Diet Soda Sweetened with Aspartame may Increase Blood Alcohol Content

cocktail mixed with aspartame sweetened diet sodaWe ran across an interesting article about the effect of artificially sweetened diet soda combined with alcohol.  According to researchers from Northern Kentucky University, alcohol consumed with a diet soda mixer results in higher breath alcohol concentrations (BrACs) compared with the same amount of alcohol consumed with a similar beverage containing sugar.

The researchers created a test where they created three different drinks:

  • vodka mixed with sugar sweetened regular Squirt soda
  • vodka mixed with diet Squirt
  • a placebo drink

Breath alcohol concentrations were significantly higher for test subjects who consumed the diet soda/vodka mix than for subjects who consumed the regular soda/vodka mix.   Interestingly, however, test subjects did not report any significant subjective differences – in other words, they did not feel any more or less intoxicated.

The test results were consistent regardless of whether the subject was male or female.  According to study author Professor Cecile Marczinski:  in this study, subjects felt the same whether they drank the diet or regular mixed alcoholic beverage, however, they were above the limit of .08 when they consumed the diet mixer, and below it when they drank the regular mixed beverage.

The study’s conclusion:  mixing alcohol with a diet soft drink resulted in elevated BrACs, as compared with the same amount of alcohol mixed with a sugar-sweetened beverage.  Individuals were unaware of these differences, a factor that may increase the safety risks associated with drinking alcohol.

View Professor Marczinski’s bio from Western Kentucky University web site – click here

Prof. Marczinski’s Alcohol and Energy Drink Research lab web site – click here


Don’t Forget that Police Cars Contain Video Cameras

I recently ran across video posted on a New Jersey law firm’s blog of a man singing Queen’s Bohemian Rhapsody at full volume after he had been arrested for DUI.  Apparently this gentleman did not realize that most police cars are equipped with video facing forwards (to record a stop and arrest) and backwards towards the back seat – to record everything done or said by an arrested person.

The police have the right to record you when you are in custody.  At the same time, you have the right to remain silent and you should exercise that right.  If you say anything, it should be that you want to speak to your lawyer.

Singing or doing anything that could be used as evidence of your intoxication is definitely not a good idea.   Should your case go to trial, you can be sure that the prosecutor will play the video of you singing or otherwise carrying on, for the jury.

If you were arrested and did engage in the type of behavior as the gentleman in this video, please tell your lawyer.  In some instances we can move to suppress this evidence and keep it away from the jury.   Even if you do not intend to go to trial, getting prejudicial evidence like this ruled as inadmissible will result in more favorable please negotiations.

Thanks to our colleagues at Console & Hollawell for the inspiration.


Disorderly Conduct Charge Results in 12 Month Probation and Hefty Expense

A Decatur woman recently stood trial for Disorderly Conduct under Georgia’s state law.  The defendant, Donetta Foster, took the stand to testify on Wednesday, according to a story on Channel 2 news.  Ms. Foster’s disorderly charge stems from a November 2010 incident where she allegedly got into an argument with a DeKalb County police officer after her 14 month-old son was making too much noise at a local library.   Parts of the incident were captured on the officer’s dash cam, and were played at her trial in the DeKalb County state court.  As with any Georgia misdemeanor charge, Ms. Foster faced up to a year in jail.

Ms. Foster was, in fact, found guilty and sentenced to 12 months probation, and will have to perform 40 hours of community service.  Foster is also required to attend at her cost three parenting classes, three child impact classes, three Alternative Path for Women classes and one day-long intensive anger management class.

Remember, Ms. Foster was arrested for yelling at a police officer in a library.

Under Georgia law, disorderly conduct is a vague criminal statute, and is often the subject of Constitutional challenges.
Georgia law defines disorderly conduct as:
Section 16-11-39 Disorderly conduct
(a) A person commits the offense of disorderly conduct when such person commits any of the following:
(1) Acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health;
(2) Acts in a violent or tumultuous manner toward another person whereby the property of such person is placed in danger of being damaged or destroyed;
(3) Without provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words”; or
(4) Without provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.
(b) Any person who commits the offense of disorderly conduct shall be guilty of a misdemeanor.
(c) This Code section shall not be deemed or construed to affect or limit the powers of counties or municipal corporations to adopt ordinances or resolutions prohibiting disorderly conduct within their respective limits.

As you can see, there are multiple ways to violate the disorderly conduct law, and they are each subject to the reader’s interpretation.   At the same time, as the Foster case demonstrates, even a “disorderly conduct” charge can result in jail time, probation and other time consuming and expensive punishments.   If you have been charged with disorderly conduct, please call me at 404-642-6333 and I will help you better understand your options and defenses.

DUI Arrest = Two Cases to Worry About

Obviously, it can be very unsettling if you are arrested for DUI.   What you may not know is that you will have to deal with two (2) cases after your arrest.  The first is the criminal case – this involves the State of Georgia (the “State”) pursuing sanctions against you.  These sanctions can include fines, probation and jail time.

The second case you must deal with is the civil case – by this I mean an action by the State Department of Driver Services to suspend your license.  Unlike the criminal matter, which may take weeks or months to resolve, the civil action by the Department of Motor Vehicles is an “administrative” matter.  The Georgia legislature entrusted the DDS to create its own rules for license suspension after a DUI and in Georgia, you have only ten (10) days to request an administrative hearing before the DDS to determine whether your license will be suspended.

If you do not send this “10 day letter,” your license will be suspended – period.  Your only hope thereafter will be an outright acquittal of the DUI charge.

If you do send the 10 day letter, you preserve multiple options.  Often times, I can coordinate the administrative hearing with the criminal case such that I can work out an overall deal that may involve a plea for a lesser offense and limited license suspensions.

