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Friday, November 15, 2013

What are Standardized Field Sobriety Tests? (Part 1)

You may have watched the videos on YouTube, you may have heard about it from your friends, and some of you have been exposed to them personally; but, if you ever become the target of a DUI investigation, you will likely be exposed to what are called Standardized Field Sobriety Evaluations.  In this bog, we look at what these evaluations are.

 

The short story is: field sobriety evaluations were developed over a number of years and have been employed as tools utilized by law enforcement officers to determine if an individual is safe to operate a motor vehicle after consuming alcohol or drugs.  As lay people, we have seen the finger to nose evaluation, seen people recite the alphabet, watched people walk a line, and seen subjects stand on one leg.  There are many types of evaluations used by law enforcement in the normal discharge of their duties; however, there are only three evaluations that have been standardized by the Nation Highway Traffic Safety Administration (NHTSA) and verified to be accurate and effective when utilized properly.  Those three evaluations are:

 

  1. The Horizontal Gaze Nystagmus (HGN) Evaluation
  2. The Walk and Turn Evaluation
  3. The One Leg Stand Evaluation

 

Other evaluations are taught in Standardized Field Sobriety Courses; however, the above three are the only ones that have verifiable data suggesting their accuracy.  Their name tells you everything you need to know about them.  They are Standardized, meaning that they must be administrated in the exact same way every single time.  They are performed in the FIELD, meaning that elements regarding the environment may change which can have an impact on the evaluations and should be taken into consideration when formulating an opinion.  They aid and assist an officer in determining the SOBRIETY level of a subject.  Finally, they are EVALUATIONS, not tests; meaning they are not pass or fail, they are simply graded on a scale.  Obviously, depending on where you fall on that scale, an officer may use that information to opine that you are under the influence to the extent you are less safe to drive.

 

Each evaluation has its own separate components, distinct characteristics, as well as positive and negative aspects that lends to its effectiveness.  Officers are taught these evaluations over a period of four days, eight hours a day, for a total of 24 hours of training.  There is a classroom component and live participant component.  Both must be passed to receive a certification.

 

In the next five blogs, I will cover the following topics:

 

  1. The HGN Evaluation: How it works and how it doesn’t
  2. The Walk and Turn and One Leg Stand Evaluations: How they work and how they don’t
  3. Non-Standardized evaluations used by Standard Officers.
  4. If I am stopped and investigated for DUI, should I submit to Field Sobriety Evaluations?

 

If you have been stopped for DUI and submitted to any of the above evaluations, contact an attorney that has a practice focused on DUI Detection and Enforcement.  An office like ours can conduct a comprehensive review of your case to determine where mistakes were made. 

 

(770) 945-2320


Tuesday, November 12, 2013

Can I post bond if I have been arrested for new charges while on probation?

One of the biggest complaints I get from friends and family members of clients involve the issue of bond when their loved one is sitting in custody.  Under most circumstances, a defendant is innocent until proven guilty and will be allowed to remain out of custody on bond so long as they don’t pose certain risks that the Court believes are at issue. 

 

However, if a person is on probation at the time that they are arrested on new charges, there is an added complication.  Probation can actually put a “hold” on that person.  What that means is a person may actually be able to make bond in their new case; however, due to the hold that has been placed on the defendant by probation, they will not be released until they are taken before the Court in the jurisdiction that they are on probation and their revocation issues are dealt with. 

 

Often, probation officers want to know if the defendant is guilty of the new allegations; however, guilt on the new charges only has to be proven by a preponderance of the evidence or by conviction in the new case.  When deciding how to proceed, probation can do one of three things.  First, they can have a full hearing presenting evidence of the new charges and the defendant’s culpability regarding those charges.  The Court then uses the preponderance standard in determining whether the defendant/probationer committed the act as alleged.  Second, the probation department can hold the defendant in custody for a period of time to see if the new charges are disposed of and use that disposition as a measure of what to do with their revocation.  Third, under rare circumstances, the probation department or Judge will agree to a probation bond and will allow the defendant to remain out of custody until they are brought back before them for a revocation.

 

If you have a loved one in custody and they are being held by probation without bond, call our office to see what may be done to expedite his/her release.


Wednesday, November 6, 2013

Charged with a drug offense?

Being charged with a drug offense involves many different types of repercussions that most people are not aware of.  If you are charged with a drug offense, that means you are charged with a Violation of the Georgia Controlled Substances Act (VGCSA).  Being charged with a VGCSA means that you may be subject to jail time, base fines that double after surcharges, and substance abuse treatment. [Much harsher punishments are required if you are charged with something more than simple possession…like possession with intent or trafficking] However, most people don’t know that if you are convicted of a drug offense, there are two issues that can have a tremendous impact on your life:

 

First, your license will likely be suspended: Most people are not aware that they will lose their license and cannot get a permit to drive for work, school or medical related purposes.  You will suffer what we call a “hard” suspension and will not be able to get your license back until the required time has passed and you have taken a Drug Risk Reduction Course. 

