Experienced Georgia DUI Lawyer

If you are evaluating DUI lawyers, there are several things that you should consider: (1) is the DUI lawyer Board Certified in DUI Defense, (2) does the lawyer regularly engage in DUI litigation (motions and trials), and (3) has the DUI lawyer tried more than 50 DUI jury trials? You do not want to be a lawyer’s “learning opportunity”. You will not be benefitted by a lawyer that does not actually challenge the State’s evidence regularly.The most important decision that you can make following a DUI arrest is who you will retain to represent you in your case. An experienced, qualified, and aggressive DUI lawyer will help you:

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 especially if it’s your first offense 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 procrastinate. Our law firm can deal with this problem and help you through it, but we need you to take the first step. Most of the stress and anxiety associated with both a DUI charge and the possibility of a conviction arising from the uncertainty of the process and the potential penalties (court-imposed penalties and secondary penalties such as the loss of employment). Our DUI defense attorney will help you understand the process and will relieve most of the worry associated with the unknowns caused by your DUI arrest.

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You Will Not Find a More Qualified DUI Attorney in Georgia.

Ben Sessions is 1 of 4 DUI attorneys in state of Georgia to attain Board Certification through the National College for DUI Defense which is the only organization sanction by the American Bar Association to issue the Board Certification status. Ben has years of experience 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. Contact our law office today for a free consultation. The Sessions law firm specializes in Georgia DUI Law. Ben Sessions’ primary offices are in Macon, GA, Atlanta, Ga, and Columbus, GA. However, clients are frequently defended in other counties such as Gwinnett County, Dekalb County, Cobb County, and other cities such as Marietta, Roswell, Sandy Springs, Peachtree, Alpharetta, Decatur, and so many more.

ARE ALL “DUI LAWYERS” CREATED EQUAL?

There is a common misconception among some people that lawyers are merely commodities, and that lawyers don’t really make a positive difference in the outcome of the case. Much to the chagrin of many of my colleagues, I would tend to agree with this proposition in most cases. (I’ll explain what I mean by that just shortly.) However, there is clearly a class of cases in which the lawyer that you select will make a difference: if you absolutely cannot tolerate a DUI conviction, if you have a prior DUI conviction, if you are charged with vehicular homicide based upon a DUI charge, or if you face a serious injury by vehicle charge, the lawyer that you select will make a tremendous difference in the outcome of the case. When I say that a certain class of DUI lawyer will make a difference in the outcome of these categories of cases, I am working from the assumption that there is uncertainty in the resolution of cases, and contrary to what many people say and think – even in cases involving blood or breath tests, cases in “easy” jurisdictions, and in jurisdictions with “no reduction” policies – there is a tremendous amount of uncertainty in the way that these DUI cases are concluded.

Your DUI Lawyer Will Affect the Result in Your Case: Whether That Change Will Be Good or Bad Is Solely Dependent Upon the Lawyer You Choose

Good DUI lawyers earn their reputation (and money) changing (positively affecting) the result in your case. If you believe that our system is one in which every case is resolved by some back room deal, I can affirmatively say that I am not your lawyer. Many of my client’s charge are dismissed or reduced prior to a formal hearing or a trial based upon negotiations, but those negotiations are based upon work, effort, and my willingness to try almost any DUI case in my office. Negotiations are not based upon a slap on the back and a wink and a nod between a defense lawyer and a prosecutor. If a lawyer is willing to tell you that his relationship with a certain prosecutor will help you “get a deal,” wouldn’t one think that same relationship limit might limit his willingness to aggressively pursue a trial and a legal advantage if negotiations fail? What if the prosecutor suggested to such a lawyer that a deal could not be made in your case, but if the lawyer entered a guilty plea to DUI in your case, the lawyer would be helped in another “important” case? The very best DUI lawyers earn their money by defending cases in an honorable manner through the legal process. I have a very good professional relationship with many prosecutors, and many are – in turn – willing to offer favorable resolutions to my clients, but those results have been earned. Those prosecutors know that I am prepared on each and every case, and I am willing to try the DUI case if necessary.

