Monday, March 18, 2013

Specific intent and DUI crimes | Atlanta DUI lawyer

The general intent crime, often called a malum in se offense, such as arson, is one in which the voluntary act e.g. setting a fire, subjects the perpetrator to criminal liability, although he or she may have had no specific intent to do the damage that resulted. General intent crimes have their roots in the common law, which presume that certain acts are morally offensive and, therefore, carry a presumption that the perpetrator intended the harmful results. The 3rd category of crimes is a malum prohibitum i.e. the strict liability crime. These offenses involve acts that required no accompanying culpable mental state to be proved. With such offenses, criminal liability attaches, not because the acts are inherently wrong, but in order to protect the public welfare. Strict liability cannot be presumed. The United States Supreme Court has held that strict or absolute liability crimes can pass constitutional muster. According to the court, it cannot be presumed that there is no mens rea element to a defined crime simply because the Legislature has omitted reference to intent from the statute. Mens rea may survive strict liability. Even in the face of an onslaught of constitutional attacks, many courts have upheld the authority of the Legislature to declare drunk driving a strict liability crime. However, a number of state appellate courts of recognize that some mens rea is an element of every crime, absent a specific expression of legislative intent to remove that element from the corpus delicti of the charge. The Colorado Supreme Court for example has held that the mens rea of drunk driving is the voluntary act of drinking alcohol and subsequently operating a motor vehicle.Contact an Atlanta DUI lawyer today to discuss your rights and any possible DUI defenses you may have.

Tuesday, January 22, 2013

Intervening cause | Atlanta DUI lawyer

An Atlanta DUI lawyer knows that the burden is upon the State to prove the corpus delicti; i.e., to show that the defendant's alleged unlawful acts were the proximate cause of the purported victim's death. Brown v. State, 152 Ga. App. 273, 262 S.E.2d 497 (1979). See also McKinney v. State, 204 Ga. App. 323, 419 S.E.2d 339 (1992). In other words, to sustain a verdict of guilty for vehicular homicide in the first degree or second degree, the evidence must authorize the jury to conclude that the defendant's action (violation of a traffic statute) caused the death of the victim. Williams v. State, 165 Ga. App. 831, 302 S.E.2d 736 (1983).

An interesting causation issue was resolved against the defendant in Pitts v. State, 253 Ga. App. 373, 559 S.E.2d 106 (2002), when the court again noted that in order to be convicted of vehicular homicide the conduct of the defendant must have caused the death. In Pitts, an officer pursued the defendant to initiate a traffic stop. Instead of stopping, the defendant attempted to elude the officer. After a one-minute and 49-second chase, the officer attempted to stop the vehicle using the Pursuit Intervention Technique (PIT) by pulling up along side the defendant's vehicle intending to tap the vehicle on the right rear quarter causing it to spin out of control. However, the vehicle flipped and wrecked. Unbeknownst to the officer, the defendant's eight-week-old daughter was a passenger in the truck who later died from her injuries after the wreck.

It appears that the defendant in Pitts did not appeal any issues related to the jury instructions, but only challenged the sufficiency of the evidence. In addressing the causation issue, the court noted that the State was required to prove the causation issue by showing that the defendant's conduct was the proximate cause, as well as “the cause in fact” of the death. The court held that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant's actions of eluding an officer at high speed in a reckless manner with a baby in his truck played a substantial part in bringing about the child's death and that the death was a reasonably probable consequence of the defendant's actions. In so holding, the court virtually ignored the fact that it was the officer who intentionally caused the collision by attempting to stop the vehicle using the Pursuit Intervention Technique.

In Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972), where a car left the roadway after a tire had blown out and the driver appeared to be the only person at the scene, the Court of Appeals held that a jury can consider strong circumstantial evidence that there was a corpus delicti.

To determine what caused the death of the victim consider whether (1) the injury itself constituted the sole proximate cause of the death; (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause. Brown v. State, 152 Ga. App. 273, 262 S.E.2d 497 (1979); Wilson v. State, 190 Ga. 824, 10 S.E.2d 861 (1940).

Where there is no testimony except that of witnesses who testify they do not know how the deceased met her death, the evidence is insufficient to sustain the conviction, since it may be presumed that death resulted from natural causes. Brown v. State, 152 Ga. App. 273, 262 S.E.2d 497 (1979), quoting Martin v. State, 102 Ga. App. 216, 115 S.E.2d 859 (1960). Hence, the State has the burden of proving through the coroner or medical examiner how the death occurred.