 

Second, you will likely not be eligible for any program that is government supported:  If you are currently receiving student loans, the HOPE Grant, or other government backed financial aid, the government reserves the right to decline you ability to receive those funds.  Further, there is also a likelihood that you will have a hard time qualifying for a loan if you plan on using monies that are obtained through government programs like FHA.  The reason for this is clear; the government assumes that if you have money to buy drugs, you don’t need their assistance to create a better quality of life for yourself. 

 

If you are charged with a drug offense, don’t try to “do it yourself.”  Call our office immediately so that we can help ensure that the effect this has on your life is managed.


Friday, November 1, 2013

What if I am stopped for a DUI?

Being an attorney that has a practice heavily focused on DUI defense, I am often asked in social settings: “What should I do if I am stopped and investigated for DUI.”

 

The answers people get to these questions from defense attorneys vary greatly.  My first response when I am asked this always begins with, “First, you shouldn’t be drinking and driving.”  However, the reality is, there is no law in the State of Georgia that makes it illegal to drink and drive.  It is only illegal to drink and drive if, due to the alcohol you consumed, you are “less safe” to operate your motor vehicle. 

 

Therefore, when I get asked the question posed above, I don’t think it is prudent to answer the question with an advisory opinion, it is better that people understand the repercussions of the decisions that they have available to them on the side of the road and make a decision given their threshold for potential ramifications.

 

The three decisions that must be made if you are the subject of a DUI investigation are:

 

  1. Take field sobriety tests or not.
  2. Take the State requested breath/blood test or not.
  3. Ask for an independent test or not.

 

Standardized field sobriety evaluations (more info about these evaluations will be discussed in a future blog) are tools that an officer can use to help him/her determine if the subject of their investigation is under the influence of alcohol or drugs.  Many things can affect the results obtained on these evaluations (environmental, personal, officer proficiency, and subjective interpretation).  If an individual submits to these evaluations, the officer will use all the factors of the encounter in making an arrest decision, including the field sobriety evaluations.  If these fields are refused by the subject, the officer will be forced to make his/her determination off the limited contact that has occurred, including but not limited to, any physical manifestations of impairment exhibited by the driver. How much information you feel comfortable giving the officer is what dictates this decision.

 

Once you are under arrest, you will be asked to submit to a test of your blood, breath, urine, or other bodily substance.  If you refuse this test, the officer can file paperwork to start the suspension of your license prior to you even going to court.  If you take the test, that test will be offered into evidence against you in court. 

 

Whether you have a right to ask for an independent test is determined by whether you took the State’s test.  You have no right to your own test if you have refused to take the State requested test.  However, if you did take the State’s test, there is no downside to asking for your own independent test other than those results coming back consistent with the State’s test.  If that happens it leaves less arguments to be made that the State’s test must be wrong.

 

Ultimately, I tell people that whatever decision you make at the time of your encounter; that is the right decision.  It is very hard to advise people as to what they should do.  Only you know how much you had to drink, only you know how coordinated you are, only you know if there are other factors that would impact your ability to perform tests, and every officer has different proficiency levels with DUI detection and enforcement. 

 

Therefore, I say again, it is best not to drink and drive.  However, if you do/did, and you are facing a DUI charge, contact our office immediately so that we can assist you in this difficult time. 


Thursday, October 31, 2013

How a DUI can affect your license/privilege to drive

            As an attorney who specializes in the practice of DUI Defense, I often get the question: “What happens to my driver’s license if I am convicted of a DUI?”  The reality is there is no quick and fast answer to that question.  Many factors come into play including but not limited to:

1)     Age of the offender

2)     Number of prior offenses within a specified time period

3)     Whether a test was taken or refused

4)     If taken, what the results of that test were

5)     The specific code section under which you have been charged

 

In this article, I will attempt to shed some light on the license implications of having a DUI on your record, both before and after your case goes to court.  By no means is this article intended to be exhaustive of all potential driving privilege ramifications; however, I will provide a good guide for most drivers and some attorneys.

 

Before Court

 

            The first question I will ask a person charged with a DUI whom calls into the office is, “Do you still have your driver’s license?”  In most circumstances, if a person charged with a DUI does not have their license, the officer or deputy has taken it and given the driver a DPS 1205 form.  A DPS 1205 form looks like the one to the right.  It may be white or yellow, depending on the department.

