Under Georgia law, anyone who drives within Georgia's borders is held to consent to a State (police) administered chemical test of his breath, blood, or urine for purposes of determining his blood alcohol content.   This consent is called "implied" consent because it applies automatically when you operate a motor vehicle in Georgia.

You can refuse any and all breath, blood or urine tests but by refusing a number of bad things happen.  First, your driver's license will be suspended for one year.   Secondly the fact of your refusal may be used by the State prosecutor as evidence of your guilt.

The DUIattorney.com web site has published the text of the "implied consent warning" that an arresting law enforcement officer in Georgia must read to all DUI suspects.  There are different warnings for suspects under the age of 21, other adults and holders of commercial drivers' licenses.

Here is the text of the warning issued to adult drivers over the age of 21:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law? More on What is "Implied Consent" Under Georgia Law?

Beginning July 1, 2009, penalties for DUI's in Georgia have been made more severe:

• Anyone charged with a 4th DUI within a 10 year period will be subject to a felony charge that can result in a prison sentence of one to five years
• Anyone charged with a 3rd DUI within a 10 year period will be charged with aggrevated misdemeanor charges that can result in prison time of up to 1 year and fines higher than a 1st or 2nd offender would pay.
• Convicted or guilty plea first time offenders must attend an alcohol abuse and treatment program in addition to a safe driving school

These enhanced penalties further dictate that anyone charged with DUI should seek legal counsel.  The days when DUI defendants could please "nolo" and go about their business are over.

A Georgia DUI charge does not focus solely on your blood alcohol level.  In fact, there are two ways that a prosecutor can argue for a DUI conviction:

I. Blood alcohol above the legal limit - for drivers over the age of 21, a blood alcohol level of .08 or higher is considered a "per se" DUI violation.  This means that a judge or jury can convict you of DUI based on your blood alcohol level only.

For drivers under age 21, a blood alcohol level of .02 or higher will support a DUI conviction

II. Less Safe Driver - if you are over age 21, and have less than .08 blood alcohol in your blood but you are a "less safe" driver, you can be convicted of DUI.

Do not be surprised if the prosecutor argues both theories of DUI.  Blood alcohol level numbers can be challenged based on the equipment used, the measuring technique or based on the weight of the driver, but "less safe" prosecutions often turn on the testimony of the arresting officer.

The Georgia DUI law is codified at O.C.G.A. Title 40, Chapter 6, section 391.

One of my favorite blogs, the Lifehacker blog, recently published an article entitled "The Most Ticketed Cars on the Road."  Not surprisingly, the Hummer H2 and H3 top the list, getting ticketed almost  500% more than average.  Other cars that seem to attract the police include:

• Scion XB
• Subaru Outback
• Audi A4
• Toyota Matrix

Which cars draw the least attention from the police?  The Jaguar XJ sedan and the Chevrolet Suburban draw the least amount of tickets.  Other low profile vehicles include the Buick Park Avenue, Oldsmobile Silhouette and GMC Sierra 1500 pickup.

The Lifehacker post draws on data from ISO Quality Planning, a consulting company that helps insurance companies evaluate risk for purposes of deciding how much to charge policyholders.

The study does not explain why a particular vehicle ends up on one list or the other.  What do you think?

I have written previously on this blog about on-going litigation between DUI lawyers in various states and the manufacturer of the Intoxilyzer 5000 and other alcohol breath sensor equipment.  At issue is the source code of these machines, which DUI defense counsel is calibrated to measure an average sized man.    The machines take no account of different sized individuals or possible differences in alcohol metabolism in females.

The manufacturer does not want to release its source code, claiming that this information is a valuable business trade secret.  Defense lawyers argue that if this equipment is used to convict their clients then they have a right to see the source code.

Georgia trial courts have not given us a definitive answer.   Georgia DUI lawyer George Creal cites a recent case on his blog - Holowiak v. State, where the Court of Appeals sidestepped the issue but refused to order CMI (the manufacturer of the Intoxilyzer 5000) to reveal its source code.

In any case, you may be wondering how these machines work in a general sense.  The well known web site "How Stuff Works" has a easily understandable and thorough explanation entitled How Breathalyzers Work.   If you and your lawyer plan to challenge a DUI charge by attacking the technology of the equipment used to determine blood alcohol levels, the How Stuff Works article is a good starting point for your research.

In October of this year, I wrote a blog post about the Troy Anthony Davis capital murder case.  At that time, Mr. Davis was scheduled to die, although his lawyers were actively seeking a stay in his execution.

