Sessions & Fleischman, LLC

Many people ask if they can plead under (or be sentenced pursuant to) the First Offender Act for a Georgia DUI charge. The First Offender Act presents some defendants with tremendous opportunities if they can successfully the sentence imposed by the Court. If a defendant sentenced pursuant to the First Offender Act successfully completes their sentence, they can honestly say that the charge has been dismissed.

The First Offender Act in Georgia Is Not Applicable to (ordinary) DUI Charges

The First Offender Act in state of Georgia provides, in part:

(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:

(1) Defer further proceeding and place the defendant on probation as provided by law; or

(2) Sentence the defendant to a term of confinement as provided by law.

O.C.G.A § 42-8-60.

Unfortunately, the First Offender Act is inapplicable to DUI charges in Georgia:

(f) The provisions of Code Section 17-10-3, relating to general punishment for misdemeanors including traffic offenses, and the provisions of Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section.

O.C.G.A. § 40-6-391.

The First Offender Act May Be Available in A Vehicular Homicide or Serious Injury by Vehicle Case.

However, the First Offender Act can have an important impact of very sever DUI-related charges. For example, DUI – vehicular homicide charges and DUI – serious injury by vehicle charges are subject to the First Offender Act. It seems a little ridiculous, but under state of Georgia law, a misdemeanor DUI charge is not subject to dismissal under the First Offender Act, but a felony vehicular homicide charge for a DUI-related death is subject to the First Offender Act.

Often times, the applicability of the First Offender Act to these very difficult felony cases can be the difference in resolving the cases prior to a trial. Many defendants in felony vehicular homicide cases have never been charged with a felony previously (let alone convicted), so the hope that they will be able to retain their civil rights is an important consideration.

In my mind, the mouth alcohol defense – in whatever form the DUI defense lawyer puts it forward – remains the most reliable defense that we have to a per se DUI charge in Georgia. If the state has made it beyond motions (they have shown that the stop was valid, the arrest was supported by probable cause, implied consent was properly read, consent to testing was voluntarily obtained, and a proper foundation was shown for the test), my 1st course of action is generally to determine (1) if there are any specific issue relative to my client that might make a breath test unreliable and (2) whether the state can show adherence to the observation period requirement in order to eliminate mouth-alcohol contamination of the breath test.

Not Sure Why the Mouth Alcohol Defense Is So Important?

Well, I could write all day about why the mouth alcohol defense to breath tests in Georgia is so important to know and understand, but it’s probably more helpful to hear it from the director of a state’s breath testing program:

The Significance of “Mouth Alcohol” in Breath Testing

The mouth alcohol defense is a breath test defense premised upon the possibility of alcohol from some source other than alveolar air being measured by the testing device. It is important to recognize that the mouth alcohol defense is not limited to the presence of alcohol within the mouth. It is recognized within studies produced by state breath test agency employees that “[c]ontributions to breath alcohol concentration (BrAC) arising from alcohol in the mouth can falsely elevate the reading.”[1] However, we need not (indeed, we should not) limit our consideration of extraneous sources of alcohol to the mouth only.

Residual alcohol that is present along the air passageways, alcohol that is re-introduced to the airways from the stomach, and any other source of alcohol beyond that contained in alveolar air must also be guarded against by the state. The defense bar has long limited this defense by adopting the government’s terminology when discussing the possible impact of residual alcohol in breath testing. The government must ensure that alcohol from any source other than end-expiratory air is protected against.

There are two categories of mouth alcohol defenses.  The first deals with fact-specific defenses such as GERD, where your client has a known condition that may cause mouth alcohol to be present.  The second, and more universally applicable defense addresses law enforcements failure to adhere to their own established testing protocol.  As a general rule, more fact-specific challenges to a breath test are preferred over more general challenges,[2] but this general rule cannot and should not always be followed, particularly in the mouth alcohol realm. Whatever type of defense is used, a basic understanding of the fundamentals of the mouth alcohol defense is critical.

The first step is determining whether you have a fact-specific breath test defense in your case: was your client was chewing tobacco, gum, or did he have any other foreign substance in his mouth prior to the administration of the breath test; did he use mouth spray, inhaler, or mouth wash prior to the administration of the breath test; when was his last drink; does he have any dental devices (bridges, crowns, fillings, etc.) that may trap alcohol, and whether the client has any oral jewelry.[3]

Mouth Alcohol defense to Georgia DUI Per Se Charges and Breath Tests

If you are interested in learning more about how I present a mouth alcohol defense to a Georgia DUI per se charge and breath test, you can watch the entirety of a breath alcohol presentation at my YouTube channel and here is a clip from that mouth alcohol defense presentation:

More Information on “Mouth Alcohol” in Breath Testing

The mouth alcohol defense to DUI breath tests remains viable no matter what breath test machine was used in your DUI case.

The Breathalyzer Models 900, 900A, and 1000, which are no longer in production, require the operator to determine when a deep lung breath sample has been provided. Unlike most modern devices, the Breathalyzer Models 900, 900A, and 1000 do not have an automated slope detection system. Many devices, such as the Draeger Alcotest 9510 and Alcotest 7110 MKIII-C, and the Intoxilyzer Models 5000 and 8000, employ an infrared slope detection system in the effort to detect mouth alcohol. In those devices that use infrared slope detection, the breath testing device is programmed so that it has a “picture” of what an acceptable breath sample should look like.  If the sample does not fall within the acceptable parameters of what the device believes that a breath sample should look like, the machine should produce an error message.  These devices presume that the alcohol concentration will rise sharply until it plateaus (or flattens out).  It is estimated that first 2/3 of the breath sample introduced into the device is discarded in the effort to obtain a test comprised of end-expiratory air.

If the subject’s breath test is performed upon a Breathalyzer Model 900, 900A, or 1000, failure of the officer to comply with 20-minute pre-test observation requirements will be very difficult. In DUI cases involving breath tests performed upon a Breathalyzer Model 900, 900A, or 1000, the officer performing the test is responsible for ensuring that alveolar air is tested. In contrast, if the test is performed upon a device equipped with an infrared slope detector, such as the Draeger Alcotest 9510 or Alcotest 7110 MKIII-C, the practitioner must be prepared to demonstrate the inadequacies of the slope detector. The discussion below of the inadequacies of slope detectors may serve as a good starting point.

Don’t forget to investigate your state’s own internal tests of various breath test devices and their respective ability to detect to mouth/residual alcohol. Below is an example of what you may find:

Identifying Safeguards Necessary To Protect Against the “Mouth Alcohol” Problem

Generally, there are three (3) basic safeguards that are designed to prevent the risk of mouth alcohol artificially inflating breath test results.  First, a 15- to 20-minute deprivation-observation period must be completed.  Second, between the 1^st and 2^nd sample tested, the results must not vary by more than .02 grams. Third, the machine’s mouth alcohol detector, otherwise known as the slope detector, must be functioning properly. If the state fails to establish that any of these 3 safeguards, the mouth alcohol breath test defense is available to us.