 

A person can be issued this form for four distinct reasons:

1)     The driver refused to submit to the state mandated test by the officer.

2)     The driver took a breath test and registered .08 grams or higher on the Intoxilizer 5000.

3)     The driver was under the age of 21, took a breath test, and registered .02 grams or higher on the Intoxilizer 5000.

4)     The driver was operating a commercial vehicle, took a breath test, and registered .04 grams or higher on the Intoxilizer 5000.

 

It is within the officer’s discretion to seize your license and issue you a DPS 1205 form if you fall within one of the categories listed above.  Therefore, not all people who register over a .08, for example, will be given one of these forms. 

           

If you have been given one of these forms, you have 10 business days from your date of arrest to file an appeal with the Administrative License Suspension Hearing Unit.  An attorney can help you draft this letter and send the appropriate fees.  At our office, this is included in your representation.  If you fail to file a request for an appeal within the designated time period, 30 days from your date of arrest, your license may be suspended for a period of one year.  The length of that suspension and whether you can get a “work/hardship” permit depends on which of the four categories you fell into.  You would need to contact our office if you feel that your license has been suspended due to a failure to file a request for a hearing.  We may be able to help you get back on the road.

 

After Court

 

            If you plead guilty or are convicted of DUI, your age and the code section under which you were charged, among other things, has an impact on the length of your suspension and whether a permit is available.  The chart below is a good guide for all the subsections of the DUI statute; O.C.G.A. § 40-6-391:

 

 

Code Section O.C.G.A §

 

 

Length of Suspension

 

Permit?

40-6-391 (a) (1)

“Less Safe” – No Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (a) (1)

“Less Safe” – Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)

No – pursuant to O.C.G.A. § 404-5-67.2 which explicitly excludes an offender from a permit under O.C.G.A. § 40-5-64

40-5-391 (a) (2)

Drugs “Less Safe” or “Per Se”

  • 180 day suspension pursuant to O.C.G.A. § 40-5-75 (a) (1)

No – pursuant to O.C.G.A. § 40-5-75 (e)

40-6-391 (a) (3)

Intoxicants “Less Safe” – No Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (a) (3)

Intoxicants “Less Safe” –Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)

No – pursuant to O.C.G.A. § 404-5-67.2 which explicitly excludes an offender from a permit under O.C.G.A. § 40-5-64

40-5-391 (a) (4)

Drugs and Alcohol Combined

  • 180 day suspension pursuant to O.C.G.A. § 40-5-75 (a) (1)

No – pursuant to O.C.G.A. § 40-5-75 (e)

40-6-391 (a) (5) [>.08]

Alcohol “Per Se”

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (a) (6)

Marijuana****

  • Found Unconstitutional

N/A

40-6-391 (i)

Commercial Vehicle

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS; however, may possibly be a lifetime disqualification of the individuals CDL

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (k) (1)

Under 21

  • If alcohol concentration was .08 grams or more, 12 month suspension in accordance with O.C.G.A. § 40-5-57.1 (b) (2) (B) (ii)
  • If alcohol concentration was .079 grams or less, 6 month suspension in accordance with O.C.G.A. § 40-5-57 (b) (1) (B) (i)

No – pursuant to O.C.G.A. § 40-5-57.1 (b) (2) (B)

****DUI Marijuana cases are being prosecuted under O.C.G.A. § 40-6-391 (a) (2) which is a 6 month suspension with no permit available.

 

            Finally, the number of convictions an individual has within a 5 year period has an impact on the length of suspension and whether a permit is available.  Many factors come into play with regards to this; therefore, you should contact our office if this is not your first offense.  Generally, if you are convicted of multiple offenses within a five year period, you will lose your license for a minimum period of one year and you will not be allowed a permit to drive for work or other approved purposes.  A new exception now exists for certain individuals.  This is something that we can discuss with you once we have all the facts.  

 

            It should also be stressed that licensing implications, although difficult to decipher through the Georgia Code, are not the only implications of a DUI.  Jail time, loss of job, effects on insurance, and other collateral consequences are just as impactful and very likely.  It is extremely important you contact an attorney if you have been charged with a DUI offense.  Make sure that the person you hire is experience in these types of cases and knows the law. 

 

If you are currently facing a DUI charge in the State of Georgia, do not hesitate to contact our office.


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Carter Pilgrim Stroud, Attorneys at Law located in Suwanee, GA serves Cumming, Buford, Lawrenceville, Braselton, Alpharetta, Johns Creek, Duluth, Norcross, Hoschton, Jefferson, Commerce, Dawsonville, Gainesville, and other surrounding areas.



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