GEORGIA DUI LAWYER
- Understand the legal process and how potential outcomes may impact your employment and your driver’s license,
- Understand possible outcomes and the procedure that your case will follow,
- Understand possible legal challenges to the admissibility of evidence in your DUI case,
- Understand whether you should proceed to a trial or accept a plea offer, and
- Understand how your DUI will be defended if the case proceeds to a trial.
A DUI charge and the possibility of a DUI conviction can be devastating for most people. If you are looking for a DUI lawyer with a proven record of success that will care about you and your case, we may be able to help you, but you have to take a simple first step: call us. Do not let the uncertainty lead you to procrastinating. We can deal with this problem and help you through it, but we need for you to take the first step. Most of the stress and anxiety associated with both a DUI charge and the possibility of a conviction arise from the uncertainty of the process and the potential penalties (court-imposed penalties and secondary penalties such as the loss of employment). Our DUI lawyers will help you understand the process and will relieve must of the worry associated with the unknowns caused by your DUI arrest.
You will not find a more qualified DUI attorney in Georgia.
Ben Sessions is 1 of 4 DUI attorneys in Georgia to attain Board Certification through the National College for DUI Defense which is the only organization sanction by the American Bar Association to issued the Board Certification status. Ben has successfully defended DUI, serious injury by vehicle, and vehicle homicide cases throughout Georgia, and he has successfully litigated complex DUI-related issues before the Georgia Supreme Court.
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Do you have an arraignment upcoming for your DUI case?
The first court date in your DUI case will almost certainly be an arraignment. Do not be anxious about the arraignment. It is not something that you should stress over. If you are not represented by an attorney on your arraignment date, enter a “not guilty” plea in order to give yourself time to hire an attorney. You should not enter a guilty plea without having an attorney advise you on the consequences of the plea. The purpose of the arraignment is to inform the person accused of a DUI (or any criminal offense) with what charges they face. The requirement of an arraignment is established by statute:
(a) Upon the arraignment of a person accused of committing a crime, the indictment or accusation shall be read to him and he shall be required to answer whether he is guilty or not guilty of the offense charged, which answer or plea shall be made orally by the accused person or his counsel. O.C.G.A. § 17-7-93.
WHAT ARE THE POSSIBLE PENALTIES FOR A DUI CONVICTION IN GEORGIA?
The exact penalties for DUI depend on the number of prior convictions, if any, the driver has, as well as any other relevant circumstances in the case. Generally, state law allows for the following DUI punishments upon conviction.
- First offense: misdemeanor; penalties may include jail time between 10 days and 12 months, fines between $300 to $1,000, community service, and alcohol counseling.
- Second offense: misdemeanor; penalties may include jail time between 90 days and 12 months, fines between $600 and $1,000, at least 30 days of community service, alcohol counseling, and 12 months probation.
- Third offense: high and aggravated misdemeanor; mandatory minimum jail sentence between 120 days and 12 months; other penalties may include fines between $1,000 and $5,000, at least 30 days of community service, alcohol counseling, and 12 months probation.
What types of evidence does your DUI lawyer evaluate in a DUI case?
Every DUI case in our office begins with an analysis of the evidence obtained by law enforcement on the side of the road. This begins with trying to determine whether there was a reason for the stop. Next, we look at how our client actually stopped their vehicle. Some people refer to this as the stopping sequence. One of the things that we try to determine from the beginning is who the actual stopping officer was. Sometimes the stopping officer is different from the officer that actually arrested the defendant, and we want to first look for inconsistencies in what the officers allege that our client did while driving. Reasons for the initiation of a stop that turns into a DUI investigation can vary widely from case-to-case:
- Is the person alleged to have failed to maintain their lane?
- Did the driver fail to have their headlights properly on?
- Was the driver speeding?
- Was the driver driving below the minimum speed limit?
- Was the driver involved in a car accident?
Whatever that the basis for the stop, we want to know and we want to know whether or not it correlates with what is presented on the video. A critical consideration is whether there is any basis to correlate the alleged driving violation to impairment by alcohol or drugs – your DUI lawyer must know the arresting officer’s training and the National Highway Traffic Safety Administration’s validation studies.
Frequently Asked Questions & Important DUI Issues That You Should Consider
- What is a DUI less safe charge?
- When must Miranda warnings be given in a DUI case?
- Think strategically about the order and type of pre-trial motions argued in your DUI case
- Why do most lawyers encourage people to refuse to submit to blood, breath, or urine tests?
- What happens when an officer provides misleading information about the implied consent notice in a Georgia DUI case?