The 11th Circuit Court of Appeals did, in fact, stay Mr. Davis' execution, and on Tuesday, December 9, 2008, a three judge panel of the 11th Circuit heard arguments as to whether Mr. Davis and his attorneys have presented enough evidence to continue the stay of execution and to permit defense attorneys to pursue different theories of appeal.

Note that the 11th Circuit panel was not deciding guilt or innocence or even whether a new trial was warranted.  They were considering a very narrow procedural matter - was there enough evidence to continue to the stay of execution so that Mr. Davis would have time to present an argument for a new trial.

A decision has not yet been issued by the 3 judge panel and there is no indication as to when it may be released.  In the meantime, Mr. Davis, his family and supporters will continue to hope for redress, and Officer MacPhail's relatives will continue their vigil for closure.

This past Halloween weekend, Houston law enforcement agencies began using a new combination mobile DUI-testing lab and holding cell. Better know as the “Batmobile,” this Mobile Command Station is outfitted with blood and breath analysis equipment, as well as means for arresting officers to electronically process any related paperwork.

“This will enable us to take the legal process to the drunken drivers, instead of having the drunks brought to us,” said Warren Diepraam, chief of the Harris County DA’s Vehicular Crimes Section.

“Benefits extend beyond removing dangerous drivers from the streets. Speeding up the process and reducing suspect transit times results in better, more readily available evidence. It can quickly exonerate the innocent, or secure convictions against intoxicated motorists,” continued Diepraam in a press release issued October 30th.

The heavily modified transporter was paid for by the District Attorney’s office using Asset Forfeiture funds, and is manned by the Harris County Sheriff’s Department. Other local enforcement agencies will also however be able to use the station for testing and processing purposes.

With only a single unit currently in use, Houston motorists stopped for suspicion of Driving Under the Influence are unlikely to find themselves inside the “Batmobile” just yet. The choice of Halloween weekend does however send a strong psychological message to area residents. And if these initial tests are successful, I would expect to see more of these vehicles on the streets very soon.

Neither the Georgia State Patrol nor any local police departments have announced that anything like the "Batmobile" is planned for Georgia, but you can be sure that Georgia authorities will be keeping a close eye on what their colleagues in Texas are doing.

The criminal law blogosphere has been discussing the case of Troy Anthony Davis - a Georgia man who was convicted of murdering a Savannah police officer in 1989.  Mr. Davis was convicted of this crime based on testimony from multiple eyewitnesses and was sentenced to death.  Just go to Technorati.com and enter "Troy Anthony Davis."

Recently, Mr. Davis' attorneys filed an appeal to both the Georgia Supreme Court as well as the United States Supreme Court arguing that the conviction should be overturned because several of the eyewitnesses have "recanted" their testimony.  The attorneys argue that to execute a defendant with a "strong claim of innocence" would be a violation of the Bill of Rights prohibition against "cruel and unusual" punishment.

My colleague, blogger Paul Kennedy of Houston, weighs in on this controversy with a blog post entitled "Its not Cruel and Unusual to Execute an Innocent Man."  Paul argues:

that just because a citizen was given a fair trial doesn't mean that the verdict is correct?  When it comes to deciding whether or not a fellow citizen's life is to be taken away by the state, the very least we can do is make certain that the state is killing the right person.

On the other hand, Atlanta Journal-Constitution editorial writer Jim Wooten says this:

Before you buy-in to the Troy Anthony Davis PR campaign, go to the source. Read for yourself the Georgia Supreme Court decision handed down March 17 that dealt with quality of the alleged recantations in the murder of Savannah police officer Mark Allen MacPhail. Cut out the spin. Read Justice Harold Melton’s majority opinion.

There have been many studies which demonstrate that eyewitness testimony can sometimes be seriously flawed.  Often our memories of what we genuinely believed that we saw are simply incorrect.  On the other hand, eyewitness testimony has long been accepted by our courts as an acceptable basis for finding criminal liability.

Like many of my fellow bloggers, I am concerned with the prospect of putting an innocent man to death.  On the other hand, I think that the family of the slain Savannah police officer does deserve justice.

I encourage you to take a look at the Georgia Supreme Court opinion.  Here are some of the facts that are not in dispute:

In the early morning hours of August 19, 1989, Troy Davis was at a pool hall with his friends Sylvester Coles and Darrell Collins.  Nearby a homeless man named Larry Young was exiting a convenience store with a six pack of beer.  Coles approached Young to ask for a beer but Young refused the request.  Coles then followed Young, cursing and screaming at him.  Davis and Coles circled around a nearby building and together with Coles, surrounded Young.  Davis then pistol whipped Young, severely injuring him.  An off duty police officer, Mark MacPhail observed the altercation and approached Davis and Coles.  Officer MacPhail was subseqently shot and died on the scene.  Davis says that Cole was the triggerm, and Coles points the finger at Davis.