However, in Wimbush v. State, 185 Ga. App. 76, 363 S.E.2d 347 (1987), the Court of Appeals held that the mere fact that there was no specific testimony that the extensive injuries suffered in the collision were the proximate cause of the victim's death would not prevent the jury, after hearing a description of the wound which had been inflicted, from determining for themselves whether or not the wound was the cause of death. And, if the jury decided that the wound was a cause sufficient to produce death, and no other cause was shown to have existed, there was a sufficient basis for the conclusion that the death resulted from the wound rather than from some other cause, the existence of which was not supported by the evidence.

Moreover, in McKinney v. State, 213 Ga. App. 498, 445 S.E.2d 550 (1994), the defendant was convicted of second degree vehicular homicide, failure to stop at or return to the scene of an accident (O.C.G.A. § 40-6-270), reckless driving (O.C.G.A. § 40-6-390) and following too closely. The Court of Appeals concluded that the evidence was sufficient to convict the defendant even though there were no eyewitnesses and the State's expert was unable to testify conclusively that the defendant's car struck the other vehicle.

Practice Commentary

The Wimbush, McKinney and Pitts cases highlight the critical need for the DEFENSE to utilize top-level expert witnesses in investigating and preparing a case for trial. In cases where a jury's decision can "go either way," presentation of expert testimony on critical issues such as cause of death, or the causal connection between the traffic violation and the death of a person following that violation is critical. Never depend upon being able to cross-examine a State expert sufficiently to carry the day for acquittal.

Implicit in having to prove that the defendant caused the death of the victim, the State must also prove that the victim died. Testimony from the medical examiner and tendering of the death certificate is sufficient to establish the victim's death. In Everett v. State, 216 Ga. App. 444, 454 S.E.2d 620 (1995), the Court of Appeals held that the State failed to establish beyond a reasonable doubt that the defendant caused the death of the victim. The court specifically stated that the State failed to prove that the victim was dead in that there was no expert or (non-expert) testimony presented regarding the cause of death.

In Gooch v. State, 155 Ga. App. 708, 272 S.E.2d 572 (1980), the defendant was driving under the influence of alcohol when he collided with another vehicle and left the scene of the collision. The victim died as the result of the head-on collision. Under these facts there was no merit to the claim that the evidence was wholly circumstantial and did not exclude every reasonable hypothesis save that of guilt. See also Beaman v. State, 161 Ga. App. 129, 291 S.E.2d 244 (1982).

In Quaile v. State, 172 Ga. App. 421, 323 S.E.2d 281 (1984), it was undisputed that the defendant's vehicle collided with that of the victim as the latter pulled out onto the road; that the police officers found the victim unconscious, drooped over her steering wheel and gasping for breath; and that she died soon after her arrival at the hospital. This evidence established the requisite causal connection between the automobile collision and the victim's death.

In Jackson v. State, 152 Ga. App. 441, 263 S.E.2d 181 (1979), the victim was alive after a head-on collision with defendant's vehicle, but after a third car struck the victim's vehicle, he died. After the first impact, but before the second, the victim, who was pinned against the steering wheel, was heard to say, “I feel like everything is busted up inside me. I'm feeling real bad.”

Although there was some conflict in the evidence, the facts excluded every other reasonable hypothesis except the defendant's guilt where the State showed that the point of impact with defendant's vehicle was in the deceased's lane of traffic. Furthermore, the medical examiner could find no injuries that he could conclude were caused by the second crash. The deceased died of deceleration injuries of the kind typically caused by head-on collisions. The physician's opinion was that the deceased, in fact died of deceleration injuries.

To sustain a verdict of guilty for vehicular homicide in the first degree for failure to stop and render assistance [O.C.G.A. § 40-6-270 (leaving the scene); O.C.G.A. § 40-6-393], the evidence must authorize the jury to conclude that the defendant's failure to stop and render assistance caused the victim's death. Williams v. State, 165 Ga. App. 831, 302 S.E.2d 736 (1983).

In Campbell v. State, 136 Ga. App. 338, 221 S.E.2d 212 (1975), the Court of Appeals held that “[i]t is not a sufficient defense in the law to show that the wound was treated improperly by a doctor, and that if it had been properly treated the deceased might have recovered. What is necessary to cut off criminal responsibility and serve as an independent intervening cause is clear proof that the treatment of a non-mortal wound, and not the injury itself, is the proximate cause of death.”

