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1. How do you defend
a DUI case?
This is a common question. The answer is not the same for any two cases, but there are common elements of law and fact we look for in assessing a case. Each case generally involves three separate and important events. First: What caused the stop to take place? Our law and our inherent freedoms promise you liberty to go about your business free from unnecessary government intrusion. Generally speaking, an officer must have a reason to stop you based on an “articulable suspicion.” The presence of articulable suspicion is dependent on the specific facts and reasonable inferences drawn by the officer before the stop. The officer may not stop based on mere suspicion or hunch. Roadblocks are different as they have their own set of rules canceling the articulable suspicion standard but imposing other requirements on police intrusion into citizens’ lives. Reasons offered by the police are varied but may include moving violations, sobriety checkpoints (roadblocks), equipment violations, motor vehicle accidents, disabled vehicles, citizen complaints, emergency calls and others. It is important to probe into the reason for the stop to determine whether a constitutional violation of your rights has taken place. If so and if it can be proven, you are entitled to a complete dismissal of all charges arising from the stop. Second: What happens between the time of the stop and the decision to arrest? Typically, the officer will request your license and insurance. Then, he may return to his car to call dispatch to be sure there are no warrants outstanding. He also may check on your criminal history to determine what previous arrests you have. Then he will ask if you’ve been drinking. Regardless of your answer, he will probably ask you if you mind stepping out of the car to perform some field sobriety tests. These tests are voluntary and you are not required to do them by law. The officer will give you many instructions that may be confusing. You will not be told what the officer is looking for and you will not be told how you scored on each test. After these tests, you will be placed under arrest. It is during this stage of the encounter that the officer must determine from the available information whether he has “probable cause” to arrest. Probable cause means that the officer has sufficient information with which to form an opinion that a crime has probably been committed. If the officer does not have probable cause to arrest, then the prosecution may not use any evidence obtained as a result of the arrest. The defense investigation will look at the officer’s method of gathering information and the fairness of his conclusions. Conditions such as lighting, weather, road surface, footwear, preexisting medical conditions, fear, anxiety, stress, coordination and the officer’s experience, demeanor and professionalism all play an important role in preparing a defense to the DUI. Third: What happens after the arrest? Most DUI convictions are based largely on evidence gathered at this stage of the encounter. It is here the police will seek to obtain a breath or blood test. At the time of a DUI arrest, important legal requirements spring up. The officer must advise you of “implied consent” rights. These rights must be read at the time of the arrest or as close thereto as is practicable. This usually means at the scene of the stop while sitting in the police car. These rights change depending on the type of vehicle (commercial or passenger), and the age of the driver. Generally, the rights tell you that the law implies your consent to submit to state testing of your bodily fluids for the purpose of determining if you are breaking the DUI law. If your alcohol level is above a certain number, your license or privilege to drive will be suspended. If you refuse to take the test, your license or privilege to drive will also be suspended and the judge or jury will be told of the refusal and may use that against you. Finally, you will be offered an opportunity to take an independent test administered by someone of your own choosing and at your own expense. The officer must select the correct version of the implied consent and must read it at the appropriate time. Also, the officer should not offer any misleading or coercive statements in order to get you to take the test. If you ask for an independent test, the officer must accommodate your request to obtain money and transport you to a local person of your choosing who is qualified to draw a sample of your blood, urine or breath. This typically means a ride to an ATM and then to the hospital for a blood test. If the officer fails to perform according to these rules, the officer’s alcohol test may not be used against you. The facts are developed by witness interviews, document inspection, audio and videotape reviews, and sometimes expert testimony. In every case, the defense lawyer’s job is to remove illegally obtained evidence from the prosecution’s case and to explain apparent incriminating evidence consistent with a theory of innocence. 2. What is this
paper the officer gave me to drive on?
Depending on the officer and the facts of the case, you may have been given a yellow piece of paper to drive on after your arrest. That paper will have “DPS-1205” printed on the bottom. If you have received that paper, you must act quickly to protect your driving privileges. A request for a hearing by the Georgia Office of State Administrative Hearings must be sent within 10 business days of your arrest. Failure to request this hearing will result in a suspension of your license even though you have not even been to court yet. 3. How will a DUI
conviction affect my career? A DUI arrest and conviction can obviously have costly vocational consequences. Military personnel will lose eligibility for clearances and promotions. If you drive a company vehicle or work for any government-regulated employer, it is likely your job will be in jeopardy. On the other hand, a first DUI does not automatically prevent acceptance into graduate or professional school. Likewise, it does not automatically prevent acceptance into most professional and vocational associations. 4. Will I have to go
to jail and, if so, will I be safe in jail?