- If you have a chance to have a preliminary hearing in your DUI case, take advantage of the opportunity.
- How do I decide whether to take my DUI case to trial?
- How do I choose a DUI lawyer when every lawyer seems to claim that they are “the best” or an “expert in DUI defense”?
- Are DUI field sobriety tests a “search” for the purposes of the 4th Amendment in Georgia?
- Did the police obtain a search warrant for your blood in your DUI case?
Are you worried that you may have missed your court date in Atlanta?
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Have you been charged with driving under the influence of drugs?
If you have been charged with DUI drugs, it is important to recognize that a charge of driving under the influence of drugs presents different challenges from a DUI alcohol case. The tactics that your lawyer employs in your DUI drugs case is different from a DUI alcohol, and if your attorney is knowledgable, it is likely that you many of the tests performed upon you maybe successfully undermined as unreliable or unverified.
On this page, we provide a lot of information about Georgia DUI drugs charge and the defense of those charges, and we also have a page specifically dedicated to DUI drugs cases.
How do we effectively defend DUI cases in which our clients did all of the tests?
Yes, we have a track record amongst judges, prosecutors, and other lawyers of defending exceptionally difficult cases, including those in which our client submitted to all DUI field sobriety tests and the blood or breath test after arrest.
It is essential that evaluate and challenge the admissibility of field sobriety test evidence and blood, breath, or urine test in your case.
Before we begin to try to make a decision about how your field sobriety test evidence or your blood or breath test result evidence should be challenged at trial before a judge or jury, we need to challenge the admissibility of this evidence. If the evidence is not going to be admissible in your DUI trial, then we do not need to worry about it should be explained to a judge or a jury.
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CAN YOU PLEAD UNDER THE FIRST OFFENDER ACT FOR A GEORGIA DUI CHARGE?
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 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 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.
Do not make this huge mistake in the handling of the administrative license suspension part of your DUI case.
One thing that I see continually in DUI cases, that absolutely is preventable that’s absolutely ridiculous that any lawyer would do, but that people obviously are continuously doing this is they’re making agreements at the administrative license suspension hearing, for their clients to plead guilty in a breath test case. There is absolutely no reason to do that. All that it takes is a little bit of communication between the lawyer and the client so the client understands that this is a suspension with a limited permit for thirty days and they’re fully eligible for reinstatement license if they completed the DUI school and pay reinstatement fee. They’ll also get credit for time towards the suspension if they’re ultimately convicted of the DUI case. What I see is that the lawyers are now after Elliott, the vast majority of breath tests are being suppressed, excluded from evidence by the trial courts. And then, you’ll have the solicitor the prosecutor who comes back and says, well I still want to try to introduce evidence of the agreement to plead guilty from the ALS. It’s just a whole confusing mess that was completely preventable that never should have happened in the first place. I mean there’s no reason at all to enter into that sort of agreement in a breath test case. The only case in which an agreement is possible, that you should really consider it, is in a refusal case and that’s because you face the possibility of a hard license suspension with no limit of permit whatsoever for twelve months.
If you’re in that situation I can understand that a lawyer advising their clients to negotiate for a guilty plea at the ALS hearing, so that they can save their license. But if you’re in a breath test case particularly of first lifetime DUI breath test case, there’s no reason at all why you should be entering into that agreement. Almost every lawyer who actually defends DUI cases would tell you that if you’ve got a breath test with a really experienced officer, the vast majority of them are just going to withdraw that suspension and that’s because it’s not worth the time, the effort to go through an hour hearing in the administrative license suspension, just to have that sort of suspension imposed, with limited permit for thirty days and then full reinstatement. It’s just generally not worth it. And then second if you do have to actually go through the hearing is usually helpful to you. You’ll learn a lot about the officer, you’ll learn a lot about the case, and you’ll learn it prior to the criminal case even be initiated.
So, if you are a client and you have your lawyer is entered into that sort of agreement or advised you to enter into that sort of agreement, really reconsider whether or not that person is competent handling your case. That is not the sort of agreement that a person who really understands what’s going on in these cases would do. Second if you’re a lawyer who’s doing that, who’s entered into those sort of agreements at the administrative license suspension hearing in breath test cases, don’t do it anymore. Really reconsider your course of action because strategically it just doesn’t make any sense at all. If you have any questions about these issues feel free to call me, my name is Ben Sessions. My phone number is 470-225-7710. Again, 470-225-7710, thank you.
What is the administrative license suspension part of my DUI case?