In Corbett v. State, 277 Ga. App. 715, 627 S.E.2d 365 (2006), Defendant appealed his conviction of vehicular homicide by driving under the influence of alcohol to the extent that it was less safe for him to drive. The Court of Appeals found sufficient evidence to support defendant's conviction for vehicular homicide by driving under the influence with more than 0.08 grams of blood alcohol concentration. In this case, the officer was asked what results of blood alcohol testing were used and he testified to a numerical reading. Defendant stipulated that the instruments used for the charged incident were used to measure the blood alcohol content of his body.

Furthermore, the evidence was sufficient because Defendant's reaction time was slower than it otherwise would have been, and Defendant failed to take evasive action to avoid hitting the victim. The Court held that the vehicular homicide statute requires the State to establish a causal connection between the defendant's violation of the driving under the influence statute and the victim's death. The State is not required to show that the Defendant actually committed an unsafe act.

In Gregory v. State, 277 Ga. App. 664, 627 S.E.2d 79 (2006), the Court of Appeals held that testimony from a witness who observed defendant in his vehicle with his back against the front passenger door and his feet pointed toward driver's door, combined with defendant's admission to both law enforcement officers and the magistrate judge that he was the driver of the vehicle, was sufficient evidence for a rational trier of fact to conclude that the defendant was the driver at the time of the accident.

McGrath v. State, 277 Ga. App. 825, 627 S.E.2d 866 (2006), was another recent case where the Court of Appeals ruled that Defendant's conduct while driving proximately caused the victim's death based on reckless driving even though the victim was struck and killed by a third party after Defendant was involved in a collision. The victim, who had stopped to render aid, was crossing road when the third party struck her.

In support of its holding, the Court held that an injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonable probable consequence of the act.

Vehicular homicide case | Atlanta dui attorney


Contact an Atlanta dui lawyer to dicuss your vehicular homicide case.
Vehicular homicide—Second degree
O.C.G.A § 40-6-393(c) provides:

(c) Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.

This subsection was amended by Act 793 (2008 SB 529), which became effective July 1, 2008, and applies to all offenses occurring on or after that date.

Practice Commentary

Defense counsel must prepare and be ready to argue the inclusion of "lesser included" offenses under the second degree vehicular homicide statute whenever he or she has a client facing first degree (felony) charges as outlined in either subsection (a) or (b). Getting the trial judge to charge a lesser included offense can mean a 15-fold difference in punishment for the client, if the jury finds doubt in the felony count under any of the predicate "serious driving" offenses.

In State v. Nix, 220 Ga. App. 651, 469 S.E.2d 497 (1996), the defendant was charged with vehicular homicide in the second degree pursuant to O.C.G.A. § 40-6-393(b). Count one charged the defendant with vehicular homicide due to failure to yield to right of way as required by O.C.G.A. §§ 40-6-21 and 40-6-1. Count two charged the defendant with vehicular homicide due to failure to yield the right of way as required by O.C.G.A. §§ 40-6-71 and 40-6-1. Count three charged the defendant with failure to yield the right of way as required by O.C.G.A. §§ 40-6-21(a)(1)(A) and 40-6-1. Count four charged the defendant with failure to yield the right of way as required by O.C.G.A. §§ 40-6-21(a)(1)(B) and 40-6-1. And Count five charged the defendant with failure to yield the right of way as required by O.C.G.A. §§ 40-6-71 and 40-6-1. The trial court struck Counts 1, 3, 4 because they alleged violation of O.C.G.A. §§ 40-6-21 and 40-6-1. O.C.G.A. § 40-6-21 defines the meaning given to highway traffic signal indications but does not define any violation of the law. In addition, O.C.G.A. § 40-6-1 does not set out any specific violation, but rather states that unless otherwise provided for, it was a misdemeanor to violate any provision of the chapter. Since neither charge sets out a violation of the law, they cannot be the sole basis for a charge of vehicular homicide. The Court of Appeals affirmed.

Counsel for defendant should always look at the constitutionality of the underlying traffic offense. A second-degree vehicular homicide prosecution was stopped short by a pre-trial ruling in State v. Johnson, 270 Ga. 111, 507 S.E.2d 443 (1998).

Vehicular homicide | Atlanta DUI lawyer

An Atlanta dui lawyer knows O.C.G.A. § 40-6-393(a) and (b) provides:

(a) Any person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(b) Any driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

These two sections are 2008 amendments by Act 793 (2008 SB 529), which became effective July 1, 2008, and applies to all offenses committed on or after such date. Contact an Atlanta dui lawyer today for a free consultation.