A. The Importance of the 15-Minute Observation Period

In “Quality Assurance in Breath-Alcohol Analysis,” Dr. Kurt Dubowski discusses in great detail the importance of requiring an observation-deprivation period of at least 15 minutes and requiring at least two (2) sequential breath specimens.  Dr. Dubowski calls a pretest deprivation-observation period of at least 15 minutes and analysis of least two separate consecutive breath specimens “necessary scientific safeguards in forensic breath-alcohol measurement.”[1]Regarding the 15-minute deprivation-observation period, Dr. Dubowski stated:

Although the aspects of the actual testing process are important in a QA [Quality Assurance] sense, the scientific safeguards are the most critical. A pretest deprivation-observation period of at least 15 minutes should precede the subject test.  During that time period the test subject must refrain from intake of food or drink, smoking, or presence of foreign objects or substances in the mouth (especially use of breath-fresheners and mouthwash), and there must also be assured absence of regurgitation of gastric content or emesis.  In any of the latter events, the mouth is rinsed thoroughly with water at body temperature, and the 15-minute deprivation-observation period is repeated.[2]

The significance of the observation period is illustrated in the regulatory provisions governing the administration of breath tests in California and New York.  Section 1219.3 of Title 17 of the California Code of Regulations requires at least 15 minutes of continuous observation of the subject prior to administering a breath test:

A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.

Section 59.5 of the New York State Department of Health Rules and Regulations for Chemical Tests (Breath, Blood, Urine and Saliva) also requires observation of a suspect for at least 15 minutes prior to the administration of a breath test:

The following breath analysis techniques and methods shall be a component of breath analysis instrument operator training provided by training agencies and shall be used by operators performing breath analysis for evidentiary purposes:

***

(b) Continuous observation of the subject shall be maintained for at least 15 minutes prior to the collection of the breath sample during which period the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked or be allowed to place anything in his/her mouth; if the subject should regurgitate, vomit, smoke or place anything in his/her mouth, an additional 15-minute waiting period shall be required.

Further, Section 59.4(a)(2) of the New York State Department of Health Rules and Regulations for Chemical Tests (Breath, Blood, Urine and Saliva), which requires that “[b]reath samples collected for analysis shall be essentially alveolar in composition[,]” is incorporated into Section 59.5(a).

B. The Importance of Consecutive Analyses of Breath Samples

Regarding the consecutive analyses of breath samples, Dr. Dubowski stated:

Repeating an analysis is a widely employed QA practice in chemical analysis. Collection and sequential analysis of at least two separate breath specimens has become accepted practice, as recommended by the NSC Committee on Alcohol and Other Drugs. The Committee recommended that ‘[t]he breath samples should be collected at intervals of not less than 2 nor more than 10 minutes, after an initial deprivation period of at least 15 minutes.’ Any difference between the duplicate results greater than a predefined maximum should be regarded as an indication of a potential problem. Conversely, acceptable agreement of the duplicate results eliminates the unrecognized presence of such actual or supposed irregularities as the effects of mouth alcohol….[3]

C. Limitations of the Slope Detector

The limitations of the mouth alcohol (slope) detector, particularly of the Intoxilyzer 5000’s slope detector, have been studied a great deal.[4] There are numerous studies conducted by state employees that testify primarily on behalf of the state. It is important to understand the literature produced by experts that testify primarily on behalf of the defendants, but it is more important to know the basic literature produced by the state employees.  When forced to confront a state crime lab witness regarding the reliability of the slope detector, be prepared to address the more conservative figures in “The Effect of Swallowing or Rinsing Alcohol Solution on the Mouth Alcohol Effect and Slope Detection on the Intoxilyzer 5000,” authored by J.G. Wigmore and G.M. Leslie.[5]

Basically, Wigmore and Leslie had subjects, who had not been drinking prior to the commencement of the study, rinse their mouths with alcohol and drink alcohol in order to evaluate the effectiveness of the Intoxilyzer 5000’s mouth alcohol detector. Subjects were tested after both drinking events after 5 minutes and 10 minutes.  The most troubling statistics with regard to the reliability of the slope detector are produced in Table II of their study.  Obviously, most people charged with DUI/DWI have actually swallowed alcohol.  Wigmore and Leslie found that, with regard to those subjects that swallowed alcohol, the Intoxilyzer 5000 correctly detected mouth alcohol in only 66% of subjects after 5 minutes.  After 10 minutes, the Intoxilyzer 5000 only accurately detected mouth alcohol in 30% of subjects.  After swallowing alcohol and testing 5 minutes later, 2 subjects had a reported BrAC concentration of .100 and .118. The authors presume that the effect of prior drinking, in combination with a mouth alcohol event, would be negligible, but there was no testing of that hypothesis.[6]

[1] Kurt M. Dubowski, Quality Assurance in Breath-Alcohol Analysis, 18 J. Anal. Toxic., 306, 308 (1994)(emphasis added).

[2] Id. at 309.

[3] Id. at 310.

[4] Given the effectiveness of strict adherence to the 15-minute observation requirement and requiring a .02 agreement between subject samples, one might be surprised by the volume of study on the slope detector. However, as discussed below, the willingness of the courts to permit the use of breath test evidence where these requirements have not been followed has most likely required further inquiry into the reliability of the slope detector.

[5] J.G. Wigmore and G.M. Leslie, The Effect of Swallowing or Rinsing Alcohol Solution on the Mouth Alcohol Effect and Slope Detection of the Intoxilyzer 5000, 25 J. Anal. Toxic., 112-114 (2001).

[6] Id.

The Willingness of the Courts To Admit Questionable Breath Testing Evidence Has Fostered the “Mouth Alcohol” Defense

Breath testing evidence is usually admissible even when law enforcement fails to follow their own department’s protocols regarding the observation period prior to breath testing.  This failure to perform the observation period “goes to weight, not admissibility.”  It is well-recognized within the forensic breath-alcohol testing community that “[m]ost mouth alcohol-based challenges can be successfully avoided by strictly adhering to a pretest observation and alcohol deprivation period and demonstrating agreement between duplicate breath tests.”[1] Nonetheless, the mouth alcohol defense remains fertile ground largely as a result of the refusal of the courts and/or legislatures to require law enforcement to adhere to scientifically acceptable protocol during the administration of breath tests.  As demonstrated in Appendix A, most courts have continually held that questionable adherence to the required observation-deprivation period goes to the weight, not the admissibility, of breath test evidence.  As a result, almost every breath testing case will come with a built-in defense that may not even require an expert.