Accepting Uncertainty in Your DUI Case

Once you accept that there is uncertainty in your DUI case and you understand that your DUI lawyer can affect the outcome of your case, you will be in a much better mindset to cope with your pending charge. Understanding that the outcome of the case can change throughout the case (perhaps over months or even years) and even up to the point of a jury verdict, you will gain patience but it will also drive you to engage in steps to mitigate any possible sentence and it will drive you to actively engage in an necessary assistance in the development of a defense to your charge. Patience is necessary, but positive action is also very helpful in many DUI cases.

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.

Bail in Georgia DUI Cases

Bail in DUI cases in Georgia 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.

Bail which may be secured 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) Recognizance 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.

Bail 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.

What Types of Evidence Does Your DUI Lawyer Evaluate in A DUI Case?

Every driving under the influence 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.

Next, we began looking at the officers’ interaction with our client. I’m sorry. From there we began looking at how it is that our client reacted to the blue lights. The actual stop by the officer, while we’re looking at there, is how the client controlled their vehicle. Did the client suddenly slam on the brakes? Did the client properly turn on the turn signal? Did the client stop in a safe location? They stop in a normal, non-impaired manner is what we’re looking for in that sequence. If the client did not do those things, then we are looking for reasons why the client didn’t do it. So, for example, if there was a prolonged period of time that a lapse between the officer initiating the blue lights and the client pulling over, why did the client do that wasn’t because there wasn’t a safe location of the lover because there were some other distraction on the roadway of those are things that we need to be aware of and notice

After our client has stopped their vehicle, we begin observing the officer’s interaction with our client. Here are the things we How does the client speak to the officer? First, is it real? Is a clear and not mumble is a speech of here to be impaired by alcohol or drugs?

Does the client speak coherently with the officer? Are they being responsive to questions? Do the client appear to understand what it is that the officer was asking of him or her

Then we’re looking at generally when an officer approaches our client, they will ask for the production of their license. Other identifying information such as your insurance card. Does the client understand what the officer’s asking for and are they able to logically respond to those questions and produce the items requested by the officer?

After an officer has made initial contact with you, generally they will ask that you exit from the vehicle if they believe that you are possibly under the influence. Lots of alcohol or drugs when you’re exiting from the vehicle, they are looking for whether or not you had difficulty balancing without the assistance of the car or the door and whether or not you stumble or stagger or sway. Once you’ve actually exited the vehicle from the exit of the vehicle, they didn’t observe how it is that you walk to the rear of your car in the front of their patrol car. Generally, that is the location where field sobriety tests are performed and you are videoed during that interaction.

What If We Don’t Have The DUI Arrest Video Prior to the 1st Court Date?

Frequently Asked Questions & Important DUI Issues that You Should Consider

How long will it take for your lawyer to get evidence in your DUI case?

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.

Should you have questions about your DUI and want to know what steps you can take to proactively move toward a favorable outcome in your case, contact or call our office today at (470) 225-7710.

Are You Worried that You May Have Missed Your Court Date in Atlanta?

Follow this image to check the online case management system for Fulton County State Court:

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.

WHY DO MOST LAWYERS ENCOURAGE PEOPLE TO REFUSE TESTS IN A DUI INVESTIGATION?

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.

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.

CAN YOU WIN AN UNDER-21 DUI CASE WITH A BREATH TEST RESULT?

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?

How Do Prior Injuries Impact the Defense of a Georgia DUI Charge?

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.

Are You Trying to Use Numbers to Compare DUI Lawyers?

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.

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 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.

