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General Information about DUIs

It is our opinion a DUI is the most serious misdemeanor and in many ways more serious than several felonies in the State of Georgia. A DUI charge brings the risk of a license suspension, loss of job, substantial jail time, and the charge can never be expunged from your record under current Georgia Law.

A person cannot plea under Georgia’s First Offender Act in a DUI case. A person can plead nolo under limited circumstances, but the nolo is treated as a guilty plea for all driving related purposes. There are no programs that allow a person to have the charge dismissed or reduced. If you choose to take the state administered test and you score over the legal limit then it is your burden to show the machine was not accurate. This means you will have to hire experts and spend large sums of money if you want to fight the case. If you choose to refuse the test then you are going to face a one-year suspension of your driver’s license.

Many lobby groups have made DUI prevention the most focused area of local law enforcement agencies. These groups have lobbied many lawmakers to pass laws that are borderline Constitutional and in this firm’s opinion Unconstitutional in many cases. The lawmaker’s trend has been a constant erosion of a person’s rights.
A great example is the breath test itself. For scientific evidence to come into a case in any civil or criminal matter in Georgia an expert must lay a foundation in order for the court to accept the evidence. In layman’s terms this means that if a lawyer wants to use scientific evidence they must have someone qualified explain how it works and why it is trustworthy.

The state of Georgia currently uses the Intoxilyzer 5000 and is the process of replacing existing machines with the Intoxilyzer 9000. Tests have shown the machines are not accurate and many interferants can cause erroneous high readings, but the Georgia legislature ignores these facts. Our state has a statute that says it comes into evidence and it is presumed to be good evidence. The officers using these machines don’t know how they work, they just know how to use it. Further the company that makes the machines will not disclose how they calculate the number.

DUI charges have two separate parts to each case. The first is the 1205 Administrative Hearing. DUI task force officers and patrol officers issue a 1205 form after making a DUI arrest. They send this to the Georgia Department of Driver Services and the Department of Driver Services suspends your license after 30 days. In order to prevent the suspension a person must file an appeal with the department within 10 business days from the date of arrest.
When the Department of Driver Services receives a letter appealing the suspension they set a court date in front of an Administrative Law Judge. The hearing is not a jury trial. It is a civil proceeding determining whether the officer properly conducted his DUI arrest. The judge then issues a ruling on several technical issues.
The second part of the DUI is the criminal charge. This part of the case requires the state to prove that you are guilty beyond a reasonable doubt. Repeat DUI offenders are treated more harshly than first time offenders. Our state has passed laws that allow prior convictions to come into evidence at trial. The laws require statutory minimums. Prosecutors and Judges regularly give more than the required minimums.

The Penalties

First DUI conviction in ten years

-one-year license suspension with a limited permit available (you can gain full driving privileges after 120 days if a DUI risk reduction course is taken)
-$300.00-$1000.00 fine (not including court costs)
-A period of jail time not less than ten days nor more than one year (Judge has discretion to reduce to 24 hours)
-Minimum of 40 hours of community service
-A DUI Risk Reduction Course
-A drug and alcohol evaluation is required but may be waived by the Judge
-12 months probation

Second DUI conviction in ten years

-An 18-month license suspension (a hard suspension for the first 120 day and then a limited permit requiring an ignition interlock device for the remainder of the sentence)
 -A fine of not less than $600.00 nor more than $1,000.00
-A period of jail time for not less than 90 days nor more than one year (Judge has discretion to reduce to 72 hours in jail)
-Minimum 30 days community service (240 hours)
-A DUI Risk Reduction Course
-A drug and alcohol evaluation and completion of substance abuse treatment
-12 months probation


Third DUI conviction in ten years (aggravated misdemeanor)

-A fine of not less than $1,000.00 nor more than $5,000.00
-A period of not less than 120 days in jail and no more than one year (Judge has discretion to reduce to 15 days in custody).
-Minimum of 30 days community service
-A DUI Risk Reduction Course
-Surrender your license plate
-You will be declared an HV violator

Fourth DUI conviction within ten years (felony)
-$1,000.00- $5,000.00 fine
-Imprisonment from one to five years (this can be reduced to 90 days if person enters a DUI court program
-480 hours of community service
-A DUI drug and alcohol risk reduction course
-A drug and alcohol evaluation along with the treatment

Important: In July of 2008 a law went into effect and counts back 10 years. However, DUIs which occurred before the July date still use the five year look back period. DDS still uses the five-year period for license suspension purposes.