Closing Argument in a “Mouth Alcohol” Breath Test DUI Defense Case

Below is a portion of a sample closing argument that I did in a seminar for the New York State Bar Association. This closing argument was an adaptation from a trial that I recently had in Fulton County, in which a mouth alcohol breath test defense was used:

I have a client that is about to go trial on a charge of DUI per se and DUI less safe.  She is charged with driving while having an unlawful alcohol concentration of .02 grams or more.  She was under 21 years of age when she was arrested.  She submitted to the breath test and the results showed that her breath alcohol level was less than .08 grams.

We have had a hearing upon the admissibility of the breath test, and the court has ruled that the breath test will be admissible in the trial of the case.  Nonetheless, we plan to fight the DUI charge.

The breath test in this case, and in every under 21 case with a test result under .08 grams is particularly troubling to me.  The problem stems from the system of calibrating the Intoxilyzer 5000 in Georgia.  Our calibration program involves an employee of the Georgia State Patrol visiting the machine once a quarter and checking the accuracy of the machine using a “known solution.”  The known solution supposedly has an alcohol concentration of .08 grams.

Never once during the calibration process are breath testing machines tested to determine whether they can accurately detect alcohol concentrations below .08.  These breath testing machines are relied upon on a daily basis to prosecute drivers under the age of 21 for driving with an unlawful alcohol concentration below .08 grams, but no effort has ever been made to determine whether the machines function at this lower level.

Should these results be accepted without any effort being undertaken to verify their acceptability?

Don’t Rely on Numbers to Choose a DUI Lawyer

One of the most frequent questions I am asked by potential DUI clients is: What are my chances of winning my DUI case? My answer is predictable and, in typical lawyer fashion, too vague to be useful: Well, it all depends on what the evidence shows. So, the prospective clients follow-up with a sound question: What is your win percentage in DUI cases?

This is the percentage that really seals the deal for most clients, but I want to be clear about how completely useless these figures are. It should also be clear that any lawyer who has any semblance of common sense can make this figure whatever they want. A client that really takes the time to understand the process that a criminal case undergoes will understand that statistics are no way to choose a lawyer.

What is a “win” to one person may not be a “win” to another person. By playing with the definition of a win, a lawyer can easily include in the “win” category what I would define as a loss. What if the “win” for the lawyer included a guilty plea to DUI with no jail time on “run-of-the-mill” .083 DUI charge for a driver over 21 years of age? I can’t imagine calling that a win, but I am sure that some lawyers out there do.

Another point of confusion exists in what clients think a dismissal of the charges is and what lawyers define a dismissal of the DUI charges as. When prospective DUI clients speak of a dismissal, they generally believe that a dismissal means that the charge goes away with no penalties imposed upon them. However, when lawyers speak of dismissal of DUI charges in Georgia, this generally includes dismissals with a plea to a non-DUI offense. Generally, most clients will still suffer some penalties (fines, probation, community service, substance abuse evaluation, etc.) with the plea to the non-DUI offense. This confusion arises from the fact that under Georgia law reckless driving or any other non-DUI offense is not a lesser included offense of DUI, so in order for a plea to a non-DUI offense to be entered, the DUI must be dismissed.

The point is this: There is no accepted definition of a “win” in a Georgia DUI case. Most people think that a “win” is when a lawyer goes in and presents the case to a judge or jury, and his client is found not guilty. Contrary to this thinking, most lawyers define a “win” much more broadly to include negotiated resolutions (which really means “pleas”). I am not here to say that negotiated pleas are not a great resolution for many clients. They very well may be, but what I know is that what clients consider a win, particularly in the DUI lawyer interview process, and what lawyers consider a win are usually 2 very divergent things. Buyer beware: It is common sense, but past results are in no way indicative of what will occur in your case.

If you are not filing motions to exclude DRE evidence in DUI drugs less safe cases, you are missing an incredible opportunity. You are missing an opportunity to knock out the evidence that the State really needs in order to attempt to show that your client is impaired as a result of drugs. Many people are unfamiliar with Harper motions. They can be intimidating because it requires lawyers to understand a little bit about the scientific process. That should not be the case.

Harper motions motions to challenge the use and admissibility of opinions based upon DRE evidence are simple to make. Once you raise the issue, the State is required to show the Court that the evidence has been accepted by other courts routinely (DRE evidence has not been) or that it is has reached a stage of scientific verifiability (it has not).

So, when you are confronted with a DUI “expert” who has been through hundreds of hours of training and claims to be a drug recognition expert, look to the law. Do not be fearful of the science because they do not have any to establish the reliability of this evidence.

THERE IS NO LONGER A 10-DAY LETTER IN A GEORGIA DUI CASE. THERE IS NOW A 30-DAY LETTER IN GEORGIA DUI CASES.

YOU NEED TO KNOW THAT THE 10-DAY LETTER IN A GEORGIA DUI CASE NO LONGER EXISTS. We now have a 30-day letter requirement. Contrary to what many people believe: this letter is not some magical tool. The 10-day letter in a Georgia DUI case is important, but it does not mean that your Georgia driver’s license or privilege to drive in Georgia will not eventually be suspended. The 10-day letter is simply a request for hearing upon the suspension which the arresting officer initiated as result of (1) submitting to the state-administered chemical test which produced results greater than the legal limit or (2) refusing to submit to the state-administered chemical test.

O.C.G.A. 40-5-67.1 (g)(1) now requires the submission of $150.00 filing fee with your 30-day letter:

A person whose driver’s license is suspended or who is disqualified from operating a commercial motor vehicle pursuant to this Code section shall remit to the department a $150.00 filing fee together with a request, in writing, for a hearing within ten business days from the date of personal notice or receipt of notice sent by certified mail or statutory overnight delivery, return receipt requested, or the right to said hearing shall be deemed waived. Within 30 days after receiving a written request for a hearing, the department shall hold a hearing as is provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” The hearing shall be recorded.

Field sobriety tests and physical manifestations (such as balance and ability to walk) are, at best, circumstantial evidence of my client’s alleged impaired driving ability in most DUI cases. This evidence relates to the state’s charge of DUI less safe charge in Georgia. And, in every Georgia DUI case that goes to trial, I have inevitably obtained a instruction to the jury which states:

To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. The burden is on the State to present evidence that, beyond a reasonable doubt, excludes every other reasonable hypothesis except that of the guilt of the Defendant.

