Breaking Down a DUI-Drug Case in Cobb County

Marijuana and other illicit drugs are cheaper and easier to obtain than alcohol in most parts of Cobb County. Therefore, almost half of drivers involved in fatal accidents test positive for drugs. Marijuana is, by far, the leading culprit. Less than 5 percent of these drivers were under the influence of prescription painkillers or another non-marijuana drug.

DUI-alcohol and DUI-drug cases have the same legal elements. However, no Breathalyzer marijuana test is widely available, at least not yet. Therefore, most DUI-drug cases hinge on circumstantial evidence.

The conviction rate in circumstantial evidence DUIs is much lower than the conviction rate in chemical test DUIs. Therefore, a Marietta criminal defense lawyer has an excellent chance to successfully resolve a DUI-drug case. Prosecutors often offer good deals, like a reduction to reckless driving, in these cases. DUI convictions are much worse than reckless driving convictions, especially in terms of collateral effects, like auto insurance rates.

Initial Stop

In most cases, officers pull over defendants for unrelated traffic violations. Informer tip stops and DUI roadblock stops come up as well.

The aforementioned traffic violation could be a moving violation, like speeding, or a non-moving violation, such as expired plates. Frequently, police officers pull over motorists for very obscure violations, such as:

• Obstructed View: Air fresheners, religious objects, and other items that dangle from the rear-view mirror are technically illegal in Georgia in most other states, as they “obstruct” the driver’s forward view. Too many passengers in a car or items that obstruct the driver’s rear view, no matter how slightly, are also illegal.
• License Plate Violations: Many people display their license plates in their rear windows. This display is a separate violation, because the plate isn’t properly secured. Decorative license plate frames or lights are also illegal, if they obscure any information on the license plate.
• Passing Violations: Georgia law requires motorists to stop before they pull out of a Walmart parking lot or another private driveway, even if there’s no oncoming traffic. Pretty much no one does that. It’s also illegal to pass another vehicle within fifty feet of an intersection.

According to a recent Supreme Court case, Heinen vs. North Carolinian, if the officer reasonably believed the driver violated a traffic law, the stop is legal. If Officer Bill thought a toll tag, which is legal to display in Georgia, obstructed John’s view, the stop was legal.

Officers don’t have as much leeway in roadblock or informer tip stops. DUI roadblocks must meet rigid legal requirements. A reasonable belief of compliance won’t cut it. An informer’s tip must be reliable. There’s a difference between reliable and accurate. If my daughter says her room is clean, her assertion is not reliable, even if it is accurate.

DUI Investigation

A DUI investigation in a drug impairment case usually has two parts, the field sobriety tests and a DRE’s confirmation.

If an officer sees some evidence of drug impairment, such as bloodshot eyes or a jittery disposition, the officer may ask the defendant to perform field sobriety tests. The National Highway Traffic Safety Administration has only approved three tests for law enforcement use, which are:

• Horizontal Gaze Nystagmus: Under controlled laboratory conditions, the DUI eye test predicts intoxication about 80 percent of the time. But officers don’t conduct roadside HGN tests under controlled conditions. For example, flashing squad car strobe lights cause flicker vertigo, or visual disorientation.
• One Leg Stand: What is, in many ways, the signature DUI test doesn’t establish a baseline. Some people have poor balance or physical disabilities that make it difficult or impossible to stand on one leg. Additionally, officers testify that a technical violation, like raising the leg at the wrong angle, means the defendant “failed” the test.
• Walk and Turn: These same concerns affect the walk-and-turn test. If the defendant was wearing flip-flops, dress shoes, cowboy boots, or anything other than athletic shoes, the defendant probably couldn’t pass this test, drunk or sober.

Some officers bolster this evidence with illegal field tests. The Springfield cops added two illegal tests, reciting the ABCs and the finger-to-nose test, to the one leg stand. Sometimes, a Marietta criminal defense lawyer asks a judge to exclude such test results. Other times, a lawyer allows prosecutors to use these tests, so it appears that the officers railroaded the defendant.

After the field sobriety tests, which the defendant may refuse to perform under the Fifth Amendment, officers usually summon a drug recognition “expert” to the scene. DREs consider evidence, like physical symptoms and FST results, and determine if the driver was under the influence of drugs.

These officers barely qualify as experts. Usually, they learned everything they know at a brief, police-sponsored seminar. Furthermore, a DRE’s evaluation is a self-fulfilling prophecy. Officers ask DREs to confirm DUI-drug arrests, so in most cases, that’s what they do.

“I Smelled Marijuana”

Note we didn’t include this oft-repeated line in the initial stop or DUI investigation sections. Over the years, untold numbers of officers have used this line, which is almost impossible to prove or disprove, to justify stops and searches.

Marijuana is still mostly illegal in Georgia. A few medical marijuana exceptions might apply. But marijuana is physically indistinguishable from hemp, which is a legal substance in Georgia. Since these two substances look and smell alike, if an officer smells marijuana, that substance might or might not be legal.

The Supreme Court has yet to rule on this issue. Currently, many Cobb County judges don’t accept an odor of marijuana as reasonable suspicion, unless the state produces some corroborating evidence.

DUI-drug charges often don’t hold up in court. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. The sooner you reach out to us, the sooner we start working for you.