Attorneys of Farnsworth and Murphy

Defending You From DUI Charges

Driving Under The Influence Of Drugs Or Alcohol

A charge of Driving Under the Influence (“DUI”) of alcohol or drugs can be intimidating.   Very often people are concerned about their driver’s license, their job, and the potential to go back to jail.  Not to mention the embarrassment of being arrested and booked into jail.

In Georgia, when you’re arrested for DUI you typically have two cases: a civil case that pertains to your driver’s license and a criminal case that pertains to the citations the Officer drafted.    While both cases are separate and will be handled in different courts, they very often have an impact on each other. An attorney can help navigate through both cases with a goal of protecting a driver’s license and avoiding a conviction for DUI.

THE CIVIL CASE

After an arrest for DUI alcohol or drugs, a Police Officer is trained to read the driver being arrested the Georgia Implied Consent Notice.   In Georgia the three separate forms of the implied consent notice are:

  • Drivers arrested for DUI that are over the age of 21,
  • Drivers arrested for DUI that are under the age of 21
  • Drivers arrested for DUI who are arrested for DUI while operating a commercial vehicle.

The key distinction for each implied consent notice is the blood alcohol concentration levels (see below).   The current version of the implied consent notice is long and confusing.  For example, for drivers over the age of 21, the implied consent notice provides:

Implied consent notice for suspects age 21 or over:

The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state-administered chemical tests of your (designate which test)

The response the person gives to the implied consent notice (question) will dictate how the civil case of a DUI arrest will proceed.   The person’s decision to refuse state administering testing or take State-administered testing can ultimately determine the length of an administrative suspension and the person’s eligibility for a limited driving permit.

After a driver is arrested for DUI and the implied consent notice is read then the Police officer is trained to seize the driver’s license of a driver who has been charged with DUI alcohol or drugs.  In many cases, the Police Officer will then take a driver’s license and submit a Form DS-1205 to the Georgia Department of Driver Services. Form DS-1205 acts a petition to the Department of Driver Services to suspend the driver’s license of a person arrested for DUI, even before that person has been convicted of DUI.   The DS-1205 will outline the driver’s general information, their response (or silence) to the implied consent warning, and (on the backside of the form) the procedure to appeal the Police Officer’s petition.

Appealing a DS-1205 petition is often the first step in any DUI alcohol or drug case.   A person charged with DUI alcohol or drugs had 30-days to submit an appeal of the DS-1205 with a $150 filing fee.   As a result, the civil case will then begin with the Office of State Administrative Hearings (“OSAH”).  The hearing is generally held in the county where the driver was arrested, but sometimes can be held in a neighboring county if the jurisdiction is outside of the metro-Atlanta area.    A person appealing the DS-1205 petition can have a lawyer present on their behalf the administrative hearing, but the administrative judge is NOT required to appoint an attorney at the administrative hearing.

At the hearing, the Police Officer will need to demonstrate that there was sufficient evidence to place the driver under arrest for DUI and that the proper implied consent notice was read.   The administrative judge will then make a ruling either denying or affirming the Police Officer’s petition to suspend the driver’s license of the accused.   There are other strategic decisions that a lawyer can assist with prior to the actual hearing that may help save a driver’s license moving forward.

THE CRIMINAL CASE

The criminal portion of a DUI case is the main part of any DUI case.   Most individuals charged with DUI are arrested and taken to the county jail or city jail.  But, that’s not where the case ends.  People charged with DUI are often given a series of citations associated with their charges.  Those citations (tickets), act as the initial charging document for the criminal portion of the case.  The citation will include the charges the Police Officer believes to have occurred, the name of the jurisdiction, and the next court date, if known.

What’s the difference between DUI Less Safe and DUI Per Se?

Georgia DUI law separates the type of DUI offense being charged into different categories.  These categories are:

  • Under the influence of alcohol to the extent that it is less safe for the person to drive;
  • Under the influence of any drug to the extent that it is less safe for the person to drive;
  • Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;
  • Under the combined influence of alcohol and drugs to the extent that it is less safe for the person to drive;
  • The person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or
  • A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.
  • A person shall not drive or be in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person’s blood, breath, or urine.

If you are researching Georgia DUI law on the internet you may have come across the term’s DUI Less Safe and DUI Per Se.   DUI Less Safe and DUI Per Se are two different ways that the prosecution can charge a person with DUI.