Once we understand the limitations of circumstantial evidence and the substantial hurdles created by the state’s reliance upon circumstantial evidence, we can capitalize upon alternative explanations for our client’s alleged indicia of impairment. In evaluating whether or not a medical condition or physical limitation could have affected a client’s ability to perform a test, the DUI lawyer must be cognizant of the type of evidence you need to provide to the trier-of-fact (the judge or jury) in order to establish this type of defense. Reliance upon a defendant’s testimony to establish physical limitations that are not evident has some inherent limitations and is certainly a pitfall for the unwary.

Professional medical testimony regarding the limitation is the preferred form of evidence to establish that the DUI suspect was not a proper candidate for field sobriety evaluations. Certain limitations are more obvious than others. For example, lower back injuries, leg injuries, prior surgeries that are established, not soft tissue injuries, are those types of injuries which we can point to and say confidently that the officer’s observation that he or she related to alcohol or drug impairment could have been caused by these concrete conditions.

Many prosecutors, Judges, and even defense lawyers do not under the involuntary intoxication defense to Georgia DUI charges. Of course, the facts need to support the defense, but in the right case, involuntary intoxication is a powerful and intuitive defense. Colon v. State, 256 Ga. App. 505, 568 S.E.2d 811 (2002), provides very useful direction on the defense of involuntary intoxication:

5. In his fifth and sixth enumerations, Colon complains of the trial court’s charge on involuntary intoxication and its failure to give his Request to Charge No. 9. They are considered together.

(a) Regarding the involuntary intoxication charge, Colon’s specific objection is to the court’s instructing the jury that “[t]he defense of involuntary intoxication is not available to excuse driving under the influence.” This instruction amounted to reversible error.

The entire portion of the court’s charge relating to involuntary intoxication was that

[a] person shall not be found guilty of a crime when at the time of the conduct constituting the crime, the person because of involuntarily [sic] intoxication did not have sufficient mental capacity to distinguish between right and wrong in relation to the criminal act. Involuntary intoxication means intoxication caused by (a) consumption of a substance through excusable ignorance or (b) the coercion, fraud, trick, or contrivance of another person. The defense of involuntary intoxication is not available to excuse driving under the influence. It absolves responsibility only if the intoxication renders the defendant incapable of distinguishing right from wrong. If the inability to distinguish right and wrong is the product of voluntary intoxication, there is no defense.

[10][11] While it is true that the jury charge must be considered as a whole when determining its correctness, Roberson v. State, 236 Ga.App. 654, 655(1), 512 S.E.2d 919 (1999), this charge contained the clearly erroneous statement that involuntary intoxication was not available as an affirmative defense to driving under the influence. See Larsen v. State, 253 Ga.App. 196, 198(1), 558 S.E.2d 418 (2002); Flanders v. State, 188 Ga.App. 98, 371 S.E.2d 918 (1988); accord Commonwealth v. Darch, 54 Mass.App.Ct. 713, 767 N.E.2d 1096 (2002). This declarative assertion by the trial judge was straightforward and unambiguous. The modifiers following it are not likely to have erased an erroneous impression from the minds of the jurors. Furthermore, the error was not harmless, as the defendant raised the issue of involuntary intoxication in his testimony when he claimed that someone put an unknown drug in his drink, unbeknownst to him. See Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991).

The case at bar illustrates again that instructing juries in the precise language of the Suggested Pattern Jury Instructions serves the goal of judicial economy as well as the goal of providing justice to both sides, the state and the defendant.

A critical part of the defense of DUI drugs cases is challenging the admissibility and reliability of DRE Evaluations through a strategic motions practice.

Brief in Support of Motion to Exclude Romberg Evidence

The evidence and testimony addressed in this motion is generically referred to as the “Romberg test” by law enforcement. It is more accurately called the “Modified Romberg Balance Test.” The “Romberg test” at issue, in this case, consists of the following:

• The subject is instructed to stand straight with their feet together and their arms down at their sides;
• The subject is instructed to remain in that position until instructions are completed;
• The subject is instructed that when told to begin, the subject should tilt their head back slightly and close their eyes.
• With their head titled back and eyes closed, the subject is instructed to estimate the passage of 30 seconds.
• The subject is instructed to bring their head forward, open their eyes, and say “Stop” when they believe that 30 seconds has elapsed.
• When the subject opens their eyes, ask them how much time they thought elapsed.

The determination of whether a scientific principle or technique is admissible in a criminal case in Georgia is governed by the rule stated in Harper v. State, 249 Ga. 519, 525-26, 292 S.E.2d 389 (1982). The Harper rule requires that the Court in a criminal case determine “whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law….” Id. at 525. Otherwise stated, the Court must determine whether the scientific principle or technique “has reached a scientific stage of verifiable certainty” or “‘rests upon the laws of nature.’” Id. (citations omitted). “[E]vidence based on a scientific principle or technique is admissible only if the science underlying the evidence is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law.” Parker v. State, 307 Ga.App. 61, 704 S.E.2d 438 (2010).

In Harper, the Georgia Supreme Court described the types of evidence that our trial courts should look to in determining whether a scientific principle or technique has reached a scientific stage of verifiable certainty. The Harper court explicitly expressed its disapproval of the “counting heads” rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Id. According to the Harper Court:

The trial court may make this determination from the evidence presented to it at trial by the parties; in this regard, expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises, or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.

Id. at 525-26. “[O]nce a procedure has been utilized for a significant period of time, and expert testimony has been received thereon in case after case, the trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace.” Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, 807 (1996).

Certain evaluations commonly employed in DUI investigations, such as the “ABCs,” the “Walk-and-Turn Test,” and the “One-Leg Stand Test,” have been recognized as “physical dexterity exercises that common sense, common experience, and the ‘laws of natures” share are performed less well after drinking alcohol.” Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803, 807 (1996). Accordingly, “[t]he screening of these gross motor skills is hardly the type of ‘scientific principle or technique’ to which Harper referred, and this Court will not hold these physical manifestations of impairment, which could be as obvious to the layperson as to the expert, to such a standard of admissibility.” Id.

