January 15, 2013

OVER THE LIMIT DOES NOT MEAN GUILTY- FIGHTING YOUR DUI CASE

     Most of us enjoy happy hour with friends and co-workers after work. The reality of living in Atlanta is that you will have to drive 15-45 minutes home at the end of the night. This means that many of us will have an encounter with a police officer either at a roadblock or because we committed a minor traffic violation. After Midnight, the officers that work are keeping a keen eye out for drivers to weave, fail to maintain lane, or even forget to turn on their headlights, anything to pull you over looking for evidence of DUI. In this edition of Legal Ease I will tell you what to expect when you are pulled over and what to do after your encounter with the police.

PHASE 1: THE TRAFFIC STOP

After the officer observes a traffic violation, no matter how minor, he/she will initiate a traffic stop. Traffic violations that are overlooked in the light of day are not in the dead of night. The officer will make contact with you and he/she will immediately lean in to smell you and your car. Once an odor of alcohol or marijuana is detected you will be elevated to phase two.

PHASE 2: THE FIELD SOBRIETY EVALUATIONS

The standardized field sobriety evaluations consists of the Horizontal Gaze Nystagmus (HGN) or ” the eye test'” the Walk and Turn and the One Leg Stand.  There are other exercises that can be performed but they are not part of the standard battery of tests. The officer will ask you to step out of the car. Once out of the car, you will be asked to perform the field sobriety exercises. These tests are voluntary and you do not have to do them. Officers are not required to tell you that the tests are voluntary and they don’t. Some officers pose the question in such a way that most people believe they have to do the exercises. You don’t and that is the first big decision you have to make. Whether you will go to jail for refusing to perform the field sobriety tests should not be part of the decision because the fact of the matter is once the officer smells alcohol or marijuana on your breath you already have one foot in the jail. It is now a matter of how much evidence you want to provide against yourself.

The HGN is a test developed by the National Highway Traffic Safety Administration (NHTSA). The theory is that after alcohol is consumed it affects the muscles of your eyes in the same way it affects your gross and fine motor skills. This manifests itself in the involuntary jerking of the eye. You are not aware that your eye is jerking and it does not affect your vision. The test was developed to detect impairment in persons who have a high tolerance to alcohol. The officers are looking for six total clues. If you have had two drinks the officer will see all six clues. This is the only scientific test that is part of the standardized field sobriety exercises and it is also the hardest for the officers to perform correctly. This is why it is very important that you hire an attorney who is skilled at defending DUI cases. This is not an area of law that anyone can dabble in.

The Walk and Turn and the One Leg Stand are divided attention exercises. The theory is that driving requires you to divide your attention between several different things, for example, looking in the mirror and applying brakes. These tests are meant to test your ability to listen to instructions and perform the tests. If you are a person of questionable balance, you will fail; if you are overweight, you will probably fail; if you are tired from a long day of work, you will probably fail. Most people upon encountering an officer are very nervous and add to that the blue lights, the dark of night and doing exercises that you are not familiar with is a recipe for failure.

The officer after performing the field sobriety exercises will ask you to blow into the portable breast testing device or PBT. This is a roadside test that is not admissible in court. Although the machine spits out a number, the only thing the officer is allowed to say is that you were “positive or negative” for the presence of alcohol. For people who performed reasonably well on the field sobriety exercises, the officer uses this tool to make their final arrest decision.

PHASE 3: IMPLIED CONSENT

After the PBT you will be placed under arrest and read the Georgia Implied Consent Statute. The officer will ask for a sample of your breath or blood. This is the state test. This is the test that will be used against you in court. If you refuse this test the officer will seek to suspend your license. This is another point where a driver is tempted to do as the officer asks because they don’t want to lose their license. However, you should also be aware that if you test above the legal limit of .08 your license will also be suspended. After you submit to the state test you have to right to seek and independent test at your own expense. The law requires that if the driver asks for an independent test, the officer has to take you to the nearest hospital and blood will be drawn at your expense and sent to the lab.

DUI outcomes are case specific, officer specific and jurisdiction specific. Don’t assume that because you blew over, you have to enter a plea of guilty. Instead, hire an experienced attorney who has handled hundreds of these cases to fight for you.

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