  • DUI Less Safe charges the act of operating a motor vehicle while under the influence of alcohol to the extent was less safe to do so.
  • DUI Per Se charges a driver with operating a motor vehicle over a specific alcohol concentration. The alcohol concentration can depend on the driver’s age or the vehicle they are operating.  The three separate alcohol concentrations are:
    • An alcohol concentration over .02 for drivers under the age 21
    • An alcohol concentration over .04 for drivers arrested while operating a commercial vehicle.
    • An alcohol concentration over .08 for drivers over the age of 21

WHAT ARE FIELD SOBRIETY TESTS?

Field sobriety tests are a series of field evaluations that Police Officer’s use to determine if someone is under the influence of alcohol are drugs.  Most of the modern field sobriety testing used today are procedures established by the National Highway and Traffic Safety Administration (“NHTSA”).  Police Officers in Georgia are trained on the NHTSA methods during their basic training.   Several Police Officers, such as DUI task force Officers, will go beyond the basic training level of field sobriety testing and will seek advanced course in the administration of field sobriety testing.  Field sobriety testing is far from perfect in its application to a DUI investigation.  Further, the Police Officer’s actual administration of the field sobriety tests can sometimes call into question their accuracy.

WHAT ARE THE FIELD SOBRIETY TESTS FOR DUI ALCOHOL?

Police Officers are trained to administer a battery of three separate field sobriety tests in a DUI alcohol investigation.  Those three tests are:

  • Horizontal Gaze Nystagmus Test (“The Eye Test”)
  • The Walking Test; Walk and Turn Evaluation
  • The One Leg Stand Test

The Police Officer is trained to look for a series of clues that may indicate that the person is under the influence of alcohol.   These clues vary for each test and often are very easy to display, regardless of alcohol impairment.   The Police Officer will gather these clues and note them in their police report as the basis for making an arrest.    The clues the Police Officer are looking for are NOT described the subject of the testing during testing.   As such, many people feel like they passed field sobriety testing based on their ability to walk and talk in a normal fashion.  Unfortunately, the clues the Police Officer are looking for can be very minor and often can result in an arrest.

Prosecutors will take the results of the field evaluations and present them to the jury as evidence that the person being charged with DUI is under the influence of alcohol.  Field sobriety tests are generally the key piece of evidence a prosecutor will in trying to prove the DUI Less Safe charge.  However, as mentioned above, not all field sobriety testing is perfect.  In fact, most field sobriety testing can create false positives that can lead to the arrest of an innocent person.  An experienced DUI lawyer can assist in attacking not only the administration of field sobriety tests but the flawed logic of field sobriety testing in general.

CHEMICAL TESTING AND HOW IT CAN IMPACT DUI PER SE CASES

We mentioned earlier that chemical testing can have an impact on your driver’s license through the civil side of a DUI case.  Chemical testing can also have an impact on the criminal side of a DUI case.   DUI Per Se charges are dependent on the prosecution being able to introduce a chemical test that displays an alcohol concentration.   As we mentioned above, Police Officers will use the Georgia Implied Consent Notice to try and gather a sample of a driver’s blood, breath, or urine for purposes of chemical analysis.

BREATH TESTING

The most common type of testing in a DUI alcohol case is breath testing.   From a logistical standpoint, breath testing is the easiest way for a Police Officer to obtain a sample.  The Police Officer merely has to take an arrested individual to the police station, place them in front of a breath testing machine, and have the individual blow into the machine.   The machine will then print off a result that will indicate the driver’s blood alcohol concentration.

Breath testing, while convenient for Police Officers, is far from perfect.   The most current machine used in the State of Georgia is the Intoxilizer 9000.  The Intoxilizer 9000 is a machine that the Georgia Bureau of Investigations (GBI) has chosen for the State of Georgia in all breath testing cases.   An experienced attorney will know the in’s and outs of the Intoxilizer 9000 and be able to attack the validity of any breath sample gathered by a Police Officer.

BLOOD TESTING

The Georgia Implied Consent Notice does allow a Police Officer to request a blood sample of an individual arrested for DUI.   This invasive method will require the Police Officer to seek out a certified professional to administered blood testing.  The sample will then be gathered by the Police Officer and shipped to the GBI for further testing.   Blood samples are analyzed for alcohol concentration as well as the presents of illegal or prescription drugs.   Prosecutors will utilize the results of the blood tests as evidence to prove a DUI Per Se charge.   The validity of the results will often depend on the administration of the blood test, the chain of custody of the sample, the method of testing, and the environment in which the sample was tested.   All of which can provide attacks on the prosecution’s evidence.

