Child Endangerment DUI
Child Endangerment DUI
By Attorney Ben Sessions
Contributer
Ben Sessions has personally tried over 60 cases to a jury, and he has successfully litigated cases before both the Georgia Supreme Court and the Georgia Court of Appeals. We understand that aggressively preparing cases for a jury trial is frequently the best way to a resolve a case. When you meet with us, we’ll help you understand the process and we’ll also relieve a lot of the stress that you may have about the process involved with your case. If you want a lawyer that is willing to fight to the very end for your cause, Ben Sessions is the lawyer for you. Ben has built his reputation among former clients and other lawyers by being willing to stand up for people in the hardest times in their lives. If the obstacles in your case seem too large, if the other side appears too rich, if the other side appears to have too much power, Ben Sessions is the lawyer you need to call.
By Attorney Ben Sessions
Contributer
Updated: Sep 18, 2020, 08:05 am
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If you have been charged with a Georgia DUI and you also had a child in your vehicle that was under the age of 14, you will most likely also face a charge of DUI child endangerment. The critical aspect of child endangerment charge in Georgia is that the child endangerment charge is always accompanied by a traditional DUI charge, which is found in O.C.G.A. § 40-6-391(a)(1)-(6). According to the statute, the child endangerment charge cannot merge with the traditional DUI charge for the purpose of sentencing.
(l) A person who violates this Code section while transporting in a motor vehicle a child under the age of 14 years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or drugs. The offense of endangering a child by driving under the influence of alcohol or drugs shall not be merged with the offense of driving under the influence of alcohol or drugs for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished in accordance with the provisions of subsection (d) of Code Section 16-12-1.
O.C.G.A. § 40-6-391.
WHAT ARE THE PENALTIES FOR CHILD ENDANGERMENT DUI IN GEORGIA?
Some of the possible penalties for a child endangerment DUI charge are below:
(d) A person convicted pursuant to paragraph (1) or (2) of subsection (b) of this Code section shall be punished as follows:
(1) Upon conviction of the first or second offense, the defendant shall be guilty of a misdemeanor and shall be fined not more than $1,000.00 or shall be imprisoned for not more than 12 months, or both fined and imprisoned; and
(2) Upon the conviction of the third or subsequent offense, the defendant shall be guilty of a felony and shall be fined not less than $1,000.00 nor more than $5,000.00 or shall be imprisoned for not less than one year nor more than three years, or both fined and imprisoned.
O.C.G.A. § 16-12-1.
However, one of the primary concerns for people facing a child endangerment charge in Georgia is undoubtedly the potential impact of a child endangerment DUI charge upon their driver’s license. If, for example, you are charged with DUI and child endangerment DUI and you are convicted of both DUI charges, the Department of Driver Services will suspend your driver’s license in the same manner that they would for a driver that was convicted of 2 DUIs within a 5-year period.
CONTACT A CHILD ENDANGERMENT DUI ATTORNEY TODAY
When looking for an DUI lawyer, look no further than criminal defense attorney Ben Sessions at Sessions & Fleischman, LLC. His professional approach to each case gives you the feeling that there’s nothing to worry about. If you’re needing help with this type of criminal allegation, contact us at (470) 225-7710 for a free consultation.
Frequently Asked Questions (FAQs)
30-Day DUI Appeal Letter
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 Do Prior Injuries Impact the Defense of a 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.