As is often the case, once the Government loses a case based upon an adverse appellate decision, the Legislature "adjusts" the language of the existing statute to prevent another acquittal from occurring. The appellate case that triggered this revision of subsection (b) of O.C.G.A. § 40-6-393 was Henry v. State, 284 Ga. App. 893, 645 S.E.2d 32 (2007). The clear purpose of this change in statutory language is to relieve the state from proving that the defendant's "departure" from the scene was the "action" that led to the death.

If a felony vehicular homicide was either committed by an HV driver or with its predicate “serious driving” offense being a violation of O.C.G.A. § 40-6-391 (drunk driving), the conviction will result in 90% of any sentence being served. This is the Pardons and Paroles guideline for convictions on or after January 1, 1998. Any other predicate, serious driving offense (e.g., “hit and run,” reckless driving, attempting to elude) does not trigger the “90% guidelines.” This is a “guideline,” but Pardons and Paroles will typically depart higher, not lower, for these serious offenses. See O.C.G.A. § 42-1-40 which gives Pardons and Paroles these broad powers. This distinction may make a huge difference in plea negotiations in some cases, since disposing of the case on a non-DUI predicate offense offers the chance for a much earlier release from prison. One federal court has struck down any retroactive application of this guideline. Jackson v. State Bd. of Pardons & Paroles, 2002 WL 1609804 (N.D. Ga. 2002) (Not reported in F. Supp. 2d).

One interesting recent case dealt with this “90%” rule in a habeas proceeding based upon ineffective assistance of counsel. In Smith v. Williams, 277 Ga. 778, 596 S.E.2d 112 (2004), trial counsel admittedly told the defendant that his 15 year sentence to first degree vehicular homicide could lead to early release after 5 years. The habeas corpus action was granted due to deficient performance.

Furthermore, O.C.G.A. § 40-6-393(d) provides:

(d) Any person who, after being declared a habitual violator as determined under Code Section 40-5-58 and while such person's license is in revocation, causes the death of another person, without malice aforethought, by operation of a motor vehicle, commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 20 years, and adjudication of guilt or imposition of such sentence for a person so convicted may be suspended, probated, deferred, or withheld but only after such person shall have served at least one year in the penitentiary.

To convict for vehicular homicide in the first degree, the State has the burden of showing beyond a reasonable doubt that the defendant, as a consequence of driving recklessly or under the influence of alcohol, caused the death of another person. In Lesh v. State, 259 Ga. App. 325, 577 S.E.2d 4 (2003), the Court of Appeals held that there was sufficient evidence that defendant was driving his vehicle in a manner exhibiting a reckless disregard for the safety of others supporting his conviction of first degree vehicular homicide. The court found that the evidence adduced at trial showed that defendant was distraught and driving his vehicle at 3:30 in the morning, he had consumed alcohol (BAC = 0.068), was driving outside his lane of travel, struck a clearly discernible bicycle with visible reflectors from behind, and did not react by braking his car. See also, Tillery v. State, 225 Ga. App. 89, 483 S.E.2d 333 (1997); Quaile v. State, 172 Ga. App. 421, 323 S.E.2d 281 (1984); Miller v. State, 236 Ga. App. 825, 513 S.E.2d 27 (1999).

The other driver's “condition” is also relevant where he or she may have been impaired. This can allow the defendant to raise the defense of “lack of causation” due to the impairment (or contribution to the cause due to the impairment) of the other driver. A trial court's ruling excluding such relevant testimony is reversible error. Crowe v. State, 277 Ga. 513, 591 S.E.2d 829 (2004).

This causal connection is often the missing or weak link in the State's case. For example, assume that the deceased party was driving through an intersection. The stop sign had been removed or destroyed. The DUI suspect has the right of way, yet a collision occurs due to the missing stop sign. Is the death caused by the DUI? See Williams v. State, 165 Ga. App. 831, 302 S.E.2d 736 (1983). See also David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003); Miller v. State, 236 Ga. App. 825, 513 S.E.2d 27 (1999); Watkins v. State, 191 Ga. App. 87, 381 S.E.2d 45 (1989); McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986). In such cases an expert on accident reconstruction is critical to your client's chances to win the case (or receive a reduced plea). See Appendix 12, infra, for a list of possible experts.

Sunday, January 13, 2013

Contact a DUI lawyer in Atlanta | Atlanta DUI lawyer Bryan Howard


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

* * *


(2) Under the influence of any drug to the extent that it is less safe for the person to drive[.]