In contrast to those tests which, in large part, test gross motor skills, certain tests typically employed in DUI investigations required a determination that the Harper standard has been satisfied. In Hawkins, the Court of Appeals clarified that the horizontal gaze nystagmus test is a scientific test that required a Harper foundation, and the Court further held “that the “HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” Id. at 808. Thus, the Hawkins Court held that the trial court was no longer required to hear expert testimony in order to introduce evidence of HGN. Id. In reaching its conclusion that the production of evidence to satisfy the Harper standard for admissibility was no longer required, the Court observed the following:

• the effect of alcohol on the eyes and inducing horizontal gaze nystagmus is recognized in The Merck Manual of Diagnosis and Therapy;
• the horizontal gaze nystagmus test has undergone validation studies sanctioned by the National Highway Traffic Safety Administration (Burns & Moskowitz, “Psychophysical Tests for DWI Arrest,” S. Department of Transportation, Rep. No. DOT-HS-802-424 (1977); Schweitz & Snyder, “Field Evaluation of a Behavioral Test Battery for DWI,” U.S. Department of Transportation, Rep. No. DOT-HS-806-475 (1983);
• the horizontal gaze nystagmus test has been employed by law enforcement in all 50 states;
• the relationship of horizontal gaze nystagmus to alcohol consumption was recognized in the premier DUI defense treatise (Erwin, Defense of Drunk Driving Cases (3rd ed. 1985), 8.15A[3]);and
• “The characteristics, theory, and scientific acceptability of HGN testing in relation to DUI cases has been discussed in numerous articles and in numerous judicial opinions. See particularly, State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, appendices A & B 182-184, 149 Ariz. 269, 718 P.2d 171 (1986); State v. Nagel, 30 Ohio App.3d 80, 506 N.E.2d 285 (1986); see also, e.g., Barnes, The Effects of Ethyl Alcohol on Visual Pursuit and Suppression of the Vestibulo-Ocu- lar Reflex, 406 ACTA Otolaryngol Supp., p. 161 (Sweden 1984) (ethyl alcohol disrupted visual pursuit eye movement by increasing number of nystagmic “catch-up saccades”); Goldberg, Effects and After-Effects of Alcohol, Tranquilizers and Fatigue on Ocular Phenom- ena, Alcohol and Road Traffic, p. 123 (1963) (of different types of nystagmus, alcohol gaze nystagmus is the most easily observed); Zyo, Medico-Legal and Psychiatric Studies on the Alcoholic Intoxicated Offender, 30 Japanese J. of Legal Medicine, No. 3 (1976), p. 169 (recommends use of nystagmus test to determine somatic and mental symptoms of alcohol in- toxication, as well as blood alcohol content).”

Hawkins, 476 S.E.2d at 807-808.

When a given type of scientific evidence or technique has been recognized as meeting the Harper foundation, the scope of the opinions which may be rendered based upon the scientific evidence or technique must still be scrutinized to determine compliance with Harper. Hawkins authorized the use of the HGN test as a basis for an opinion regarding “impairment” by alcohol. However, Hawkins does not authorize the use of the HGN test as a basis for an opinion as to a specific numerical blood-alcohol concentration. Bravo v. State, 304 Ga. App. 243, 696 S.E.2d 79 (2010)(expert testimony regarding use of the HGN to determine a specific blood-alcohol concentration was insufficient to meet the Harper standard for admissibility).

There is no authority for judicial notice that the “Romberg Test” satisfies the Harperstandard. No Georgia court has addressed whether the “Modified Romberg Balance Test” has satisfied the Harper standard of reaching a scientific stage of verifiable certainty. There are Georgia cases in which a “Romberg test” was admitted as evidence and considered by trial courts, but there is no case in which an objection to the admissibility of “Romberg” evidence was preserved for consideration on appeal. The Romberg test is not which has repeatedly presented to the Court of this state and supported by expert testimony accepted.

Respectfully Submitted, this ___ day of ____________, ———-.

Motion in Limine to Exclude Evidence of “Romberg” Evaluation, Eyelid Tremors, Body Tremors, Reddening of The Conjunctiva, and Raised Tastebuds From the Trial of This Case

Comes Now, the Defendant, by and through the undersigned counsel of record, and moves this Honorable Court to exclude from trial all evidence regarding the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds as being indicative of the Defendant driving under the influence of drugs to the extent that he was a less safe driver.  In furtherance of this motion, the Defendant shows this Court the following:

On _________________, ——– of the —————- requested that the Defendant perform a field sobriety test.  The test is referred to as the “Romberg” evaluation. Trooper —- stated that he observed that the Defendant improperly estimated 23 seconds to be 30 seconds, and the Defendant allegedly exhibited eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds.

The Defendant challenges the admissibility of the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds as being indicative of the Defendant driving under the influence of drugs to the extent that he was a less safe driver.  These evaluations and observations constitute scientific evidence and as such should not be received into evidence without the proper foundation.  See Harper v. State, 249 Ga. 519 (1982).

Legal Argument

Scientific evidence is evidence-based upon principals of science and “shrouded in the mystery of professional skill or knowledge.”  See, Metropolitan Life Insurance Company v. Saul, 189 Ga. 1, 9 (1939).  Such evidence is “beyond the ken of the average [person].”  See, Williams v. State, 254 Ga. 508, 510 (1985).  The evaluations and observations described above constitute scientific evidence.  The average person would not understand that alleged problems estimating the passage of time, eyelid tremors, body tremors, reddening of the conjunctiva, and raised tastebuds or other such alleged symptoms would be indicative of someone under the influence of drugs.  These are not commonsense evaluations and observations.

—————’s alleged evaluations and observations are similar to the Horizontal Gaze Nystagmus test that police officers often administer in DUI cases.  “The HGN is a test manifesting in an involuntary rapid and then slow jerk of the eye.”  Manley v. State, 206 Ga. App. 281 (1992).  That evaluation is a “scientific procedure.”  State v. Pastorini, 222 Ga. App. 316, 319 (1996).  On the other hand, field sobriety evaluations that “demonstrate a suspect’s dexterity and ability to follow directions do not constitute scientific evidence.”  Id. at 318.  For evaluations such as the One Leg Stand test, which was not used in Defendant’s case, an average person can have an understanding that such evaluations would generally be performed less skillfully by a person who was under the influence of an intoxicant.  This, however, is not true for evaluations and observations such as HGN, the Rhomberg Evaluation, tremors, and eye symptoms about which the officer reported in Defendant’s case.  There is not a commonsense conclusion accessible to the average person that these observations are indicative of someone who is under the influence of an intoxicant.  These are not “behavioral observations.” Rather, the evaluations and observations in question are medical observations that require knowledge of the health sciences, medicine, or perhaps toxicology to fully comprehend.  See Id. at 319.  It is simply not commonsense that a person who is under the influence of an intoxicant, be it marijuana or anything else, would have trouble estimating the passage of thirty seconds, would have tremors, raised taste buds, or other eye symptoms.

Because the evaluation and observations constitute scientific evidence, the State must establish the foundation required by Harper v. State, 249 Ga. 519 (1982), before the Court can admit the evidence.  Harper requires that the court make the determination that the evidence “has reached a scientific stage of verifiable certainty… [and that the] procedure rests upon the laws of nature.”  Id. at 525.  The court makes such a determination from “the evidence available to [it];” this may include expert testimony, exhibits, treatises, or the rationale of cases from other jurisdictions.  Id. at 25-26.  Once the evidence is “recognized in a substantial number of courts” the court may take judicial notice that the scientific evidence has reached a stage of verifiable certainty, the way that a court may admit the results of the HGN evaluation.  See Harper, 249 Ga. at 525.