URINE TESTING

The Georgia Implied Consent Notice does allow a Police Officer to request a urine sample of an individual arrested for DUI.   Urine samples very seldom used in a police investigation because the nature of having to collect the sample and the reliability of a urine screen.  Of the three possible tests, urine samples often provide the least conclusive scientific evidence on alcohol concentration and the presence of drugs that may impair a driver.

THE PROCESS

A DUI charge in Georgia is a misdemeanor offense.  As such, a DUI charge may start in many different courts depending on the location of the arrest.   Several Georgia counties have municipalities within them that have courts that have jurisdiction over DUI offense.  Some offenses occur outside of a municipality and can be assigned to either a County State Court of a County Superior Court, depending on the location.

DUI CHARGES IN MUNICIPAL COURTS

 Municipal Courts in Georgia have jurisdiction for DUI charges that happen with the city limits of that municipality.   Like any other criminal court, the municipal court will have a prosecutor and judge assigned to a case.   The key distinction between a municipal court and a State or Superior court is a municipal court does NOT have jurisdiction to handle a jury trial.   Individuals charged with DUI in Georgia are entitled to a jury trial.   As such, if a jury trial is requested, then a case starting in municipal court will be bound over (transferred) to a higher court for a jury trial.   Examples of municipal courts:

  • The Municipal Court of Atlanta
  • The Municipal Court of Avondale Estates
  • The Municipal Court of Chamblee
  • The Municipal Court of Decatur
  • The Municipal Court of Doraville
  • The Municipal Court of Duluth
  • The Municipal Court of Kennesaw
  • The Municipal Court of Lawrenceville
  • The Municipal Court of Marietta
  • The Municipal Court of Norcross

DUI CHARGES IN STATE COURT

State Courts in Georgia are county courts that handle misdemeanor charges.   As mentioned above, DUI charges are misdemeanor offenses in the State of Georgia.   State Courts have jurisdiction to handle jury trials for a DUI case.   The Solicitor General for the county in which the State Court sits is the prosecuting attorney for a DUI charge pending in State Court.   It is important to note that not every county has a State Court.   Examples of State Courts:

  • Cobb County State Court
  • Clayton County State Court
  • Douglas County State Court
  • Dekalb County State Court
  • Fayette County State Court
  • Fulton County State Court
  • Gwinnett County State Court

DUI CHARGES IN SUPERIOR COURT

 Superior Courts in Georgia are county courts that have general jurisdiction.  General jurisdiction means that a Superior Court can handle any case, felony or misdemeanor.   Some counties do not have State Courts and DUI charges that happen outside of a municipality will then start in a Superior Court.   Superior Courts have jurisdiction over jury trials.  The District Attorney for the county in which the Superior Court sits is the prosecuting attorney for a DUI charge pending in Superior Court.  Examples of Superior Courts:

  • Cobb County Superior Court
  • Clayton County Superior Court
  • Douglas County Superior Court
  • Dekalb County Superior Court
  • Fayette County Superior Court
  • Fulton County Superior Court
  • Gwinnett County Superior Court
  • Newton County Superior Court
  • Walton County Superior Court

DO I NEED AN ATTORNEY TO REPRESENT ME FOR MY DUI CASE?

 A DUI charge in Georgia is a misdemeanor offense that can carry up to twelve months in custody and a $1000 fine.  Plus, a DUI may have a negative impact on your driver’s license if not handled properly.   Not to mention the long-term impact on your ability to get a job with a criminal record.   A skilled attorney can assist in navigating through a DUI case to help put you in the very best possible position.  Every case is different and each case presents different issues that can be explored for purposing of attacking the State’s case.  It’s important to have an attorney assist you with a DUI case because a skilled DUI attorney can find issues that you may not be aware of.

At Farnsworth & Murphy, our lawyers have the experience needed to help fight your DUI case.   Both Daniel and Michael have handled DUI cases all over the State of Georgia and have the training and skills needed to fight your case.   Our focus is our clients and their future is our priority.   Give us a call for a free consultation at 404-525-8500.