Intoxication, or lack thereof, is usually the most important issue in a DWI case. Since Georgia has a per se DWI law, prosecutors must prove the defendant’s BAC level was above the legal limit or the defendant had lost the normal use of his/her physical faculties.
Effective intoxication defenses are usually available. The Field Sobriety Tests, like the walking-a-straight-line test, are very subjective. Furthermore, chemical tests, especially the Breathalyzer, are not 100 percent accurate. Additionally, there are often defenses to the “driving” and “while” elements of a DWI case. Some of them are procedural. Others hinge on a lack of evidence at trial.
A Marietta criminal defense lawyer can evaluate your case and identify all possible defenses. So, a lawyer is well-positioned to successfully resolve your case. Frequently, lawyers can resolve cases without going to trial. This resolution could be a pretrial diversion program, a plea to a lesser-included offense, like reckless driving, or a complete dismissal of charges. Not all these options are available in all jurisdictions.
Defective Stop
Legally, officers must have reasonable suspicion to detain motorists. A separate set of rules apply at DWI roadblocks. These checkpoints are usually legal in Georgia.
Basically, reasonable suspicion is an evidence-based hunch. The “evidence” portion usually involves a traffic violation. The violation could be a moving infraction, like speeding, or a non-moving infraction, like an expired sticker. After officers pull over defendants, they usually look for physical symptoms of intoxication, such as bloodshot eyes and slow reflexes. At that point, officers usually administer the aforementioned Field Sobriety Tests.
Sometimes, officers do things out of order. For example, Officer Smith might see the Kelly pull out of a bar’s parking lot, or Kelly might act nervous when she sees the squad car in her rearview mirror. Then, Officer Smith follows Kelly for a few blocks until she driver 1mph over the limit, doesn’t turn on her signal early enough, or commits another ticky-tack violation. Then, Officer Smith almost immediately says “Step out of the car.” In other words, instead of evidence and a hunch, the officer gets a hunch and then looks for evidence.
Back in the day, most Cobb County jurors approved of these stops. After all, the officer didn’t technically do anything illegal. But today, police officer approval ratings are at an all-time low. So, many people don’t give officers the benefit of the doubt. Instead, they see such reverse stops as questionable, at best.
Reverse reasonable suspicion stops are especially common during saturation enforcement campaigns, like “Drive Sober or Get Pulled Over.” During these periods, officers are under pressure to make as many DWI arrests as possible. As a result, they often take shortcuts.
We mentioned DWI roadblocks above. Officers don’t need reasonable suspicion to detain motorists at checkpoints. However, roadblocks are only legal if they strictly adhere to some rules, such as:
- A supervisor must authorize the roadblock,
- The sponsoring agency must publicize the checkpoint in advance,
- Officers must deploy signs, use traffic cones, and otherwise make the roadblock as visible as possible,
- The detention formula must be neutral, such as every fourth or fifth vehicle, and
- Field offers cannot have any operational discretion.
Additionally, motorists have rights at checkpoints. They need not answer officers’ questions or even roll down their windows, as long as they comply with basic commands.
Public Place
DWI is only illegal if the motorist was in a public place. There’s a difference between a public place and a publicly accessible place. Basically, a public place is any road, parking area, or other surface that the government maintains. Parking lots usually are not public places. Streets in large apartment complexes or shopping malls usually are not public places either, even if these streets have stops signs and street names.
Public-private DWIs are in a grey area. For example, Officer Smith might see Kelly in a public place and follow her to a private place. Typically, police reports are rather vague about exact locations (e.g. 4800 block of Elm Street). The state has the burden of proof on each element of the offense, including this one. Therefore, prosecutors must establish, beyond a reasonable doubt, that the defendant was in a public place as opposed to a private place.
Incorrect County
Cobb County prosecutors only have jurisdiction over Cobb County offenses. Many parts of Cobb County straddle a county line. That’s also true of some major roads, like interstate highways. Things get really complicated if Officer Smith saw Kelly driving in Cobb County and she pulled over in Fulton County. Mostly because of the “driving” definition, which is discussed below, prosecutors must file such a case in Fulton County.
On a related note, charging instruments often contain technical errors. For example, the information (charging document in a misdemeanor) could cite the wrong portion of the DWI law. Or, there could be a variance between the pleadings and the proof. For example, the information could have the wrong defendant’s name.
Usually, these errors are not too difficult to correct. However, in most cases, prosecutors must start over from the beginning. Rather than go to all that trouble, they’re often willing to make very favorable deals.
Not Operating the Vehicle
Technically, “driving” is not an element of a DWI case. Instead, the defendant must only be operating the vehicle. Usually, people are operating vehicles if they have the keys in their possession and the car is drivable. The defendant’s condition is irrelevant. The defendant could be passed out behind the wheel and DWI charges could hold up in court, at least on this point.
Once again, the prosecutor has the burden of proof on this point. Frequently, there is no evidence as to the vehicle’s operability (e.g. did it have gas, did it have a flat tire, etc.).
The public place requirement applies here as well. Driveways are not public places. The curb directly in front of a house could be public or private property.
This element is also hard to prove in single-car DWI accident cases. By the time emergency responders arrive, the defendant has usually exited the vehicle. So, unless s/he admits she was driving, it’s almost impossible to “wheel” the defendant in these situations.
DWI cases often have multiple defenses. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Home and jail visits are available.
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