Why You may be Charged for Refusing a State-Administered Test

I regularly consult with and engage in the representation of clients that are confused as to why they are charged with a refusal of state-administered test when they did not explicitly state to the arresting officer that they would not take the requested blood, breath, or urine test. When an officer reads the Implied Consent Notice and requests a blood, breath, or urine test, most people have no clue what their rights are or the implications of their choice. This lack of understanding is a common and rational response. Georgia’s Implied Consent Notice is convoluted and confusing. Furthermore, if the Implied Consent Notice is read in a timely manner, the notice will be read immediately after arrest, and for most people, this is one of the most anxiety-ridden moments of their life. Asking a person to reach a reasoned and voluntary decision under these circumstances is not a reasonable request.

Nonetheless, Georgia DUI law requires each and every person arrested for a DUI to make a decision as to whether they will submit to the requested state-administered test after their arrest. Cases interpreting Georgia’s Implied Consent Notice have consistently held that the failure of a person to provide an answer to the officer’s request for a test of their blood, breath, or urine may be deemed a refusal. If a person arrested for a DUI responds that they simply do not understand what the officer is asking of them, this may be deemed a refusal.

What if a person arrested for DUI states that they will not answer the officer’s request for a blood, breath, or urine test until they speak with their lawyer? Georgia case law interpreting the rights of suspects after the Implied Consent Notice is abysmal on this issue. Georgia courts have repeatedly held that a suspect does not have the right to consult with an attorney prior to deciding whether to “consent” to the state-administered test. Again, if a person states that they cannot make a decision prior to consulting with a lawyer, under existing Georgia DUI law, this may be deemed a refusal.

In a later post, I will address the circumstances under which a person may “rescind” their prior refusal or failure to give a clear answer as to whether they will submit to the state-administered test requested by the arresting officer.

Georgia DUI License Suspension

Most people charged with a DUI in Georgia receive a DDS Form 1205. The Form 1205 serves as a temporary driver’s license when signed by the officer. The temporary permit is valid for 30 days after the date of arrest – unless a request for hearing is filed upon the suspension.

A temporary permit is not issued by the arresting officer if a DUI suspect does not possess a valid license at the time of arrest.

A DDS Form 1205 is issued if a suspect is arrested for violating Georgia’s DUI law (O.C.G.A. §40-6-391), the arresting officer requests a state-administered chemical test, and:
– the driver refused implied consent, OR
– chemical tests indicated a BAC of .08 grams or more for a driver 21 years of age or older, OR
– chemical tests indicated a BAC of .02 grams or more for a driver under 21 years of age, OR
– chemical tests indicated a BAC of .04 grams or more for a driver operating a commercial motor
vehicle.

See also our informational page on Georgia DUI driver’s license administrative licenses.

How Do I Reinstate My License After a DUI Conviction?

First Conviction (within 5 years) Plea of nolo contendere – Will not avoid the license suspension. Suspension – Yes; 180 day period beginning on effective date. Limited Driving Permit – Maybe; only if adjudicated in an official accountability court and meet the requirements of O.C.G.A. §40-5-76(a). Reinstatement Requirements: • Submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Risk Reduction Program; • Remit a $210.00 reinstatement fee (or $200.00 if processed by mail).
Second Conviction (Within 5 years) Plea of nolo contendere –Will not avoid the license suspension. Suspension – Yes; 1 year period beginning on effective date. Limited Driving Permit – Maybe; only if adjudicated in an official accountability court and meet the requirements of O.C.G.A. §40-5-76(a). • Submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Risk Reduction Program; • Remit a $210.00 reinstatement fee (or $300.00 if processed by mail).
Third Conviction (Within 5 years) Plea of nolo contendere – =Will not avoid the license suspension. Suspension – Yes; 5 year period beginning on effective date Limited Driving Permit – No. However, the licensee may make application for a probationary license pursuant to O.C.G.A. §40-5-58 after a minimum suspension period of 2 years after the date of conviction of the underlying DUI. Reinstatement Requirements: • Submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Risk Reduction Program; and, • Remit a $210.00 reinstatement fee (or $400.00 if processed by mail).

