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).

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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.