The Appellate Courts of this State have not considered the evaluation and observations at-issue in this case in the way that the courts have considered the HGN evaluation.  Unless the State establishes the foundation required by Harper, the evaluations, the observations, and any conclusions drawn from them should not be admitted against the defendant.

Defendant instead contests the science and the validity of using these evaluations and observations to form the basis of an opinion that the Defendant was under the influence of intoxicants at the time of his arrest.  Because the officer’s investigative technique constituted the gathering of scientific evidence that has not been recognized by a substantial number of courts and has not been utilized for a significant period of time with expert testimony being offered in case after case, the trial court is not authorized to admit the evidence without the proper foundation.  See, Izer v. State, 236 Ga. App. 282 (1999).

CONCLUSION

The Defendant respectfully requests that this Honorable Court enter an order that the “Romberg” evaluation, eyelid tremors, body tremors, reddening of the conjuctiva, and raised tastebuds, in the context of being indicia of a person who is under the influence of drugs to the extent that the person is less safe to drive, are scientific evidence.  As such, the Court should require the State to meet the foundation required under Harper before the Court can receive the evidence in question.

Maryland Order Excluding DRE Evaluation

Categories of Drugs that DREs Try to Identify in Georgia DUI Drugs Less Safe Cases

1. CNS Depressants and GA DUI Drugs Charges

CNS depressants “slow” down a person’s brain and central nervous system. Alcohol is the most prominent CNS depressant. Other popular CNS depressants include anti-anxiety tranquilizers, anti-depressants, anti-psychotic tranquilizers and various derivatives of barbituric acid. It seems anomalous to classify “anti-depressants” as depressants; however, medical doctors, toxicologists and DREs generally classify drugs according to their effect on the brain and body, not their effect on mood. Specific drugs include Xanax,Valium, Rohypnol, Halcion, Soma, and GHB.

2. CNS Stimulants and GA DUI Drugs Charges

CNS stimulants “speed up” a person’s mind and central nervous system. Cocaine and methamphetamine are the two most commonly abused stimulants. Ritalin, Cylert, ephedrine, and caffeine are other well-known stimulants.

3. Hallucinogens and GA DUI Drugs Charges

Hallucinogens impair a user’s ability to perceive reality by distorting perceptions of sight, sound, touch, and odors. They may even cause “synesthesia,” a phenomenon where a person “mixes” the senses. For example, a person may “see” sounds or “hear” colors. This category includes natural substances like peyote, psilocybin, and morning glory seeds, as well as synthetic substances like lysergic acid (LSD) and Ecstasy (MDMA).

4. Pcp (and Its Analogs) and GA DUI Drugs Charges

PCP and its analogs, including Ketamine, are “dissociative anesthetics.”They are extremely dangerous. People under the influence of PCP may be very violent.

5. Narcotic Analgesics and GA DUI Charges

Narcotic analgesics include opiate class drugs and similar synthetic drugs. Most prescription painkillers are narcotic analgesics. This category includes heroin, morphine, codeine, methadone, Oxycontin, Vicodin, Percodan, Fentanyl, Dilaudid, and Demerol. Narcotic analgesics are the only drugs that routinely constrict a person’s pupils. Narcotic analgesics are highly addictive.

6. Inhalants and GA DUI Charges

Named for their primary method of ingestion, inhalants are breathable chemicals, including volatile solvents, propellant gases or aerosols, and some anesthetic gases. This group includes glue, gasoline, paint thinner, hair spray, insecticides, nitrous oxide (“laughing gas”), amyl nitrite, and ether. Some solvents, like aerosols and anesthetic gases, are extremely fast-acting, short-duration substances, while others, including volatile solvents, may produce effects for several hours.

7. Cannabis and GA DUI Charges

Cannabis is the scientific name for marijuana. The active ingredient in cannabis is delta-9 tetrahydrocannabinol or THC. This category includes cannabinoids and synthetics like dronabinol.\

Georgia DUI Marijuana Charges

Blood test results in Georgia DUI marijuana cases typically are reported as: __ ng/mL of 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid.  11-nor-9-Carboxy-THC, also known as 11-nor-9-carboxy-delta-9-tetrahydrocannabinol, 11-COOH-THC, THC-COOH, and THC-11-oic acid, is the main secondary metabolite of THC which is formed in the body after Cannabis is consumed.

THC binds to cannabinoid receptors and interferes with important endogenous cannabinoid neurotransmitter systems. Receptor distribution correlates with brain areas involved in physiological, psychomotor and cognitive effects. Correspondingly, THC produces alterations in motor behavior, perception, cognition, memory, learning, endocrine function, food intake, and regulation of body temperature.

THC is primarily metabolized to 11-hydroxy-THC which has equipotent psychoactivity. The 11-hydroxy-THC is then rapidly metabolized to the 11-nor-9-carboxy-THC (THC-COOH) which is not psychoactive.

The National Highway Traffic Safety Administration (NHTSA) has recognized that the metabolite of THC in marijuana that is measured in Georgia DUI blood tests is not psychoactive, and if the metabolite is not psychoactive, it does not impair driving ability.

According to NHTSA:

It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. THC concentrations typically peak during the act of smoking, while peak 11-OH THC concentrations occur approximately 9-23 minutes after the start of smoking. Concentrations of both analytes decline rapidly and are often < 5 ng/mL at 3 hours. Significant THC concentrations (7 to 18 ng/mL) are noted following even a single puff or hit of a marijuana cigarette. Peak plasma THC concentrations ranged from 46-188 ng/mL in 6 subjects after they smoked 8.8 mg THC over 10 minutes. Chronic users can have mean plasma levels of THC-COOH of 45 ng/mL, 12 hours after use; corresponding THC levels are, however, less than 1 ng/mL. Following oral administration, THC concentrations peak at 1-3 hours and are lower than after smoking. Dronabinol and THC-COOH are present in equal concentrations in plasma and concentrations peak at approximately 2-4 hours after dosing.

Suggested articles regarding DUI marijuana include:

Cannabis findings in drivers suspected of driving under the influence of drugs in Finland from 2006 to 2008. Tom Blencowe, Anna Pehrsson, Sirpa Mykkänen,Teemu Gunnar, Pirjo Lillsunde.Alcohol and Drug Analytics Unit, National Institute for Health and Welfare, P.O. Box 30, FI-00271 Helsinki, Finland. Received 18 May 2011; received in revised form 3 October 2011; accepted 4 October 2011. published online 24 October 2011.