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.

“Serious Injury” Defined in Georgia DUI Cases

Accidents resulting in serious injuries or death that involve alcohol or drug consumption are among the most intensely prosecuted and litigated cases in criminal law. The reason for the intensity of the prosecution of these offenses is clear and need not be discussed at-length here. Our purpose is simply to inform you of the various elements which must be proved by the state in the serious injury or death case.

A critical element in the serious injury by vehicle case involving an alleged DUI offense (also referred to as DUI – Serious Injury) is the admissibility of the state-administered chemical test. In this article, I will not attempt to address each of the issues which I consider in evaluating the admissibility of the state-administered chemical test in a DUI serious injury case. Instead, this article will simply be the first of a series of posts on this subject.

Why is the admissibility of the state-administered chemical test so important in the defense of the Georgia DUI serious injury case?

The answer to this question is relatively straightforward: without the state-administered chemical test, the prosecution generally has very little evidence of impairment or intoxication in the DUI serious injury case. Because the DUI serious injury case generally involves an accident (generally, a high-impact and traumatic accident), most of clients involved in DUI serious injury cases are not good candidates for balance and coordination tests that are generally relied upon by officers to demonstrate impairment by alcohol or drugs in DUI cases.

One of the first issues that must be addressed in this class of DUI case is whether the injury meets the definition of a serious injury. O.C.G.A. § 40-5-55, Subsection (c) defines a serious injury:

As used in this Code section, the term “traffic accident resulting in serious injuries or fatalities” means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.

Georgia DUI Roadblocks

DUI roadblocks in Georgia and, more generally, roadblocks in Georgia continue to be of questionable validity following the Georgia Supreme Court’s rulings in Brown and Williams. The Charales case affirms this trend against the validity of DUI roadblocks in Georgia.

DUI ROADBLOCKS IN GEORGIA: FACTS OF CHARALES

Following a bench trial, Robert Charales a/k/a Robert Chakales was found guilty of driving under the influence to the extent it was less safe to drive (“DUI less safe”) and driving under the influence with an unlawful alcohol concentration (“DUI per se”). Charales appeals the denial of his subsequent motion for new trial, arguing that the trial court erred by denying his pretrial motion to suppress because (1) the checkpoint at which he was stopped was unlawful, and (2) police failed to timely read him the implied consent notice. Because the State failed to demonstrate that the law enforcement agency’s checkpoint program had an appropriate primary purpose, we reverse.

Charales v. State, No. A14A1040, 2014 WL 5838573, at *1 (Ga. Ct. App. Nov. 12, 2014).

[O]n March 14, 2009, Charales was arrested and charged with DUI less safe and >DUI per se following his inability to properly perform field sobriety tests at a checkpoint implemented by the Atlanta Police Department (“APD”). With Charales’s consent, police administered two Intoxilyzer 5000 tests, which indicated blood alcohol levels of .206 and .215. Charales was charged with DUI per se and DUI less safe. Prior to trial, he filed a motion to suppress, arguing that the checkpoint was unlawful and the police failed to timely read him the implied consent notice, and the trial court denied the motion after an evidentiary hearing. Following a stipulated bench trial, the trial court found Charales guilty on both counts, and it merged the less safe count into the per se count. The trial court denied Charales’s subsequent motion for new trial, and this appeal followed.

Charales v. State, No. A14A1040, 2014 WL 5838573, at *1 (Ga. Ct. App. Nov. 12, 2014).

DUI ROADBLOCKS IN GEORGIA: THE HOLDING OF CHARALES

1. Charales argues that the trial court erred by denying his motion to suppress because the State failed to prove that APD’s checkpoint was lawful. We agree.