Involuntary Intoxication Defense in Georgia DUI Cases
Many prosecutors, Judges, and even defense lawyers do not under the involuntary intoxication defense to Georgia DUI charges. Of course, the facts need to support the defense, but in the right case, involuntary intoxication is a powerful and intuitive defense. Colon v. State, 256 Ga. App. 505, 568 S.E.2d 811 (2002), provides very useful direction on the defense of involuntary intoxication:
5. In his fifth and sixth enumerations, Colon complains of the trial court's charge on involuntary intoxication and its failure to give his Request to Charge No. 9. They are considered together. (a) Regarding the involuntary intoxication charge, Colon's specific objection is to the court's instructing the jury that “[t]he defense of involuntary intoxication is not available to excuse driving under the influence.” This instruction amounted to reversible error. The entire portion of the court's charge relating to involuntary intoxication was that [a] person shall not be found guilty of a crime when at the time of the conduct constituting the crime, the person because of involuntarily [sic] intoxication did not have sufficient mental capacity to distinguish between right and wrong in relation to the criminal act. Involuntary intoxication means intoxication caused by (a) consumption of a substance through excusable ignorance or (b) the coercion, fraud, trick, or contrivance of another person. The defense of involuntary intoxication is not available to excuse driving under the influence. It absolves responsibility only if the intoxication renders the defendant incapable of distinguishing right from wrong. If the inability to distinguish right and wrong is the product of voluntary intoxication, there is no defense. [10][11] While it is true that the jury charge must be considered as a whole when determining its correctness, Roberson v. State, 236 Ga.App. 654, 655(1), 512 S.E.2d 919 (1999), this charge contained the clearly erroneous statement that involuntary intoxication was not available as an affirmative defense to driving under the influence. See Larsen v. State, 253 Ga.App. 196, 198(1), 558 S.E.2d 418 (2002); Flanders v. State, 188 Ga.App. 98, 371 S.E.2d 918 (1988); accord Commonwealth v. Darch, 54 Mass.App.Ct. 713, 767 N.E.2d 1096 (2002). This declarative assertion by the trial judge was straightforward and unambiguous. The modifiers following it are not likely to have erased an erroneous impression from the minds of the jurors. Furthermore, the error was not harmless, as the defendant raised the issue of involuntary intoxication in his testimony when he claimed that someone put an unknown drug in his drink, unbeknownst to him. See Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991). The case at bar illustrates again that instructing juries in the precise language of the Suggested Pattern Jury Instructions serves the goal of judicial economy as well as the goal of providing justice to both sides, the state and the defendant.
DRE Evaluations and Motions to Exclude in DUI Drugs Cases
A critical part of the defense of DUI drugs cases is challenging the admissibility and reliability of DRE Evaluations through a strategic motions practice.
Brief in Support of Motion to Exclude Romberg Evidence
The evidence and testimony addressed in this motion is generically referred to as the “Romberg test” by law enforcement. It is more accurately called the “Modified Romberg Balance Test.” The “Romberg test” at issue, in this case, consists of the following:
- The subject is instructed to stand straight with their feet together and their arms down at their sides;
- The subject is instructed to remain in that position until instructions are completed;
- The subject is instructed that when told to begin, the subject should tilt their head back slightly and close their eyes.
- With their head titled back and eyes closed, the subject is instructed to estimate the passage of 30 seconds.
- The subject is instructed to bring their head forward, open their eyes, and say “Stop” when they believe that 30 seconds has elapsed.
- When the subject opens their eyes, ask them how much time they thought elapsed.