If you are convicted and if your alcohol level was .08 or higher, at least 24 hours in jail is a minimum mandatory sentence for a first DUI. Subsequent offenses have longer mandatory sentences and fines. If you have a history of DUI convictions, you should not expect a minimum sentence. It is likely the court will impose a longer jail sentence if you are convicted. DUI sentences are usually served in the county jail. They are designed to be unpleasant. However, in over 17 years of practice in this area, I have rarely heard complaints of physical abuse or injury at the hands of other inmates or by corrections officers. If you do have to spend time in jail, leave your attitude at home and understand jail is not a fast food restaurant-you don’t get to have it your way. With this frame of mind, jail should not be a problem. 5. Will I lose my
license and, if so, for how long? This will depend on your age, the number of DUI convictions in the last 5 years and your alcohol level. Generally, if you are 21 years old, a first DUI will cause a 1-year suspension with the possibility for early reinstatement after 120 days. A “work permit” may also be available. If you are under 21, a first DUI will cause either a 6-month or a 12-month revocation of your license depending on whether your alcohol level was under or over .08. No work or school license is available for under 21 drivers convicted of DUI. Subsequent DUIs within 5 years have longer suspension periods lasting up to 5 years. In addition, special insurance, alcohol education and treatment sessions, and ignition locking devices for your vehicle may be required before you can apply for a license. 6. Will this go on
my record and can I get it expunged? There are several “records” generated by a DUI arrest. First, there is a court record that is kept by the clerk of court. This is a permanent record, but it is usually not convenient to access so it is rarely looked at. Second, the arrest and booking process generates a record that is sent to the Georgia Crime Information Center (GCIC). This arrest report is entered in a computer that includes your name, date of birth, description, fingerprint information, and any other criminal history you may have. This record is usually entered within a few weeks of your arrest. Once your case is over, another record of the disposition is sent to the GCIC. The disposition will indicate whether the case resulted in a dismissal, acquittal, plea or conviction. The GCIC record is also linked to the National Crime Information Center (NCIC). Thus, the records from your DUI are available nationwide. However, GCIC and NCIC records are considered confidential and are generally not available to the public absent permission from you. Law enforcement, prosecutors, and certain government agencies do have access to your records and will typically review these records before court to determine your history. Also, prospective employers frequently request your consent to obtain your GCIC records before they will interview you. If you give your consent, the employer will also have access to your GCIC record. Finally, a DUI conviction will generate an entry onto your Motor Vehicle Report maintained by the Georgia Department of Motor Vehicle Safety. This report is also confidential. It is kept as a 3 year and a 7 year history. The most common use of this report is by insurance companies. When you buy insurance, you typically sign a form authorizing the insurer to obtain a copy of your driving history that will be used to rate your risk level as a driver. Probation is the imposition of a jail sentence that is not spent in jail, but on probation. Taking probation lightly is a serious mistake. On probation, you will be required to meet weekly with a probation officer. You will pay $33.00 per month for supervision fees. You may also be subject to random alcohol and drug screens at your expense. You will also report all community service to the probation officer. The probation officer’s job is to be sure you understand the court’s sentence and to be sure you follow that sentence. If you violate any of the terms of the court’s sentence, the probation officer is obligated to the court to report the violation. If that happens, the court may decide to arrest you and hold you without bond until a court date can be scheduled. At court, you will have an opportunity for a hearing if you claim you did not violate your probation as alleged. The judge will decide the case. If the judge finds that you have violated your probation, the judge will decide what additional sentence is appropriate depending on the circumstances. 8.
Will the police or the prosecution call my insurance company? Not usually. As mentioned above, a DUI conviction is reported on your Motor Vehicle Report. When you applied for insurance, you gave your insurance company the right to look at your driving record. Insurance companies regularly access a customer’s 3-year history in order to rate insurability and risk. How often an insurance company might look at your record will depend on your present risk category. If you are under 24 years of age, single, and enrolled in school, it is likely your insurance company will review your history at least annually. 9. My initial court
date conflicts with another important date, can I get a continuance? For good cause shown, the judge may grant a continuance. No one else has the authority to excuse your attendance at court. If you need another court date, you must contact the court directly or have your lawyer request a new date. 10. Can I plead nolo
contendere? Since 1997, the nolo contendere plea has lost most of its usefulness in DUI cases. It is now treated exactly the same as a conviction. The only possible purpose to utilize the plea is to avoid an admission when an accident has taken place and a civil lawsuit is expected. Even then, the plea must be approved by the court and is not allowed if the alcohol level is above .15. |