Earlier that night a man named Michael Cooper was shot at a party.  Several eyewitnesses named Troy Davis as the shooter.  Bullets removed from Cooper's body during treatment matched bullets removed from Officer MacPhail's body.

During the investigation, several witnesses were interviewed by the police and stated that Davis had confessed the murder of Officer MacPhail.   Larry Young identified Davis as the person who struck him on the head with a pistol.  Darrell Collins, who had run from the immediate area of the Young-Davis/Coles altercation, testified that the person who struck MacPhail also shot him.

Subsequent to the trial that resulted in Davis' conviction, several of the witnesses noted above changed their stories.

Davis was convicted of murder, not for being a really bad person.  A jury heard the evidence presented, including the witness testimony and concluded that Davis was the murderer.

I encourage you to read the heartfelt opinions of fellow bloggers who sincerely oppose the death penalty and who stand for the principle that the state needs a great deal of certainty before taking a convicted criminal's life.   You will note that few, if any, of these bloggers report the undisputed factual background of this case.  Does it matter?  Should the Georgia courts ordered a new trial?  Does the recitation of facts shapre your opinion?  What do you think?

Very few DUI cases find their way to the United States Supreme Court.  Generally DUI cases are a matter of state law and over the years, the Supreme Court has been fairly deferential to the arguments put forth by lawyers representing the government and police departments.  Obviously everyone supports the goal of removing impaired drivers from the road, and groups like MADD have done a good job in keeping political pressure on lawmakers to make DUI punishments harsher.

Nevertheless, the law does not treat every DUI defendant the same way because some DUI offenders are more culpable than others.  Further, the law requires that the prosecutor prove his case.  It is not enough that the police officer "thought" that an individual was under the influence - there needs to be proof, which can include blood test, breath tests and other types of evidence.

Recently, the Supreme Court agreed to hear the case of Begay v. United States, a decision which was released in April, 2008.  In the Begay case, the defendant (Begay) was arrested in New Mexico for unlawfully possessing a firearm, a violation of federal law.  Mr. Begay was a convicted felon and thus was not permitted to possess a gun.

Following a trial, the federal judge hearing the case sentenced Mr. Begay to 15 years under the Armed Career Criminal Act, which mandates a 15 year sentence to a felon who is convicted of possessing a firearm and who has three or more convictions for "violent felonies."  The violent felonies relied up on by the judge were Mr. Begay's 12 DUI convictions.

Clearly, Mr. Begay is not a sympathetic defendant.  However, the law requires three or more convictions for violent felonies.  The Supreme Court held that DUIs are not violent felonies because a DUI is usually not an intentioal act to hurt another person, and because the examples of violent felonies set out in the Armed Career Criminal Act were of a substantially different nature than a DUI.

Does this mean that Mr. Begay is not a dangerous person or that he should not be incarcerated?  No.  It does mean that he should not be convicted of a crime when his conduct does not equal the conduct procsribed in the statute.

Recently I did some legal work for a man who is employed by a local city government in the vehicle maintenance department.   One of his jobs is to maintain police cars.  We were talking about all of the high tech equipment now found in police cars and he mentioned in conversation that more and more police departments are putting recording equipment inside the patrol cars.

The purpose of these recording devices is to record the statements and conversations of people who have been arrested.  Apparently, admissions and statements from these conversations have been used against defendants at trial.

So, the lesson to remember here: if you are arrested, ask to speak to a lawyer and say nothing more.  Assume that anything you say or do in the back seat of the patrol car is being recorded and taped.   If you end up sharing a ride to the police station with another defendant, say nothing to him.  If you end up in a holding cell, do not discuss any of the charges against you.

Our systems of justice provides that the state has to prove its case against you.   Often a particular act can result in a wide range of charges - from a minor charge all the way up to a serious felony charge.  Similarly, prosecutors may ask for a range of punishments in plea deals, and you can be sure that they are not your advocate in this regard.   Your defense attorney's job is to aggressively defend you and work for an acquittal if you are innocent of the charges, or to argue for the most lenient penalties under the law if you do have culpability.

The minute you get arrested, recognize that you are now in a system that is not so much about justice as it is about bargaining.  Your lawyer is the professional - let him speak for you.  The less you say is always the better.