- the effect of alcohol on the eyes and inducing horizontal gaze nystagmus is recognized in The Merck Manual of Diagnosis and Therapy;
- the horizontal gaze nystagmus test has undergone validation studies sanctioned by the National Highway Traffic Safety Administration (Burns & Moskowitz, “Psychophysical Tests for DWI Arrest,” S. Department of Transportation, Rep. No. DOT-HS-802-424 (1977); Schweitz & Snyder, “Field Evaluation of a Behavioral Test Battery for DWI,” U.S. Department of Transportation, Rep. No. DOT-HS-806-475 (1983);
- the horizontal gaze nystagmus test has been employed by law enforcement in all 50 states;
- the relationship of horizontal gaze nystagmus to alcohol consumption was recognized in the premier DUI defense treatise (Erwin, Defense of Drunk Driving Cases (3rd ed. 1985), 8.15A[3]);and
- “The characteristics, theory, and scientific acceptability of HGN testing in relation to DUI cases has been discussed in numerous articles and in numerous judicial opinions. See particularly, State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, appendices A & B 182-184, 149 Ariz. 269, 718 P.2d 171 (1986); State v. Nagel, 30 Ohio App.3d 80, 506 N.E.2d 285 (1986); see also, e.g., Barnes, The Effects of Ethyl Alcohol on Visual Pursuit and Suppression of the Vestibulo-Ocu- lar Reflex, 406 ACTA Otolaryngol Supp., p. 161 (Sweden 1984) (ethyl alcohol disrupted visual pursuit eye movement by increasing number of nystagmic “catch-up saccades”); Goldberg, Effects and After-Effects of Alcohol, Tranquilizers and Fatigue on Ocular Phenom- ena, Alcohol and Road Traffic, p. 123 (1963) (of different types of nystagmus, alcohol gaze nystagmus is the most easily observed); Zyo, Medico-Legal and Psychiatric Studies on the Alcoholic Intoxicated Offender, 30 Japanese J. of Legal Medicine, No. 3 (1976), p. 169 (recommends use of nystagmus test to determine somatic and mental symptoms of alcohol in- toxication, as well as blood alcohol content).”
DRE Evaluations in DUI Drugs Cases
Categories of Drugs that DREs Try to Identify in Georgia DUI Drugs Less Safe Cases
1. CNS Depressants and GA DUI Drugs Charges
CNS depressants “slow” down a person’s brain and central nervous system. Alcohol is the most prominent CNS depressant. Other popular CNS depressants include anti-anxiety tranquilizers, anti-depressants, anti-psychotic tranquilizers and various derivatives of barbituric acid. It seems anomalous to classify “anti-depressants” as depressants; however, medical doctors, toxicologists and DREs generally classify drugs according to their effect on the brain and body, not their effect on mood. Specific drugs include Xanax,Valium, Rohypnol, Halcion, Soma, and GHB.2. CNS Stimulants and GA DUI Drugs Charges
CNS stimulants “speed up” a person’s mind and central nervous system. Cocaine and methamphetamine are the two most commonly abused stimulants. Ritalin, Cylert, ephedrine, and caffeine are other well-known stimulants.3. Hallucinogens and GA DUI Drugs Charges
Hallucinogens impair a user’s ability to perceive reality by distorting perceptions of sight, sound, touch, and odors. They may even cause “synesthesia,” a phenomenon where a person “mixes” the senses. For example, a person may “see” sounds or “hear” colors. This category includes natural substances like peyote, psilocybin, and morning glory seeds, as well as synthetic substances like lysergic acid (LSD) and Ecstasy (MDMA).4. Pcp (and Its Analogs) and GA DUI Drugs Charges
PCP and its analogs, including Ketamine, are “dissociative anesthetics.”They are extremely dangerous. People under the influence of PCP may be very violent.5. Narcotic Analgesics and GA DUI Charges
Narcotic analgesics include opiate class drugs and similar synthetic drugs. Most prescription painkillers are narcotic analgesics. This category includes heroin, morphine, codeine, methadone, Oxycontin, Vicodin, Percodan, Fentanyl, Dilaudid, and Demerol. Narcotic analgesics are the only drugs that routinely constrict a person’s pupils. Narcotic analgesics are highly addictive.6. Inhalants and GA DUI Charges
Named for their primary method of ingestion, inhalants are breathable chemicals, including volatile solvents, propellant gases or aerosols, and some anesthetic gases. This group includes glue, gasoline, paint thinner, hair spray, insecticides, nitrous oxide (“laughing gas”), amyl nitrite, and ether. Some solvents, like aerosols and anesthetic gases, are extremely fast-acting, short-duration substances, while others, including volatile solvents, may produce effects for several hours.7. Cannabis and GA DUI Charges