“[W]here a defendant challenges his initial stop at a police checkpoint by way of a motion to suppress, the State bears the burden of proving that the seizure was constitutional.” In Brown v. State, the Supreme Court of Georgia reaffirmed the five requirements that the State must show for a checkpoint to be upheld as constitutional as required by the United States Supreme Court in LaFontaine v. State:

(1) the decision to implement the [checkpoint] was made by supervisory personnel rather than the officers in the field; (2) all vehicles were stopped as opposed to random vehicle stops; (3) the delay to motorists was minimal; (4) the [checkpoint] operation was well identified as a police checkpoint; and (5) the “screening” officer’s training and experience was sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

In addition, in City of Indianapolis v. Edmond, the United States Supreme Court “supplemented LaFontaine’s test for evaluating the implementation and operation of the particular checkpoint with a distinct requirement focused on the law enforcement agency’s checkpoint program.”

At a minimum, the State must show that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control—a purpose examined at that programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue.

In this case, pretermitting whether the checkpoint established by the APD met the five LaFontaine requirements, the State has failed to prove that the checkpoint program had an appropriate primary purpose.

Sergeant Zachery Wilson testified at the suppression hearing that he, acting as a field supervisor, called for the checkpoint that evening where Charales was stopped and arrested. According to Sergeant Wilson, the purpose of that particular checkpoint was not crime suppression, but rather to “check for driver’s license[s], seat belts[, headlights,] and safety violations.” There was, however, no testimony nor any written evidence admitted regarding the APD’s checkpoint policy or program as a whole. As the Supreme Court of Georgia recently explained,

a finding that a particular checkpoint has a primary purpose other than ordinary crime control is not enough to satisfy the Edmond requirement. Edmond requires an examination of the policy purpose of the checkpoints, viewed at the programmatic level, to ensure that an agency’s checkpoints are established primarily for a lawful and focused purpose like traffic safety rather than to detect evidence of ordinary criminal wrongdoing.”

Because the State failed to show that the APD’s “‘checkpoint program had an appropriate primary purpose other than ordinary crime control’ when viewed at the programmatic level[,] … we therefore must conclude that the checkpoint at which [Charales] was stopped violated the Fourth Amendment.”¹⁵ Thus, the trial court erred by denying Charales’s motion to suppress.

Charales v. State, No. A14A1040, 2014 WL 5838573, at *1-2 (Ga. Ct. App. Nov. 12, 2014)

The Charales case teaches several valuable lessons for the Georgia DUI defense attorney. DUI cases and, particularly, roadblocks that serve as the basis for DUI charges. It is important to know how to approach a case strategically. Take a look back at the facts of Charales. Charales is not a case that was going to be won on the merits, but the trial lawyer recognized the weakness in the State’s case and properly capitalized upon it.

Do Not Make This Huge Mistake in The Handling of The Administrative License Suspension Part of Your DUI Case.

Transcript:

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.

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 for conducting hearings on the administrative license suspension action initiated by the Georgia Department of Driver Services.

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.

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

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 consists 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,

[t]he instrument utilizes an electrochemical sensor (fuel cell) to quantify alcohol in the provided sample. The fuel cell is a porous disk with a thin layer of platinum black on both faces. The disk is saturated with an electrolyte and mounted in a valve assembly that is designed to draw a fixed volume sample across the surface of the fuel cell. When a subject’s breath sample is drawn across the top surface of the cell, any alcohol that comes in contact with the cell’s surface is broken down chemically. For each molecule of alcohol that is broken down a given number of electrons are freed during the process. The number of electrons generated is in proportion to the amount of alcohol in the sample. By measuring the number of electrons (the resulting electrical signal) a digital BrAC (Breath Alcohol Concentration) is calculated and reported.

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.

