The difference between a strong DUI case and a weak case could be over $20,000. That’s the average cost of a Georgia DUI. Most of these expenses are indirect costs, such as higher auto insurance rates. Convicted drunk drivers must buy-high risk insurance for at least three years. An SR-22 could cost two or three times as much as a standard auto insurance policy.
This figure doesn’t account for noneconomic costs. Many potential employers believe that people with DUIs make bad decisions. Truthfully, this assessment is usually right. Furthermore, many landlords won’t rent to people with recent criminal convictions, even for a non-violent offense like DUI. Finally, these convictions could have immigration consequences.
If a DUI case shows any signs of weakness, a Marietta criminal defense attorney can usually resolve it successfully. Some case weaknesses are immediately apparent. Some take a little more digging to expose. Either way, only an experienced attorney knows how to spot these weaknesses and knows how to exploit them in court.
Not Driving in a Public Place
Most DUI stops are clearly in public places. Frequently, officers zero in on motorists who leave bars late at night, follow these drivers until they commit ticky-tac traffic violations, pull them over, and initiate DUI investigations. These stops may or may not be legal. More on that below.
A few DUI stops are clearly in private places. Places like large shopping malls or large apartment complexes are private places. This designation applies even if the streets have names and the area is open to the public (i.e. there is no gate).
Some DUI stops are in a gray area. A Marietta criminal defense attorney thrives on gray areas in the law and in the facts.
For example, many officers detain motorists in exclusive subdivisions. These locations are technically public property, but non-property owners usually aren’t allowed in the area. That’s especially true if there is a “no soliciting” banner at the entrance/exit to this subdivision. This area might or might not be a public place.
The same principles apply if the defendant was parked in front of his/her house. Once again, this area might or might not be public property. More on these stops below as well.
Not Driving at All
Curiously, “driving” is not an element of driving under the influence. Instead, prosecutors must only prove that the defendant was in control of the vehicle. Usually, control means the defendant had the keys and the car was in operable condition. The theory is that these defendants could start their cars and drive away at any time.
According to an old saying, a man’s home is his castle. But sometimes, a man’s car is his castle. Many women and men retreat to their cars to make private phone calls or enjoy a belt (or two or three) of scotch.
Frequently, these defendants either have the keys in their pockets or purses or the keys are in the ignition. However, that’s not always the case. If there’s nothing in the police report about the keys in the ignition and the keys weren’t among the defendant’s personal effects, this element of operation is very difficult to prove in court.
Operability is hard to prove as well. Basically, vehicles are operable if they have gas, the tires are inflated, and they are in reasonably solid mechanical shape. Frequently, there’s no evidence on these points. Very few officers bother to look at the gas gauge or note the tire pressure. Sometimes, jurors can assume the vehicle was in operational condition. But this presumption only applies in some cases.
Over-Reliance on a DRE
Alcohol is a factor in about 25 percent of the fatal car crashes in Georgia. Drug impairment may be almost twice that high. There is no easy chemical test for drug use. Therefore, law enforcement agencies often use Drug Recognition Experts to prove these cases in court.
The “expert” designation is very misleading. Usually, a DRE is an ordinary officer who attended a couple of police-sponsored seminars and suddenly became an “expert.” Obtaining this level of expertise is not that easy.
Moreover, DRE use is a self-fulfilling prophecy. An officer calls a DRE to the scene to confirm that the defendant is stoned. Nine times out of ten, that’s what the DRE concludes.
Usually, DREs rely on physical symptoms, like bloodshot eyes, field sobriety test performance, and circumstantial evidence at the scene, like an odor of marijuana, to reach their conclusions. This evidence could be flawed. The FSTs are a good example. If the DRE saw the defendant stumble on the walk and turn, that’s one thing. If an officer told the DRE the defendant stumbled during the walk and turn, that testimony may be inadmissible hearsay.
Frequently, during cross-examination, a Marietta criminal defense attorney asks a DRE how often s/he concludes a defendant was impaired. If the DRE says about 90 percent of the defendants s/he evaluates are impaired, the DRE loses credibility with skeptical jurors.
Chemical Test Issues
Like all other scientific tests, Breathalyzer test results aren’t 100 percent perfect. Mouth alcohol is a good example.
Many police officers are rather sloppy when it comes to monitoring defendants before they take these tests. That’s usually because the law in this area is very lax, and officers think they can get away with it. If the defendant burped or belched before the test, alcohol particles from the stomach flood into the mouth and skew the test results.
A Marietta criminal defense attorney often partners with a degreed chemist to drive home this flaw, and other flaws, with jurors.
Civil Rights Violations
We mentioned illegal police stops above. Now, let’s look at this issue in a little more detail. Under federal law, officers must have reasonable suspicion to detain motorists. Reasonable suspicion is basically an evidence-based hunch. Officers may use their experience to interpret the evidence.
Assume Officer Sally sees Julie leave a bar late one night. It’s not illegal to leave a bar. She follows Julie for a few blocks and notices that an air freshener is dangling from Julie’s rear view mirror. That’s technically illegal. Officer Sally pulls over Julie, suspects she’s been drinking, and initiates a DUI investigation.
At first contact, there was no evidence of wrongdoing. There was only Officer Sally’s hunch. Granted, she found evidence later. But the rule requires evidence and a hunch at the time of the stop, not a hunch and evidence later.
Many DUIs in Cobb County are weak cases. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. After hours, home, and jail visits are available.
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