Cannabis is the scientific name for marijuana. The active ingredient in cannabis is delta-9 tetrahydrocannabinol or THC. This category includes cannabinoids and synthetics like dronabinol.\Georgia DUI Marijuana Charges
Blood test results in Georgia DUI marijuana cases typically are reported as: __ ng/mL of 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid. 11-nor-9-Carboxy-THC, also known as 11-nor-9-carboxy-delta-9-tetrahydrocannabinol, 11-COOH-THC, THC-COOH, and THC-11-oic acid, is the main secondary metabolite of THC which is formed in the body after Cannabis is consumed. THC binds to cannabinoid receptors and interferes with important endogenous cannabinoid neurotransmitter systems. Receptor distribution correlates with brain areas involved in physiological, psychomotor and cognitive effects. Correspondingly, THC produces alterations in motor behavior, perception, cognition, memory, learning, endocrine function, food intake, and regulation of body temperature. THC is primarily metabolized to 11-hydroxy-THC which has equipotent psychoactivity. The 11-hydroxy-THC is then rapidly metabolized to the 11-nor-9-carboxy-THC (THC-COOH) which is not psychoactive. The National Highway Traffic Safety Administration (NHTSA) has recognized that the metabolite of THC in marijuana that is measured in Georgia DUI blood tests is not psychoactive, and if the metabolite is not psychoactive, it does not impair driving ability. According to NHTSA:It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. THC concentrations typically peak during the act of smoking, while peak 11-OH THC concentrations occur approximately 9-23 minutes after the start of smoking. Concentrations of both analytes decline rapidly and are often < 5 ng/mL at 3 hours. Significant THC concentrations (7 to 18 ng/mL) are noted following even a single puff or hit of a marijuana cigarette. Peak plasma THC concentrations ranged from 46-188 ng/mL in 6 subjects after they smoked 8.8 mg THC over 10 minutes. Chronic users can have mean plasma levels of THC-COOH of 45 ng/mL, 12 hours after use; corresponding THC levels are, however, less than 1 ng/mL. Following oral administration, THC concentrations peak at 1-3 hours and are lower than after smoking. Dronabinol and THC-COOH are present in equal concentrations in plasma and concentrations peak at approximately 2-4 hours after dosing.Suggested articles regarding DUI marijuana include: Cannabis findings in drivers suspected of driving under the influence of drugs in Finland from 2006 to 2008. Tom Blencowe, Anna Pehrsson, Sirpa Mykkänen,Teemu Gunnar, Pirjo Lillsunde.Alcohol and Drug Analytics Unit, National Institute for Health and Welfare, P.O. Box 30, FI-00271 Helsinki, Finland. Received 18 May 2011; received in revised form 3 October 2011; accepted 4 October 2011. published online 24 October 2011.
The authors examined driving under the influence of drugs (DUID) cases which were found to be positive in whole blood for cannabis in Finland from 2006 to 2008. Factors studied were the number of cases positive for any combination of Δ9-tetrahydrocannabinol (THC) and the metabolites 11-hydroxy-Δ9-tetrahydrocannabinol (THC-OH) and 11-nor-9-carboxy-Δ9-tetrahydrocannabinol (THC-COOH). Concurrent use of amphetamines, benzodiazepines and/or alcohol was also recorded, as well as the drivers' age and gender. Altogether 2957 cannabis positive cases were retrieved from the database of the Alcohol and Drug Analytics Unit, National Institute for Health and Welfare. Drug findings were examined in relation to the zero-tolerance policy operated towards DUID in Finland. The number of cannabis positive cases in each year was approximately 1000 and the main demographic of cases was males aged 20–30years. In the majority of cases (51.6%) the inactive metabolite THC-COOH was the only indication of cannabis use, however, associated use of amphetamines (58.8% of all cases) and/or benzodiazepines (63.9%) in cannabis positive drivers was very common. Detections for amphetamines and/or benzodiazepines were especially common in drivers with THC-COOH only (92.8% of these cases). Combined use of alcohol (25.7%) was also prevalent. Suspect DUID cases generally arise from suspicion on behalf of the police and the zero-tolerance policy offers an expedient means to deal with the challenges presented in DUID, particularly in view of the high incidence of multiple drug use – the legislation is not unduly punitive when enforced in this manner.