Preliminary Breath Test Results in Georgia DUI Cases

Over the past decade or so, the Georgia DUI defense bar has made a concerted effort to inform the public of certain rights that they have during a DUI investigation. Despite this effort, most of the public and some lawyers have a great deal of confusion about what preliminary breath test results may be used for. Holler v. State, 224 Ga. App. 66, 479 S.E.2d 780 (1996), which remains undistinguished by in Georgia, is the case that clarifies the permissible purposes of preliminary breath tests in DUI investigations:

At trial the State in essence argued that, although numerical test results are not admissible at trial, an exception should begranted for the admission of this evidence at a suppression hearing for purposes of establishing probable cause for a DUI arrest. As a general rule, the numerical results of an alco-sensor test are not admissible in evidence, as the results of an alco-sensor test are not used as evidence of the amount of alcohol or drug in a person’s blood. See Keenan v. State, 263 Ga. 569, 571(2), 436 S.E.2d 475; Porche v. State, 217 Ga.App. 325(1), 457 S.E.2d 578; Turrentine v. State, 176 Ga.App. 145, 146(1), 335 S.E.2d 630; see also Ayers v. City of Atlanta, 221 Ga.App. 381, 382(3), 471 S.E.2d 240. Even the characterization of the results of an alco-sensor test as “high” has been held to constitute inadmissible evidence of the degree of a suspect’s intoxication. Sturdy v. State, 192 Ga.App. 71, 383 S.E.2d 632. However, evidence can be admitted, as was allowed in this case, as to whether a suspect tested positive or negative, or passed or failed, an alco-sensor test; this is consistent with the use of an alco-sensor “as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” Turrentine, supra at 146(1); see Sturdy v. State, supra. Evidence also is admissible whether a suspect re- fuses to submit to an alco-sensor test. Keenan, supra at 572(2), 436 S.E.2d 475.

A trial court is vested with wide discretion in determining the admissibility of evidence. Spencer v. State, 260 Ga. 640, 646(8), 398 S.E.2d 179. Admission of evidence is a matter resting largely within the discretion of the trial court; an appellate court will not interfere with a trial court’s ruling as to evidence admissibility absent an abuse of discretion. Gully v. Glover, 190 Ga.App. 238, 241(4), 378 S.E.2d 411; Santone v. State, 187 Ga.App. 789, 793, 371 S.E.2d 428. The State has failed to show an abuse of discretion by the trial court in following the general rule and declining to allow evidence as to the numerical score appellee received on an alco-sensor test to be admitted in evidence at a suppression hearing. See Porche, supra; cf. Mendoza v. State, 196 Ga.App. 627, 629(3), 396 S.E.2d 576. Accordingly, we will not interfere with that ruling. Gully, supra; Santone, supra. Further, as an alco-sensor test is not used as evidence as to the amount of alcohol or drugs in a person’s blood, we decline this opportunity to create a blanket exception which would serve as precedent for making alco-sensor numerical test results admissible (for the limited purpose of establishing probable cause to arrest) at all future suppression hearings. The State’s assertion of error as to this matter is without merit.

GEORGIA DUI BREATH TEST RULES – GBI REGULATIONS

Below are the rules adopted by the Georgia Bureau of Investigation for the issuance of breath testing permits. These rules and others adopted by the GBI provide an opportunity to develop defenses in a Georgia DUI case. However, whether issues exist with regard to the validity of Intoxilyzer 5000 operator’s permit are frequently overlooked by the “casual” DUI practitioner. Wouldn’t you like to know if the breath test operator in your case was properly permitted to perform your breath test?

If you are a lawyer seeking a copy of these rules, please e-mail me and I will provide you with a copy.

Breath-Testing-Rules-Implied-Consent

Why is the Mouth Alcohol Defense Important?

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:

[1] Patrick Harding et al., supra note 2, at 999.

[2] The term “general challenges,” as used here, refers to a defense based simply upon a failure to adhere to established rules and protocol for the administration of a breath test.

[3] Harding and Zettl, supra note 1, at § 7.5.

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:

Harding and Zettl, supra note 1, at § 7.6.

See id. at § 7.2 for a succinct description of almost every breath testing device employed in the United States.

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:

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[1] Harding and Zettl, supra note 1, at § 7.5.