Recently, we have received several calls from people who were almost literally asleep at the wheel, and before they knew what was happening, they were arrested for DUI. Officers are very aggressive in this area, and their aggression is increasing. The DUI arrest rate in the Peachtree State is one-third higher today than it was in 2014.
All these cases are different, but they follow the same general pattern. Frequently, the defendant had a bit too much to drink at a bar or restaurant. So, before driving home, s/he takes a quick car nap. Someone sees the defendant in the car and, perhaps out of concern or perhaps to cause trouble, the witness calls the police. At that point, an arrest is practically inevitable. That’s especially true since groggy defendants usually do poorly on field sobriety tests.
DUI has severe consequences in criminal court and in other areas as well, mostly regarding higher auto insurance rates. If a Marietta criminal defense lawyer identifies a possible defense, it is much easier to successfully resolve these cases and reduce or eliminate these harsh consequences.
Independent information leads to a number of arrests. Watch an episode of Unsolved Mysteries and you’ll find out for yourself. However, from a legal perspective, the tip must be credible.
Paid informer tips are presumptively unreliable. Many people would say almost anything for love or money. And, paid informers always receive one or the other, or possibly both. The love is usually leniency in a related criminal proceeding. The money could be thousands of dollars.
General information tips are not much better. If the caller told police there was a “suspicious white car in a fast-food parking lot,” that description could fit almost any vehicle. The fact that the information was accurate is irrelevant. Prosecutors cannot work backwards. Tips stand or fall on their own merits.
To hold up in court, the tipster must have said something like “white car in the parking lot of Wendy’s at Fourth Street and D.”
Frequently, police reports contain only passing references to third-party tips. So, to determine if the tip was reliable, Marietta criminal defense attorneys usually review 911 call recordings and other such evidence.
Police officers must have probable cause to arrest suspects. In most DUIs, the field sobriety tests provide this evidence. Frequently in remote arrest situations, the DUI field test portion does not go beyond the Horizontal Gaze Nystagmus test. The DUI eye test is one of the three approved field sobriety tests, and it’s arguably the weakest one of the bunch.
Essentially, nystagmus is involuntary pupil movements at certain viewing angles. If a subject shows more than three such movements, the subject probably has nystagmus.
Alcohol is one cause of nystagmus, but it is not the only cause. In fact, it is not even the leading cause. That distinction goes to a childhood brain injury.
Nystagmus, or lazy eye, is surprisingly common. Many people have a lazy eye, but the symptoms are so mild they do not know it. So, if an officer sees indications of nystagmus, there is a good change it’s due to a pre-existing condition.
Additionally, the HGN test is most accurate under controlled conditions in a lab or doctor’s office. Roadside HGN tests are on the other end of the scale. Cars whiz by at high speeds. Additionally, the flashing squad car lights in the background often cause a condition called flicker vertigo. This is the same condition that triggers epileptic seizures in some people.
Officers usually have subjects perform additional tests as well, such as the one-leg stand and walk and turn. Frequently, however, defendants refuse to perform these tests once they figure out what is going on. Therefore, when these cases go to court, the state must make do with the shaky roadside HGN test. This one test might be enough to establish probable cause, but there is no guarantee.
Officers sometimes administer a portable Breathalyzer test. If traffic is heavy, they usually do not. They want to leave the scene as quickly as possible. Additionally, not all officers are qualified to use this gadget.
When they tale the stand, police Breathalyzer techs sing the praises of these devices. Once jurors learn that a modern Breathalyzer is basically a newfangled 1930s Drunk-O-Meter, they often question the tech’s credibility.
That mindset makes jurors more likely to appreciate specific scientific flaws, such as unabsorbed alcohol detection and excessive mouth alcohol levels.
Many callers are shocked they were arrested for DUI. I wasn’t driving the car, they reason, so how could I be facing Driving Under the Influence charges? That seems logical. However, in Georgia, driving is tantamount to operating. DUI charges normally hold up in court even if the defendant was passed out behind the wheel if:
- The defendant had the keys, and
- The vehicle was drivable.
Normally, officers see keys in the ignition, or the defendant says s/he has the keys. However, there is normally little or no evidence as to the car’s condition. And, the state has the burden of proof on this point. So, this defense is often effective. If there is insufficient evidence on one point, the defendant is not guilty as a matter of law.
DUI is only illegal if the defendant was driving or operating a vehicle in a public place while intoxicated. Restaurant parking lots are private property. They are publicly accessible, but they are not public places. The same thing applies to apartment complex and shopping mall parking lots. Frequently, these parking areas feature named streets and traffic control devices. However, they are still not public places.
This defense, if available, is often a “silver bullet” defense. The public/private place distinction is not subjective at all. It is one or the other.
DUI charges are quite serious, but a number of defenses are available. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Home and jail visits are available.