Georgia DUI Drugs: Cocaine
As we have discussed before, driving under the influence of drugs can be the basis for a DUI charge. Cocaine, unlike some other drugs, can be the basis for a DUI – Per Se charge. That means that the State can allege a violation of Georgia DUI law through simply have cocaine in your blood, urine, or other bodily substance. Often times, I still see DUI drugs cases being prosecuted with DUI – Per Se charges when they could be. DUI Defense Lawyers need to be aware of this oversight, and take advantage of it. If you have a DUI – Less Safe charge only and the blood or urine test shows the presence of cocaine or any other drug, you have been presented with an opportunity. The State must show impaired driving ability as a result of the charge they have elected to proceed upon. The presence of the cocaine metabolite, Benzoylecgonine, in and of itself is insufficient to establish impaired driving ability for the purposes of a DUI Drugs charge in Georgia. Benzoylecgonine, a cocaine metabolite, does not indicate impairment – driving or otherwise. Benzoylecgonine metabolites can also be produced as a result of the use of some herbal teas. If you have been charged with DUI drugs in Georgia, contact a qualified Georgia DUI defense lawyer to discuss your case.
Can an Illegal Stop Lead to a Georgia DUI Charge?
Was it an illegal stop that led to a Georgia DUI charge? In this post, which I will try to update on an ongoing basis, I will provide recent Georgia DUI cases (or Georgia criminal cases more generally) addressing the sufficiency of evidence to a stop a vehicle. It is important to recognize that if a stop is found to be illegal, all evidence gained by the police thereafter will be suppressed. That means field sobriety tests, portable breath tests, and state-administered chemical tests performed following a stop that is found to be illegal will not be admissible in the trial of a DUI case.
Christian v. State
What a horrible case to begin this post with. Christian is epitome of Georgia DUI cases that literally bend over backwards to bring legitimacy to DUI cases that are of very questionable validity.
[T]he record reflects that at 8:26 a.m. on July 27, 2010, a law-enforcement officer with the Whitfield County Sheriff's Office observed Christian's pickup truck “gripping” the pavement while making a distinct scratching sound. The officer also noticed that the truck bore a Tennessee license plate, which, in light of the erratic driving, further raised his suspicions about the vehicle being in this particular subdivision that early in the morning. Accordingly, the officer relayed the tag information to dispatch and was informed that the tag returned as “not on file.” The officer then stopped the truck to investigate further.
Can you get a DUI on private property in Georgia?
One of the questions that I'm commonly asked is where it is you can be charged for DUI in Georgia, that is can you be charged with a DUI when you're on your own private property. The answer to that is yes you can be charged with a DUI despite the fact that you're on private property. In fact, if you're on an island in the middle of the lake you were operating a motor vehicle here in the State of George, within the territorial confines of the State of Georgia, you can be charged with a DUI. That does not mean you will be convicted of a DUI, but yes you can be charged. The one caveat that I would point out, in an issue that needs to be litigated, is that for people that are charged in Federal Court under the assimilated crimes act, a challenge needs to be raised as to whether or not the Georgia rules are read, and Georgia DUI statute, that can be prosecuted that's on property that is within the exclusive jurisdiction of the United States. That's one caveat that I want to point out to you.
Another question that people commonly asked me is do I have to actually be driving a motor vehicle at the time that an officer charges me with DUI? Or initiates an investigation for DUI? The answer for that is no, you do not need to actually be driving, however they do need to establish that in fact you were driving while you were in a condition of being impaired or above the legal limit. Obviously, you may have just recently had driven or that person could look at certain circumstances involved in the case and say that you had recently driven a motor vehicle. And that might be a basis to substantiated DUI charge and possibly a conviction. That's through what's called circumstantial evidence, which is just inferences that a judge or juror might draw from for the particular facts of your case. So, that will be decided on a case by case basis whether or not the State can prove beyond a reasonable doubt that you drove while you were in a condition of being impaired by alcohol or drugs, or in a condition of having alcohol concentration greater than o.o8 grams.
