alcohol Level of 0.06% or 0.07%
O.C.G.A. § 40-6-392(b)(2) is a “neutral” position, where neither side can take advantage of an inference.
(3) Blood or Breath Alcohol Level of 0.08% or More
In 2001, the Georgia Legislature lowered the “per se” limit for adults to 0.08 grams and eliminated all reference to alcohol readings of 0.08 or more creating an “inference of impairment.” Prior law provided the prosecutor with this tool to facilitate convictions prior to July 1, 2001. The old BAC level for use of the “inference” was 0.10 grams or more. Contact a DUI lawyer in Georgia immediately if arrested for DUI.
Former O.C.G.A. § 40-6-392(b)(3) provided the State with an inference of impairment for any BAC of 0.08 or more, subject to the defense's attempt to try to rebut the inference. However, the State still had to establish that this was the person's alcohol level at the time of driving on all “less safe” DUI-alcohol cases. Defense counsel must insist on the trial court's giving this instruction, as the jury charge relates to the "less safe" count, as opposed to a different "proof" requirement under the per se alcohol content.
These “inferences” apply to all drivers, regardless of age. However, with the passage of HB 681, drivers under age 21 can be convicted of a per se DUI where a chemical test indicates an alcohol content of 0.02 grams percent or more if he or she is properly accused under O.C.G.A. § 40-6-391(k).
Also, commercial truck drivers are held to a 0.04 grams percent or higher per se level if accused under O.C.G.A. § 40-6-391(i). Despite these more stringent threshold levels for underage and CDL drivers, an alcohol level of 0.04 grams percent is a very favorable BAC in a "less safe" case, using existing statutory inferences. However, the existence of the same evidence may be sufficient to convict operating a commercial vehicle or a driver under 21 of a "per se" violation.
This dichotomy is why defense counsel must do anything possible to eliminate any per se "number," yet (if trial goes forward) be prepared to BOTH show lack of proof of "Less Safe" DUI and cast doubt on the accuracy and reliability of the State's breath test "number" which is the sine qua non of a per se alcohol count.
In any court using Uniform Traffic Citations rather than accusations, carefully review which Code section(s) were used and obtain an acquittal if the "probata and allegata" do not match. The case law on these issues is anything but clear so do your homework in this topic prior to trial of the case. A demurrer (motion to quash) may be the winning strategy, or remaining mute on the problem until after the "issue is joined" at trial and jeopardy attaches could be your best chance at success.
Although these evidentiary “inferences” are given to the prosecution in alcohol-based DUI cases, no such rules have YET been promulgated by the Legislature for controlled substances (drugs). Kerr v. State, 205 Ga. App. 624, 423 S.E.2d 276 (1992). Over the past five years, the National Highway Traffic Safety Administration has conducted studies to try to establish national “per se” impairment levels for certain controlled substances (e.g., marijuana). Several states have now enacted such laws. CAUTION: the GBI training manual for the Intoxilyzer 5000 contains some language about impairing levels for common prescribed drugs. Be aware of the likelihood an untrained lab worker will try to use these “numbers” without any foundation's being laid.


Practice Commentary

In the 2001 regular session the Georgia Legislature amended O.C.G.A. 40-6-392(b) by finally changing “presumptions” to “inferences” in order to follow the requirements of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Despite the legislative change, an overworked judge still may erroneously read the language as “presumed” creating reversible error. Davis v. State, 236 Ga. App. 32, 510 S.E.2d 889 (1999); Stepic v. State, 226 Ga. App. 734, 487 S.E.2d 643 (1997).

For more information about Paulding county DUI lawyers go to atlanta-westgeorgialawyers.com.  
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Monday, December 26, 2011

DUI Charge | Carroll County Georgia lawyer

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 se case, 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. If you have any questions about your case contact a Carroll County criminal defense lawyer.



DUI less safe | Paulding County lawyer



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 se case, 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 a free consultation.
 

Friday, April 29, 2011

Driving under the influence Under 21 yrs. old | Douglasville lawyer

A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person alcohol concentration was .02 g or more at any time within 3 hours after such driving or being in physical control from alcohol before such driving or being in actual physical control after the driving ended. Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and 2nd convictions and upon a 3rd or subsequent conviction thereof be guilty of a high an aggravated misdemeanor and shall be punished and fined as provided in subsection C of this code section, provided that any term of imprisonment served shall be subject to the provisions of code section 17-10-3.1 and any Community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.No plea of nolo contendere shall be excepted for any person under the age of 21 charged with a violation of this code section. The driver's license of any person convicted of violating this subsection shall be revoked as provided by code section 40-5-57.1. Douglasville lawyers know that the requirement that all community service be completed in 60 days may pose problems to the client if the trial judge orders that 60 or 480 hours of community service be performed.