Different Types of DUI Charges

In Georgia there are DUI less safe charges and a DUI per se. O.C.G.A. has a total 5 different types of DUI charges. A person cannot drive or be in actual physical control of any moving vehicle while:
(a)(1) Under the influence of alcohol;
(a)(2) Under the influence of any drug;
(a)(3) Under the intentional influence of any glue aerosol, or other toxic vapor; or
(a)(4) Under the combined influence of any 2 or more of these substances, to the extent that it is less safe to drive;
(a)(5) A person cannot have an alcohol concentration .08 grams or more at any time within 3 hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.

The State often charges you with more than one count under different code sections. This gives them more than one bite at the apple. A recent development in Georgia DUI law is the DUI child endangerment statute. For each child a person has in the car when stopped, the State has the option to bring a DUI child endangerment charge. This charge is treated like an entirely separate DUI. If you have had two drinks after a little league game and you drive two kids home then you are facing the possibility of three DUIs. This would mean you would face a 5-year suspension and a minimum of 18 days in jail.

So What do I do if I am Pulled Over

There is no clear answer. Our firm recommends different actions in different situations. The advice depends substantially on how much you have had to drink and the officer’s training. If you have had very little to drink and believe you are not impaired we typically encourage taking all tests and then demanding a blood test if the officer places you under arrest. You need to explain to the officer any physical ailments you may have that would affect your ability to perform field sobriety tests.
If you are stopped and think you are over the limit the best advice in most cases is to refuse everything. The field sobriety tests are subjectively graded. The Officer will probably tell you he is just trying to gather some information, that information is evidence against you. Only one of the certified field tests approved by The National Highway Safety Administration is a scientific test. This test is called the horizontal gaze nystagmus test.
The other two tests approved by the National Highway and Safety Administration are divided attention tests designed to emulate driving. They are the walk in turn and one-legged stand tests. These are difficult for many people to do when sober much less when they have had a few drinks. These field tests give the arresting officer a way to articulate why he or she thinks you are under the influence. Officers learn these tests in a classroom setting, in perfect conditions, and perform them on people who have no physical ailments and are not under the threat of arrest.
Almost half of the DUI arrests our firm encounters are made by well-trained task force officers. They have testified hundreds of times about field sobriety clues and signs of impairment. They will make you sound drunk if you look sober on a video. This is why we do not recommend taking the field sobriety tests unless you feel 100% sober.

There are a few important things to know about the breath test. The first is a refusal will result in a one-year license suspension unless appealed. The second is that all individuals who take the test and score over the legal limit give the state a second way to charge a DUI. If you take the test and score over you are entitled to a blood test, and should ask the officer to give you the test.

Our Firm and DUI

While DUIs are serious charges and are commonly brought by the State, they can be difficult for the State to prove.  There are many procedures that must be performed and deviations from procedure often result in evidence being suppressed. Inexperienced Officers or Officers that make short cuts can find themselves in hot water on the stand. 

We go through an exhaustive interview with our clients looking for the kind of details that could cause a false positive on a breath test or create problems with evidentiary issues. We look for ways to explain behavior that could make an officer wrongfully believe you are under the influence.

We go through a background check of the arresting officer. We obtain his training history and request prior police reports to see what kind of experience he has and what tests the officer likes to perform.  We then get videos (when available) and talk to officers we know to find information about the arresting officer. Finally, when we have this information we make decisions on what kind of motions and what types of trial strategy or plea bargain we can obtain.

Our firm has handled more than one hundred DUI cases with great success. We are often able to obtain reductions in the charge without having to go to trial. Please feel free to call us for a free consultation.



Common DUI Defenses

While DUIs are serious charges and are commonly brought by the State, they can be difficult for the State to prove. There are many procedures that must be performed and deviations from procedure often result in evidence being suppressed. Inexperienced Officers or Officers that make short cuts can find themselves in hot water on the stand.

We go through an exhaustive interview with our clients looking for the kind of details that could cause a false positive on a breath test or create problems with evidentiary issues. We look for ways to explain behavior that could make an officer wrongfully believe you are under the influence.

We go through a background check of the arresting officer. We obtain his training history and request prior police reports to see what kind of experience he has and what tests the officer likes to perform. We then get videos (when available) and talk to officers we know to find information about the arresting officer. Finally, when we have this information we make decisions on what kind of motions and what types of trial strategy or plea bargain we can obtain.

Our firm has handled hundreds of DUI cases with great success. We are often able to obtain reductions in the charge without having to go to trial. Please feel free to call us for a free consultation.

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