Prior to the Supreme Court's ruling in Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), this was probably the least used DUI Code section. The “less-safe” DUI drugs statute, O.C.G.A. § 40-6-391(a)(2), requires proof that the quantity or amount of the prescribed or contraband or over-the-counter drug in the person's system caused impairment or rendered the accused to be a “less safe” driver. See Webb v. State, 223 Ga. App. 9, 476 S.E.2d 781 (1996). But see Walker v. State, 239 Ga. App. 831, 521 S.E.2d 861 (1999), for an atrocious conviction followed by an even more atrocious appellate decision.

Most reported cases involving prescribed medications arise as a result of impairment by both alcohol and drugs. 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, as of January 1, 2008, changes in Georgia law under O.C.G.A. § 40-5-75 pertaining to loss of driving privileges for certain drug-related convictions (whether behind the wheel or not) 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 on to the end of any other license suspensions. See O.C.G.A. § 40-5-75(i). Contact an Atlanta DUI lawyer about your case.

Monday, January 7, 2013

Multiple offenses of DUI and their effect on the license | Atlanta DUIlawyer

Prior to 1993, an attorney who was asked to handle a DUI case focused primarily upon the criminal aspects of the case. Since January 1, 1993, however, Georgia implemented administrative license suspension laws that affected a substantial number of motorists charged with DUI. In 1994, new laws were passed that assured that 95% of all people charged with DUI in Georgia will have some type of administrative hearing involved in their case. The effective date of these changes was January 1, 1995.
Since the 1970s, anyone who refused to take a chemical sobriety test at the request of an officer having probable cause to ask for such a test faced possible administrative license suspension for having refused the State's test. In the early 1970s the suspension was 90 days. The suspension was later changed to “6 months to 12 months” (depending on certain conditions), and now all refusals are for 12 months. As has always been the case in Georgia, a refusal suspension precludes any opportunity to obtain a work permit or temporary driving privileges while the suspension period is “aging” off. The DDS staff refers to this as a "hard suspension," meaning that someone in this status has no privilege to drive whatsoever.
With the addition of administrative license suspension laws, a person can no longer escape the penalties of administrative suspension by simply taking a test. Persons age 21 and over who have no prior DUI offenses in the 5-year period immediately preceding arrest face a 1-year suspension for taking a test and yielding a BAC of 0.08 grams percent or higher. These drivers may seek a 30-day temporary "work" permit immediately after conviction by paying a fee to DDS of $25. The person seeking to obtain this permit needs to be a Georgia licensed driver. In addition, he or she will either need to have (a) an Affidavit of First Conviction or (b) certified copies of the final disposition of his or her case, including the sentencing sheet and copies of any and all uniform traffic citations (front and back) or the accusation. All documents need to be certified by the clerk of court.
The first offender (age 21 and over) may apply for full reinstatement after 30 days by attending the Risk Reduction program and paying $200 ($210 for walk-in reinstatement) pursuant to O.C.G.A. § 40-5-67.2. Similar administrative suspension rules apply to underage drivers and persons operating a commercial vehicle, except the per se limits are 0.02 grams percent and 0.04 grams percent, respectively. Furthermore, this only applies to reinstatement of the REGULAR driver's license, and (if otherwise not eligible for certain categories of license, such as reissuance of the CDL for at least 12 months) only a regular license may be issued.
For a second offense within a 5-year term, the offender faces a 3-year suspension. During the first 12 months of suspension, no driving permit of any type is allowed. Legislation in 1999 [the so-called “Heidi's law”] in 2000 and 2001 dramatically altered the previous rules for reinstatement after 12 months. Following these changes, an adult whose license is administratively suspended for a second DUI offense in 5 years must wait EIGHTEEN months to get his/her license back (O.C.G.A. § 40-5-67.2(a)(2)) or seek early reinstatement by use of an approved ignition interlock device. DDS takes the position that 100% of all “second-in-five” offenders MUST get the interlock device for 6 months as a condition to any future re-licensing. Under O.C.G.A. § 42-8-112(b)(3), an ignition interlock device must be installed for 6 months on ANY vehicle to be driven by the suspended driver. This assumes, however, compliance with other prerequisites to issuance of the interlock permit, such as completing the Risk Reduction program and getting enrolled in or completing the now-mandatory DHR 17-week alcohol and drug course. Treatment “clearance” documents (for alcohol or drugs) are now required in all cases involving second or subsequent offenders. See http://www.dds.ga.gov for the required steps.
A third offender within a 5-year period (a person who had 2 prior offenses within a 5-year time frame) faces a 5-year revocation of his or her license. The person is not eligible for any limited driving privileges whatsoever unless he or she is able to qualify for a provisional driver's license under O.C.G.A. § 40-5-58(e). The requirements for eligibility for this provisional license at the 2-year mark were not (and still are not) a simple matter of filing paperwork. These provisional license requirements differ from any other provision in Georgia law regarding early reinstatement of driving privileges. Moreover, beginning with the arrests July 1, 2001 and after, DDS takes the position that 100% of drivers licensed in the State of Georgia who are age 21 and over MUST install an ignition interlock device for at least 6 months BEFORE re-licensing of any type can occur.
Drivers under age 21 at the time of disposition of a second or third offense (within 5 years) are not eligible for the early reinstatement (2nd offenders) or provisional license (3rd offender) by installation of an interlock device. These under 21 offenders must wait a full 18 months (2nd offense) or 30 months (3rd offense). Contact an atlanta dui lawyer for a free consultation.