The authors examined driving under the influence of drugs (DUID) cases which were found to be positive in whole blood for cannabis in Finland from 2006 to 2008. Factors studied were the number of cases positive for any combination of Δ⁹-tetrahydrocannabinol (THC) and the metabolites 11-hydroxy-Δ⁹-tetrahydrocannabinol (THC-OH) and 11-nor-9-carboxy-Δ⁹-tetrahydrocannabinol (THC-COOH). Concurrent use of amphetamines, benzodiazepines and/or alcohol was also recorded, as well as the drivers’ age and gender. Altogether 2957 cannabis positive cases were retrieved from the database of the Alcohol and Drug Analytics Unit, National Institute for Health and Welfare. Drug findings were examined in relation to the zero-tolerance policy operated towards DUID in Finland. The number of cannabis positive cases in each year was approximately 1000 and the main demographic of cases was males aged 20–30years. In the majority of cases (51.6%) the inactive metabolite THC-COOH was the only indication of cannabis use, however, associated use of amphetamines (58.8% of all cases) and/or benzodiazepines (63.9%) in cannabis positive drivers was very common. Detections for amphetamines and/or benzodiazepines were especially common in drivers with THC-COOH only (92.8% of these cases). Combined use of alcohol (25.7%) was also prevalent. Suspect DUID cases generally arise from suspicion on behalf of the police and the zero-tolerance policy offers an expedient means to deal with the challenges presented in DUID, particularly in view of the high incidence of multiple drug use – the legislation is not unduly punitive when enforced in this manner.

Georgia DUI Drugs: Cocaine

As we have discussed before, driving under the influence of drugs can be the basis for a DUI charge. Cocaine, unlike some other drugs, can be the basis for a DUI – Per Se charge. That means that the State can allege a violation of Georgia DUI law through simply have cocaine in your blood, urine, or other bodily substance.  Often times, I still see DUI drugs cases being prosecuted with DUI – Per Se charges when they could be.  DUI Defense Lawyers need to be aware of this oversight, and take advantage of it.  If you have a DUI – Less Safe charge only and the blood or urine test shows the presence of cocaine or any other drug, you have been presented with an opportunity.  The State must show impaired driving ability as a result of the charge they have elected to proceed upon.

The presence of the cocaine metabolite, Benzoylecgonine, in and of itself is insufficient to establish impaired driving ability for the purposes of a DUI Drugs charge in Georgia. Benzoylecgonine, a cocaine metabolite, does not indicate impairment – driving or otherwise.  Benzoylecgonine metabolites can also be produced as a result of the use of some herbal teas.  If you have been charged with DUI drugs in Georgia, contact a qualified Georgia DUI defense lawyer to discuss your case.

Was it an illegal stop that led to a Georgia DUI charge? In this post, which I will try to update on an ongoing basis, I will provide recent Georgia DUI cases (or Georgia criminal cases more generally) addressing the sufficiency of evidence to a stop a vehicle. It is important to recognize that if a stop is found to be illegal, all evidence gained by the police thereafter will be suppressed. That means field sobriety tests, portable breath tests, and state-administered chemical tests performed following a stop that is found to be illegal will not be admissible in the trial of a DUI case.

Christian v. State

What a horrible case to begin this post with. Christian is epitome of Georgia DUI cases that literally bend over backwards to bring legitimacy to DUI cases that are of very questionable validity.

[T]he record reflects that at 8:26 a.m. on July 27, 2010, a law-enforcement officer with the Whitfield County Sheriff’s Office observed Christian’s pickup truck “gripping” the pavement while making a distinct scratching sound. The officer also noticed that the truck bore a Tennessee license plate, which, in light of the erratic driving, further raised his suspicions about the vehicle being in this particular subdivision that early in the morning. Accordingly, the officer relayed the tag information to dispatch and was informed that the tag returned as “not on file.” The officer then stopped the truck to investigate further.

One of the questions that I’m commonly asked is where it is you can be charged for DUI in Georgia, that is can you be charged with a DUI when you’re on your own private property. The answer to that is yes you can be charged with a DUI despite the fact that you’re on private property. In fact, if you’re on an island in the middle of the lake you were operating a motor vehicle here in the State of George, within the territorial confines of the State of Georgia, you can be charged with a DUI. That does not mean you will be convicted of a DUI, but yes you can be charged. The one caveat that I would point out, in an issue that needs to be litigated, is that for people that are charged in Federal Court under the assimilated crimes act, a challenge needs to be raised as to whether or not the Georgia rules are read, and Georgia DUI statute, that can be prosecuted that’s on property that is within the exclusive jurisdiction of the United States. That’s one caveat that I want to point out to you.

Another question that people commonly asked me is do I have to actually be driving a motor vehicle at the time that an officer charges me with DUI? Or initiates an investigation for DUI? The answer for that is no, you do not need to actually be driving, however they do need to establish that in fact you were driving while you were in a condition of being impaired or above the legal limit. Obviously, you may have just recently had driven or that person could look at certain circumstances involved in the case and say that you had recently driven a motor vehicle. And that might be a basis to substantiated DUI charge and possibly a conviction. That’s through what’s called circumstantial evidence, which is just inferences that a judge or juror might draw from for the particular facts of your case. So, that will be decided on a case by case basis whether or not the State can prove beyond a reasonable doubt that you drove while you were in a condition of being impaired by alcohol or drugs, or in a condition of having alcohol concentration greater than o.o8 grams.

With regard to DUI cases involving serious injuries or fatalities, O.C.G.A. § 40-5-55(a) imposes an additional requirement upon law enforcement personnel that blood, breath, or urine tests be performed as soon as possible.

O.C.G.A. § 40-5-55(a) requires that the state-administered chemical tests performed upon a DUI suspect “shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities.” This Court has interpreted this requirement of O.C.G.A. § 40-5-55(a) to mean that the state-administered chemical must be performed “as soon as practicable under the circumstances.” Seith v. State, 225 Ga. App. 684, 686, 484 S.E.2d 690, 693 (1997) (emphasis added).

In order to develop this issue, be sure develop a record as to:

• the timeline of arrival, arrest, reading of implied consent, and arrival at the testing facility,
• the number of officers on the scene,
• the tasks being performed by other officers, and
• other, closer facilities at which testing could be performed.

There is remarkably little case law on this issue, and the issue is of real importance in serious injury by vehicle or vehicular homicide cases. In these cases, the state will frequently attempt to rely upon retrograde extrapolation in an attempt to establish the level of intoxicants in a suspect at the time of driving. Performing the test sooner in time alleviates reliance of retrograde extrapolation efforts that is fraught with accuracy problems.

Almost everyone that talks to me about my work asks this question: “If I am stopped for a DUI, should I refuse the tests?”

