When people ask us this question, they’re really asking “How do I avoid the penalty for first-time DUI in Georgia?” These offenses carry substantial direct and indirect consequences.
The direct consequences of a first-time DUI in Georgia are relatively light, compared with the law in other states. A first-time offender must spend between twenty-four hours and 365 days in jail. The judge could probate the jail sentence, except for the twenty-four hour minimum. Common conditions of probation include an alcohol evaluation, community service, a victim impact panel, and an ignition interlock device. First-time offenders must also pay between a $300 and a $1,000 fine.
Collateral DUI consequences include employment and driving issues. To many potential bosses, a DUI conviction is proof of poor judgment skills. Quite frankly, that assessment is generally accurate. Additionally, many commercial insurers won’t cover employees with such criminal records. On a related note, a DUI conviction often triples auto insurance rates.
That’s the scary part. The not-as-scary part is that a Marietta criminal defense lawyer can undermine the evidence in a DUI and reduce or eliminate these consequences.
Challenging the Field Tests
The three approved Field Sobriety Tests, which we break down below, are important from a procedural and/or substantive perspective. The FSTs provide probable cause for a chemical sample request and/or evidence of intoxication at trial. In either case, cutting down the FSTs is almost like cutting a person down at the legs.
Horizontal Gaze Nystagmus
Generally, police officers administer the DUI eye test first. That’s probably because most defendants don’t realize the test is an intoxication test, so the compliance rate is very high.
Nystagmus is an involuntary pupil movement at certain viewing angles. During the test, subjects must follow a small moving object, like the tip of a pen, just by moving their eyes. They must keep their heads still. For DUI purposes, the HGN test has a mental component as well. Defendants must be able to follow officer instructions.
Under controlled conditions, this test is about 77 percent accurate. If Junior made a 77 on his math test, you probably wouldn’t punish him, but you probably wouldn’t reward him either. Additionally, roadside HGN tests don’t take place under carefully controlled laboratory conditions. Cars zoom by at high speeds and squad car strobe lights flash in the distance.
Due to these and other issues, many Cobb County judges only allow prosecutors to use HGN test results for limited purposes.
These next two tests more accurately measure intoxication. They’re both divided attention tests which measure physical coordination as well as mental sharpness.
The walk-and-turn, or the walking-a-straight-line test, may be the signature DUI field test. When an officer tells a defendant to walk a straight line, there’s no doubt about the nature of the stop. As the defendant walks a straight line heel to toe, the officer looks for several intoxication clues, such as:
- Beginning the test before the officer says “start,”
- Starting with the wrong foot,
- Failure to walk heel to toe,
- Using arms or hands for balance,
- Swaying or stumbling,
- Taking the incorrect number of steps, and
- Ending the test before the officer says “stop.”
Environmental factors affect the HGN test, and they also affect the WAT test. For example, walking an imaginary line is much harder than walking a parking lot stripe or another visible line. Additionally, unless the subject is wearing athletic shoes, it’s almost impossible to walk a straight line heel to toe, whether you’re drunk or sober.
Environmental factors plague this test as well. Most parking lots, sidewalks, and other such places aren’t level. And, most officers don’t care. Additionally, the OLS is usually the last test in the sequence. At this point, most defendants are physically and mentally fatigued. So, their performances suffer.
This weakness brings up a key point. The FSTs prove that the defendant is impaired. However, they don’t prove why the defendant was impaired. Fatigue is a very common reason. Most DUI stops are at night, and driving after twenty consecutive awake hours is like driving with a .08 BAC level. That figure is above the legal limit in Georgia.
The OLS test itself is rather straightforward. Subjects must stand on one leg for about fifteen seconds. Intoxication clues include elevating the wrong leg, holding it at the wrong angle, swaying, and using arms or hands for balance.
Challenging Chemical Tests
If a defendant provides a breath or blood sample, the conviction rate goes way up. It’s more difficult, but certainly not impossible, for a Marietta criminal defense lawyer to handle these cases.
Legally, a judge must issue a search warrant before an officer extracts a blood sample. Most officers don’t ask for warrants, so blood test cases are rare, except during high enforcement “no refusal” campaigns.
From a scientific standpoint, blood test results are difficult to successfully challenge. However, an independent, degreed professional who performs a re-test often obtains different results.
Furthermore, blood sample evidence often has procedural issues. Usually, officers take defendants to clinics for these tests. Then, the sample travels from the clinic to a lab, from a lab to an evidence room, from an evidence room to a, well, you get the idea. Any gap in the chain of custody could taint the evidence, making it unreliable in court.
Almost all chemical tests are Breathalyzer tests. No machine is 100 percent accurate, and that includes the Breathalyzer.
First, let’s take a step back and examine how a Breathalyzer works. Breathalyzer measure breath alcohol levels and use these figures to estimate blood alcohol levels.
Several things could affect the breath/blood estimate. Mouth alcohol levels are a good example. If defendants burp or vomit before they take the test, the elevated mouth alcohol level results in an elevated BAC estimate. Officers are supposed to watch defendants for at least fifteen minutes to ensure they don’t vomit or burp, but courts don’t strictly enforce this monitoring period. So, there’s usually no way to tell what happened prior to the test.
To drive home this flaw, and other flaws, with jurors, Marietta criminal defense lawyers often partner with degreed chemists. This individual has more authority than a police Breathalyzer technician.
DUI convictions don’t always follow DUI charges. For a free consultation with an experienced criminal defense attorney in Marietta, contact the Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.