Sunday, April 24, 2011

Driving drunk under combined substances | Douglasville lawyer

OCGA 40-6-391(a)(4) provides that a person shall not drive or being in actual physical control of moving vehicle while: under the combined influence of any 2 or more of the substances specified in paragraphs 1 through 3 of this subsection to the extent that is less safe for the person to drive. The section again requires a finding that defendant was a less safe driver due to the combined effects of 2 or more intoxicants, alcohol and prescribe drugs in his system. Without doubt, jurors are more likely to convict when the evidence seems to support voluntary consumption or use of multiple substances. A Douglasville attorney should realize the inherent risks of going to trial in situations where OCGA 40-6-391(a)(4), come into play.Douglasville lawyer

Dviving under the influence of other substances pursuant to OCGA 40-6-391 (a) (3) | DUI -toxic vapor less safe

At the 1996 session of the Gen. Assembly, legislatures passed Senate Bill 560 which is codified as OCGA 40-6-391 (a) (3) which expanded 40-6-391 to include in the crime of DUI driving under the influence of any glue, aerosol, or other toxic vapo to the extent that is less safe for the person to drive. To prove such cases, the State will meet expert testimony to establish quantitative levels of such chemicals in sufficient quantities to cause less safe driving,not the mere presence of toxic vapors in the suspect's blood.  No charts or per se limits exist for toxic vapors, so a good Douglasville criminal defense lawyer will not allow a conviction based on the pseudoscience that the State will try and bring forth at trial. Once again, defense counsel was bring an expert witness for the defense to refute any wildcat claims by GBI that only a certain level of such chemicals of the blood test would cause impairment. No charts or per se limits exist for toxic vapors so Douglasville attorney should not allow scientifically unreliable evidence to convict the client. A Douglasville attorney should challenge these claims based upon correlation to the time of driving, the experience level and actual expertise of the GBI witness,or possibly based upon client incidental exposure to these vapors during work or at home.

Driving under the influence | marijuana DUI lawyer

A Douglasville lawyer knows that driving under the influence of the contraband substance pursuant to OCGA 40-6-391(a)(6) has several different elements. Subsec. 6 provides that any person driving or in actual physical control of a motor vehicle is any amount of marijuana or controlled substance or derivative or metabolite, i.e. a byproduct created by the bodies elimination the contraband substance in the blood is guilty of DUI drugs per se. It seems clear that the mere presence of a prescription drug in the driver's bloodstream where the person does not have a prescription in his or her name will constitute a violation of this provision. Love v. State 271 Ga. 398 as put OCGA 40-6-391(a)(6) on hold. Love held that OCGA 40-6-391(a)(6) (DUI by driving with the mere presence of a drug, without need of proof of impairment) was too broadly drawn, so as to proscribe both legal users and illegal users of marijuana. Love v. State 271 Ga. 398 1999, does not defeat a conviction for reckless driving or for vehicular homicide with the predicate series driving offense being reckless driving. This is despite the reckless conduct being that the driver operated the car after having ingested marijuana. Ayres v. State, 272 Ga. 733 (2000). Hence no inferences presently exist whereby the prosecutor can convict with expert testimony to interpret how a certain quality of nanograms of a drug equal impairment. Kerr v. State 205 Ga. App. 624, 1992. If you are charged with driving under the influence of marijuana contact a Douglasville Georgia DUI lawyer.

DUI Prescribed Drugs requires proof of Incapable of driving Safely | Douglasville DUI lawyer

In State v. Kachwalla, 274 Ga. 886 (2002) the Supreme Court Georgia found decision in love v. State 271 Ga. App. 98 was concerned only with the disparate treatment afforded those drivers that were charged under the per se violation of OCGA 40-6-391(a)(6) And the Court upheld the constitutionality OCGA 40-6-391(a)(2) against the charge it violated equal protection. The cost while a court was faced with an equal protection challenge based on the fact DUI prescription drugs called for a higher standard under subsection B than the other subsections. The Supreme Court Georgia avoided equal protection challenge altogether by concluding that less safe to drive and rendered incapable of driving safely were equivalent standards,legally, historically, and semantically. Therefore, a defendant accused of violating the statute which prohibited a person from driving while under the influence of any drug to the extent it was less safe for defendant to drive did not suffer disparate treatment in violation of equal protection, even though another statute set forth that a person charged with DUI and was legally entitled to use a drug other than alcohol did not commit DUI unless such person was rendered incapable of driving safely.  A criminal defense attorney in Douglasville will argue all the points to show that the Defendant in teir case was capable of driving safely.Douglasville lawyer

DUI lawyer douglas | Douglasville lawyer

It is imperative that if you are charged with DUI you retain a qualified DUI attorney immediately.   OCGA 40-6-391 (a)(2)provides that a person shall not drive or being in physical control of any moving vehicle while under the influence of any drug to DUI statute to the extent that it is less safe for that person to drive.Prior to the Supreme Court's ruling in love v. State 271 Ga. 398 this was probably the least used DUI code section. Most reported cases involving prescribed medication arise as a result of impairmen from both alcohol and drugs. A DUI drug shall OCGA 40-6-391(a)(2)requires proof that the quantity or amount of the prescribed for contraband or over-the-counter drug caused impairment or caused the person to be a less safe driver. With more and more police officers requesting blood tests from DUI suspects, an increase in the number of combined effect cases can be expected. Additionally added January 1, 2008 changes in Georgia law under OCGA 40-5-75, pertained law driving privileges for certain drug-related convictions have raised the stakes for aggressively fighting cases with multiple criminal counts that may carry mandatory Consecutive driver's license suspensions.As of January 1, 2008 any drug convictions will be tacked onto the end of any other license suspensions. See OCGA 40-5-75-(i). 75-(i).  While any evidence of driving with contraband  substance in a driver's system constitutes driving under the influence of a drug, OCGA 40-6-391(a)(2) requires proof beyond a reasonable doubt that the defendant is less safe because of the quantity or concentration of the drug in his system at the time of driving. Aggressive Douglasville Dui lawyers make sure to argue this point to the judge and jury.