First, if there is a remote chance that you might be close to the legal limit or if you feel in any affected by alcohol (or a drug), don’t drive. This sort of question contemplates that you are going to engage in risky behavior that we don’t want to encourage. If you’re reading this, you probably know me, and if you know me, then you probably recognize that I’d come get you (or call an Uber for you) before I’d encourage you to put yourself in a situation where you would have to make a decision about submitting or not submitting to field sobriety tests. When in doubt, don’t drive.

Lawyers typically advise people to refuse tests in DUI investigations because, whether tests would be favorable to the client or not, refusing the tests in a DUI investigation eliminates evidence. A lack of evidence is one basis from which the judge will tell the jury that they can find reasonable doubt. I believe that the real reason most lawyers advise this course of action is that most refusal cases are reduced by prosecutors in advance of trial, and that is certainly reasonable advice in light of that experience. However, what about the cases that are not reduced prior to trial?

Well, it is certainly not a given that a DUI case with a refusal of field sobriety tests and the blood, breath, or urine test is a winner. Despite the reservations of prosecutors to these cases, what most lawyers that have actually tried these cases recognize is that jurors are generally unwilling to give clients the benefit of the doubt (the presumption of innocence in combination with the burden of proof beyond a reasonable doubt) when the defendant has been uncooperative with the police. It requires lawyers to do a very good job helping jurors to understand the State’s burden of proof, and that is a very difficult thing to do.

One common question I receive is “when will we be able to review evidence from my DUI arrest?” For many of my clients that have been charged with a DUI, the one thing they want to know is what will happen in their case, which is impossible to answer prior to reviewing evidence.

In order to evaluate the strengths and weaknesses of a DUI case, I must first review all of the evidence available. This may include reviewing a video of the arrest, the incident report, blood tests, breath tests and any other evidence that may have been gathered or reported. Without reviewing this information, a DUI defense attorney cannot, and should not, speculate as to what will happen in court.

So, how long will it take to get evidence from your DUI and review it? In nearly every case we handle, this process can take several months. It involves an open records request to the relevant arresting agency and a request to the Georgia Bureau of Investigations. The process also involved the production of the video of the arrest, which can also take considerable time to acquire.

The best case scenario for us as we work together is to get started on your case as soon as possible. Though it may take months of work to obtain and evaluate all of the evidence in your case, we can begin creating a defense strategy within a matter of weeks.

If you are facing a DUI charge, I know that you have many questions and want to resolve it as soon as possible. Just know that there will be a period of time in which you will be waiting for your attorney to gather and review the evidence in your case. However, that doesn’t mean there is nothing you can do to prepare for court during this time.

DO NOT EVER BE CONCERNED ABOUT AN OFFICER’S TESTIMONY THAT A PERSON HAS BLOODSHOT OR WATERY EYES IN A DUI CASE.

Most of us know from common experience that bloodshot and watery eyes can be caused by a number of different things. Allergies, smoking, fatigue, etc. are all things that can cause someone to have bloodshot and watery eyes. During a DUI trial, however, we frequently hear officers testify that bloodshot and watery eyes are indications of possible impairment. It is complete nonsense. The National Highway Traffic Safety Administration has recognized how silly this purported correlation is:

Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors.

Bail or bond in Georgia DUI cases is set in accordance with O.C.G.A. §§ 17-6-1 and 17-6-2.  All defendants in custody must be transported and presented to the court for their initial appearance within the time requirements of O.C.G.A. § 17-4-26 and § 17-4-62 for further consideration of bail.

Bond in a Georgia DUI case may be posted by:

(1) Cash by a deposit with the sheriff of an amount equal to the required cash bail; or

(2) Property by real estate located within the State of Georgia with unencumbered equity, not exempted, owned by the accused or surety, valued at double the amount of bail set in the bond; or

(3) Personal recognizance of the defendant in the discretion of the court;

(4) Professional by a professional bail bondsman authorized by the sheriff and in compliance with the rules and regulations for execution of a surety bail bond.

Bond in a DUI case may be conditioned upon such other specified and reasonable conditions as the court may consider just and proper. The court may restrict the type of security permitted for the bond although the sheriff shall determine what sureties are acceptable when surety bond is permitted.

Almost everyone that talks to me about my work asks this question: “If I am stopped for a DUI, should I refuse the tests?”

First, if there is a remote chance that you might be close to the legal limit or if you feel in any affected by alcohol (or a drug), don’t drive. This sort of question contemplates that you are going to engage in risky behavior that we don’t want to encourage. If you’re reading this, you probably know me, and if you know me, then you probably recognize that I’d come get you (or call an Uber for you) before I’d encourage you to put yourself in a situation where you would have to make a decision about submitting or not submitting to field sobriety tests. When in doubt, don’t drive.

Lawyers typically advise people to refuse tests in DUI investigations because, whether tests would be favorable to the client or not, refusing the tests in a DUI investigation eliminates evidence. A lack of evidence is one basis from which the judge will tell the jury that they can find reasonable doubt. I believe that the real reason most lawyers advise this course of action is that most refusal cases are reduced by prosecutors in advance of trial, and that is certainly reasonable advice in light of that experience. However, what about the cases that are not reduced prior to trial?

Well, it is certainly not a given that a DUI case with a refusal of field sobriety tests and the blood, breath, or urine test is a winner. Despite the reservations of prosecutors to these cases, what most lawyers that have actually tried these cases recognize is that jurors are generally unwilling to give clients the benefit of the doubt (the presumption of innocence in combination with the burden of proof beyond a reasonable doubt) when the defendant has been uncooperative with the police. It requires lawyers to do a very good job helping jurors to understand the State’s burden of proof, and that is a very difficult thing to do.

One common question I receive is “when will we be able to review evidence from my DUI arrest?” For many of my clients that have been charged with a DUI, the one thing they want to know is what will happen in their case, which is impossible to answer prior to reviewing evidence.

In order to evaluate the strengths and weaknesses of a DUI case, I must first review all of the evidence available. This may include reviewing a video of the arrest, the incident report, blood tests, breath tests and any other evidence that may have been gathered or reported. Without reviewing this information, a DUI defense attorney cannot, and should not, speculate as to what will happen in court.

So, how long will it take to get evidence from your DUI and review it? In nearly every case we handle, this process can take several months. It involves an open records request to the relevant arresting agency and a request to the Georgia Bureau of Investigations. The process also involved the production of the video of the arrest, which can also take considerable time to acquire.

The best case scenario for us as we work together is to get started on your case as soon as possible. Though it may take months of work to obtain and evaluate all of the evidence in your case, we can begin creating a defense strategy within a matter of weeks.

If you are facing a DUI charge, I know that you have many questions and want to resolve it as soon as possible. Just know that there will be a period of time in which you will be waiting for your attorney to gather and review the evidence in your case. However, that doesn’t mean there is nothing you can do to prepare for court during this time.