The administrative license suspension case is probably the least understood part of the DUI case, and it is unquestionably one of the most important parts of the case because it can impact your driver’s license severely. The Georgia Office of State Administrative Hearings is responsible conducting hearings on the administrative license suspension action initiated by the Georgia Department of Driver Services.
How does your DUI lawyer negotiate the best possible result in your case: Things That Your Lawyer Must Do
Most people that have been charged with a DUI want to avoid a jury trial. It’s not always possible to avoid a trial – some cases just cannot be worked out amicably. However, we need to do our very best to capitalize upon negotiation opportunities when they arise. Frequently, in DUI cases, negotiations take place in the presence of the arresting officer, so your lawyer – not you, needs to be prepared with how to negotiate cases with the arresting officer:
Did you know that there are 2 different types of breath tests – preliminary breath tests and state-administered breath tests – typically used in Georgia DUI investigations?
There are 2 different types of breath tests – preliminary breath tests and state-administered breath tests – typically used in Georgia DUI investigations.
PRELIMINARY BREATH TESTS
- Term “preliminary breath test” (PBT), sometimes called “alcohol screening device” (ASD) or “passive alcohol sensor” (PAS), covers a variety of different instruments increasingly being used by police officers in the field to obtain initial indications of blood-alcohol levels.
- Some of these devices are used primarily to detect the presence of alcohol in the subject, or to roughly determine a “pass” or “fail” level (or, in some instances, an intermediary “warn” level). If the instrument indicates that alcohol is present in the subject, or it reflects a possibly high blood-alcohol level by using reading “fail,” the officer can use this information in deciding whether to detain the individual for further field sobriety tests or even to arrest him for more accurate blood, breath, or urine testing. Other PBTs, however, indicate specific levels blood-alcohol concentration.
- Two types of PBTs, both designed to measure alcohol on the breath: fuel cell devices and Taguchi gas sensor
- The fuel cell device measures ethanol by electrochemically oxidizing it, or “burning it up,” in a fuel cell. This oxidation generates a small amount of electrical current, which is then measured over a specific period of time. The more ethanol there is in the breath, the greater the oxidation and the more current is generated, resulting in a higher blood-alcohol reading.
- The primary problem with fuel cell devices is their lack of specificity: The devices will detect a large number of chemical compounds, indiscriminately “reading” them as ethanol. Jones &Goldberg, “Evaluation of Breath Alcohol Instruments I: In Vitro Experiments with Alcolmeter Pocket Model,” researchers found that an “Alcolmeter Pocket Model” reacted positively to ethanol__ as well as to acetaldehyde, methanol, isopropanol, and n-propranolol.
- fuel cell PBTs are subject to a number of additional flaws. As with any breath-testing device, the possibility of “mouth alcohol” always exist__ and requires an observation period of 15 to 20 minutes to ensure that there has been no belching, burping, or regurgitation.
- Fuel cell PBTs are also subject to a buildup of oxide film, or “poisoning,” on the electrode, causing false readings.
- Very sensitive to operating temperature. Counsel should always determine whether the officer checked (and recorded) the device’s operating temperature at the time of the test__ or if the device even has a temperature gauge.
- The usage logs (not to mention the calibration/maintenance records) of the PBT used on the client should be obtained in the course of discovery, and the time of any previous test determined. If the PBT was used with another suspect a few minutes before (as may be common at a sobriety checkpoint), there is a very real possibility that the client’s reading has been contaminated. The fuel cell device requires time for the reaction products are still present, they will be oxidized in the client’s test, creating current flow that will increase the blood-alcohol reading.
- The Alcohol Sensor III – Researchers concluded that the device, utilizing an electrochemical fuel cell, was definitely not sufficiently accurate for use in evidentiary testing and, in fact, should be used with caution as a preliminary testing device.
- Taguchi gas sensors are small porous stannic oxide semiconductor elements. Alcohol in the breath is attracted to the sensor, increasing its electrical conductivity; the more alcohol, the more electricity flowing and the higher the reading.
- Two types of ASDs using Taguchi sensors: active and passive. The active devices involve capturing a breath sample from the suspect with the use of a mouthpiece; passive units do not.
- Both types have the same problem with specificity as the fuel cell devices. Specifically, Taguchi units will detect (and register as ethanol) methanol, acetic acid, ethylene glycol, paraldehyde, acetaldehyde, isopropanol, and other compounds. A second problem common to both active and passive Taguchi devices is that sensitivity varies according to the temperature in the environment and in the unit. In addition to these problems, passive devices will register alcohol in the air, such as from the breath of passenger in the suspect’s car. The cumulative effect of all these problems in the passive device is reflected in a scientific study in which field trials showed that only one-fourth of all subjects who tested positive on the devices had, in fact, blood-alcohol concentrations of .10 percent or higher; another one-fourth had levels below .05percent.