How Soon Must a DUI Breath or Blood Test be Performed in Georgia?
With regard to DUI cases involving serious injuries or fatalities, O.C.G.A. § 40-5-55(a) imposes an additional requirement upon law enforcement personnel that blood, breath, or urine tests be performed as soon as possible.
O.C.G.A. § 40-5-55(a) requires that the state-administered chemical tests performed upon a DUI suspect “shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities.” This Court has interpreted this requirement of O.C.G.A. § 40-5-55(a) to mean that the state-administered chemical must be performed “as soon as practicable under the circumstances.” Seith v. State, 225 Ga. App. 684, 686, 484 S.E.2d 690, 693 (1997) (emphasis added).
In order to develop this issue, be sure develop a record as to:
- the timeline of arrival, arrest, reading of implied consent, and arrival at the testing facility,
- the number of officers on the scene,
- the tasks being performed by other officers, and
- other, closer facilities at which testing could be performed.
Why do lawyers tell 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 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.
Did an officer say that you had bloodshot and watery eyes in a DUI investigation?
DO NOT EVER BE CONCERNED ABOUT AN OFFICER'S TESTIMONY THAT A PERSON HAS BLOODSHOT OR WATERY EYES IN A DUI CASE.
Most of us know from common experience that bloodshot and watery eyes can be caused by a number of different things. Allergies, smoking, fatigue, etc. are all things that can cause someone to have bloodshot and watery eyes. During a DUI trial, however, we frequently hear officers testify that bloodshot and watery eyes are indications of possible impairment. It is complete nonsense. The National Highway Traffic Safety Administration has recognized how silly this purported correlation is:
Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors.
Jack Stuster, U.S. Department of Transportation, NHTSA Final Report, The Detection of DWI at BACs Below 0.10, DOT HS-808-654 (Sept. 19
How is bond posted in a Georgia DUI case?
Bail or bond in Georgia DUI cases is set in accordance with O.C.G.A. §§ 17-6-1 and 17-6-2. All defendants in custody must be transported and presented to the court for their initial appearance within the time requirements of O.C.G.A. § 17-4-26 and § 17-4-62 for further consideration of bail.
Bond in a Georgia DUI case may be posted by:
(1) Cash by a deposit with the sheriff of an amount equal to the required cash bail; or
(2) Property by real estate located within the State of Georgia with unencumbered equity, not exempted, owned by the accused or surety, valued at double the amount of bail set in the bond; or
(3) Personal recognizance of the defendant in the discretion of the court;
(4) Professional by a professional bail bondsman authorized by the sheriff and in compliance with the rules and regulations for execution of a surety bail bond.
Bond in a DUI case may be conditioned upon such other specified and reasonable conditions as the court may consider just and proper. The court may restrict the type of security permitted for the bond although the sheriff shall determine what sureties are acceptable when surety bond is permitted.
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 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.
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By Attorney Ben Sessions
Contributer
Ben Sessions has personally tried over 60 cases to a jury, and he has successfully litigated cases before both the Georgia Supreme Court and the Georgia Court of Appeals. We understand that aggressively preparing cases for a jury trial is frequently the best way to a resolve a case. When you meet with us, we’ll help you understand the process and we’ll also relieve a lot of the stress that you may have about the process involved with your case. If you want a lawyer that is willing to fight to the very end for your cause, Ben Sessions is the lawyer for you. Ben has built his reputation among former clients and other lawyers by being willing to stand up for people in the hardest times in their lives. If the obstacles in your case seem too large, if the other side appears too rich, if the other side appears to have too much power, Ben Sessions is the lawyer you need to call.