Atlanta DUI lawyer | 2nd DUI suspensions ramifications on Georgialicense

Upon conviction of a second offense of driving under the influence of intoxicants (DUI) within five years, the driver's license will be suspended for three years.1 At the end of 120 days, the person may apply to reinstate his or her driver's license, except that if such license was suspended as a result of a second DUI conviction within five years, such person is not eligible to apply for license reinstatement until the end of 18 months.2 A driver's license suspended as a result of a DUI conviction will not become valid and must remain suspended until such person submits proof of completion of a DUI alcohol or drug use risk reduction program, provides proof of installation and maintenance of an ignition interlock device for a period of six months coinciding with the issuance of an ignition interlock device limited driving permit unless waived due to financial hardship, and pays the prescribed restoration fee.3 Any person whose driver's license has been suspended as a result of a second conviction for violating the DUI provisions within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, may apply for a limited driving permit after serving at least 120 days of the suspension required for such conviction and providing a certificate of eligibility from a drug court program in the court in which he or she was convicted of the offense for which such suspension was imposed or proof of enrollment in clinical treatment.4 An ignition interlock device limited driving permit will be valid for a period of eight months. Upon successful completion of eight months of monitoring of such ignition interlock device, the restriction for maintaining and using such ignition interlock device will be removed, and the permit may be renewed for additional periods of six months as provided.5
Practice Tip:
For purposes of this paragraph, a plea of nolo contendere to a DUI charge and all prior accepted pleas of nolo contendere within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a plea of nolo contendere is accepted, is considered and counted as convictions. Contact an Atlanta DUI lawyer today for a free consultation.

Tuesday, January 1, 2013

Under 21 yrs old | Atlanta DUI lawyer

§ 1:23. Other DUI “per se” classifications—Drivers under the age of 21—Prior law
Substantial changes were made to O.C.G.A. § 40-6-391(k) by the Georgia General Assembly in 1997 and in 2001:
(k)(1) A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.
(2) Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and 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 period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.
(3) No plea of nolo contendere shall be accepted for any person under the age of 21 charged with a violation of this Code section.
(4) The driver's license of any person convicted of violating this subsection shall be revoked as provided by Code Section 40-5-57.1.
Practice Commentary
The requirement under O.C.G.A. § 40-6-391(k)(2) for all community service to be completed may pose problems if the trial court orders 160 or 480 hours of community service. A sentence of 480 hours of community service means that the person must work an average of 8 hours every day for 60 days. See § 1:34, infra, for an explanation.
In Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999), the Supreme Court rejected an equal protection challenge to O.C.G.A. § 40-6-391(k). Barnett argued that because persons over 21 are presumed not to be under the influence with an alcohol concentration of 0.05 or less (O.C.G.A. § 40-6-392(b)(1)), he was denied his right to equal protection of the law under the State and Federal Constitutions. In rejecting this contention, the court found subsection (k) bore a “reasonable relationship” to the legitimate goal of “[p]rotection of the public safety and safeguarding the physical well-being of children.” See also Firsanov v. State, 270 Ga. 873, 513 S.E.2d 184 (1999).
Former O.C.G.A. § 40-6-391(k) provided:
(k) A person under the age of 18 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.04 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended. Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section. No plea of nolo contendere shall be accepted for any person under the age of 18 charged with a violation of this Code section. Contact an Atlanta DUI attorney today for a free consultation.