- Life-Loc PBA 3000, typical of the passive Taguchi sensor, is built into the head of a modified police flashlight. The flashlight is held approximately five to seven-and-a-half inches from the subject’s mouth and an electronically controlled pump draws in a breath sample. An ultrasonic device then corrects the reading for the distance from the sensor to the subject.The sensors can be set so that the messages are triggered by given BACs, for example, “pass” can be set from .00 to .29, “warning” from .03 to .09, and “fail” for any reading higher than .10.
- Inherent problems. First, it may be reading vapors from sources other than the subject’s breath. Second, the device is only sampling exhaled breath, and at a distance; any kind of accuracy requires that the breath consist of alveolar__ that is, deep lung air.
- Actual sobriety checkpoint in Washington, D.C. The results: 20 percent of those detained after using the IIHS sensor subsequently proved to have levels below the legal limit (below .10 percent), while 41 percent of those detained with the Honda units proved to have unacceptably low levels.
- That state is apparently making plans to use handheld breath-testing devices as evidential breath test instruments. In other words, steps have been taken to phase out current PBT devices as well as the evidential machines currently found in police stations and replace them with a single new handheld unit, that accomplishes the functions of both.
- California Department of Justice to the California Association of Toxicologists Newsletter and printed in its February 1999 edition:
The Alcotest 7410 Plus hand-held breath analyzer with “Smart Cal” and PC software, is the result.
This California version of the Draeger 7410, the “7410 Plus,” varies from the standard model primarily in using a special software, “Smart Cal.” With the capacity to give the tests in the field, of course, retrograde extrapolation will cease to be a significant problem.
First, it appears that the new device is not currently designed to incorporate a mouth alcohol detector. Second, there is also, apparently, only a very primitive Radio Frequency Interference (RFI) detector planned for the device.
[A] The Alco-Sensor
- most commonly used preliminary breath test (PBT) instruments appear to be Intoximeter’s Alco-Sensor model IV (by the makers of the Inbox EC/IR® II.)
- The accuracy of the Alco-Sensor has been tested in the laboratory. The device, utilizing an electrochemical fuel cell, was definitely not sufficiently accurate for use in evidentiary testing and, in fact, should be used with caution as a preliminary testing device.
- It uses a fuel cell, consisting of five layers of material compressed into a wafer and soaked with an electrolyte, to analyze alcohol in the breath. An electrical piston pump within the device draws one cubic centimeter of breath into the fuel cell for analysis. The captured breath vapor is exposed to the active surface of the fuel cell and, through oxidation, any alcohol releases electrons that create an electronic flow along a conductor and out of the fuel cell. The device can be used every 15 seconds if no alcohol is encountered; a two-minute wait is required if there is a positive reading.
- According to the Intoximeters website,
Possible Problem Conditions for the Alco-Sensor
- Some possible sources of error noted by the manufacturer include: (1) The manual warns that “a recent drink of an alcoholic beverage or regurgitation could introduce ‘mouth alcohol’ to the breath, causing an exaggerated reading. A 15-minute waiting period prior to testing will insure the elimination of ‘mouth alcohol.’” (2) Any cigarette smoke blown into the device “will permanently damage the fuel cell.” (3) “Sufficient time after each test must be allowed for all traces of alcohol on the cell surface to be eliminated…. Even when exposed to breath samples with high alcohol levels, a cell should clear within 2 minutes.” (4) New mouthpieces must be inserted with each new test, or alcohol from the previous user can elevate the reading. (5) Monthly calibration checks are recommended.
[B] Defense Use of Favorable PBT Evidence
In most jurisdictions, evidence of preliminary breath test results are not admissible in trial.
Consider, however, the reasoning in an Arkansas case, Patrick v. State. The appellate court accepted the defendant’s reasoning that since the PBT results were considered sufficiently reliable to establish probable cause to arrest him, they are sufficiently reliable to be admitted as exculpatory evidence.
This is consistent with the decision in Rock v. Arkansas, where the U.S. Supreme Court held that evidence of hypnosis offered by the defendant was admissible, even though it would not be admissible if offered by the prosecution. The Court reasoned that prohibiting such evidence effectively precluded the defendant from presenting a defense. In order words, an accused’s constitutional right to present evidence in his defense rises to a higher level than the prosecution’s “right” to present evidence against him, and, thus, the standards for admissibility should reflect this.
Counsel should consider filing a motion in limine to obtain an advance ruling as to the admissibility of the intended evidence.