The point here is that after your DUI arrest, you should not delay in speaking to a lawyer.  Even if you are concerned about the cost of a defense, I urge you to call me.  I do not charge for consultations and a ten minute call with me may save you months or even years of headaches.

Georgia, by the way, is not the only State that pursues two separate actions against accused drunk drivers.  Florida does as well and thanks to noted Miami DUI lawyer Jonathan Blecher for his informative blog post about the dual civil and criminal ramifications of a DUI arrest.

Jury Awards $30,000 in Punitive Damages Against DUI Driver

jury at workA jury in Gwinnett County awarded over $30,000 in damages last month to Plaintiff Amber Hand after she was rear ended by a DUI driver in July of 2009.  The article, published by the Fulton County Daily Report, describes how the Defendant in the case, Michael E. Justice, was under the influence of alcohol, failed field sobriety evaluations (SFSTs), and feigned blowing into the Intoxilyzer 5000, Georgia’s official breath testing machine used in DUI arrests.

While damage to Mrs. Hand’s vehicle was slight, and she did not require immediate medical attention, she did go get checked out the next day.  Fortunately, her injuries were relatively minor, soft tissue injuries common in low speed collisions and required less than $900.00 in medical treatment.  However, under Georgia law, DUI drivers are subjected to possible punitive damages designed to punish and deter dangerous, willful and unlawful conduct.  Clearly, by awarding a large punitive damage award, Mrs. Hand’s jury sent a message that DUI drivers are a threat to Georgia’s roadways and will be punished.  In practice, cases similar to Mrs. Hand’s frequently settle for much, much less under circumstances where a Defendant’s conduct does not rise to a level justifying punitive damages.

The point is clear: DUI in Georgia is a crime that subjects you not only to harsh criminal punishment, but to extreme civil liability as well.   In this case, the punitive damage award was nearly 25 times the amount of all other damages combined.

Other serious traffic violations that may allow Plaintiff’s to sue for punitive damages include Reckless Driving charges, excessive Speeding charges, texting while driving in violation of Georgia’s law, and Aggressive Driving.

Frustrated Driver Files Federal Lawsuit Against Georgia “Speed Trap”

police speed trapThe Atlanta Journal-Constitution reports that a retired dentist has filed a federal lawsuit against the small Georgia town of Arcade, alleging that the Athens area municipality used “overzealous and improper tactics in creating a speed trap” along U.S. Highway 129.

According to the AJC, Arcade with four police officers generated $192,000 or 28% of its $675,000 annual budget from fines and forfeitures in 2009.  In 2008, the percentage was 40%.

Local business owners complain that Arcade’s zealous traffic enforcement prompts drivers to steer clear of the town, thereby hurting private business.

If successful this private lawsuit could be turned into a class action and Arcade could face punitive damages.

Troy Davis Faces Yet Another Procedural Hurdle

This past week a three judge panel from the 11th Circuit Court of Appeals refused to hear an appeal filed by lawyers for convicted murderer Troy Davis.  The United States Supreme Court had previously ordered a federal district court judge to consider whether new evidence in the Davis case was strong enough to justify a new trial.

District Court judge William Moore ruled that the evidence presented by Mr. Davis’ lawyer was not sufficient to warrant a new trial.  Davis’ attorneys appealed Judge Moore’s decision to the 11th Circuit Court of Appeals, but the three judge panel essentially ruled that only the Supreme Court could consider Davis’ appeal of Judge Moore’s ruling.

Now, Davis and his lawyers must hope that the United States Supreme Court will step in and overrule Judge Moore.

What Happens When You Appear in Criminal Court Without a Lawyer

Despite what you may see on television, where almost every criminal defendant has a lawyer, in reality, most defendants appear either without counsel, or represented by a public defender who may meet with them 10 minutes before the scheduled court time.

Misdemeanor defendants are most likely to appear without counsel – they often think that they may get a fine, then they can go home.

As an attorney, it is certainly easy for me to say “never appear in a criminal court without a lawyer.”  I fully understand that most people do not have ready access to the $1,000 to $2,000 that many defense attorneys charge to negotiate a deal.

On the other hand, if you decide to take your chances and appear without a lawyer, do your research and understand what you will be facing.  Remember, you are entering a different world and the prosecutor’s goal is not “justice” but it is to clear out his docket as quickly and efficiently as possible.  It is your problem if you accept his recommendation without negotiation.

Realize as well that the prosecutor, judge and court personnel are not under any obligation to explain the court processes to you or give you time to think about what you want to do.  Judges are very busy people and your case, while important to you, is only one of hundreds or thousands they have to handle.

When a potential client asks me whether it makes sense to hire a lawyer, I explain that my job is mainly to eliminate the uncertainty factor.  I have been in court before and I know how the process works.  I have perspective about what constitutes a “reasonable” plea bargain and when the prosecutor’s case is weak enough to take our chances in court.

Take a look at this blog post entitled Bargaining for Freedom, A Day in Criminal Court.  The author, a lawyer who does not handle criminal matters, describes the experiences of a friend who appeared in court without a lawyer.  While this article describes a day in a Los Angeles criminal court, the experience he describes is fairly universal and could have happened in any busy Atlanta area court as well.

Gwinnett County Commission Chairman Arrested for DUI

The Atlanta Journal Constitution reports that Gwinnett County Commission Chairman Charles Bannister has been arrested for DUI.  There is an interesting twist to this story.

According to the arresting officer, Mr. Bannister failed three field tests for sobriety, his restaurant bill showed purchases of 5 Bud Light beers + a half pitcher of beer, and he reportedly stated to the officer “I can’t believe this is all over one or two beers.”  Mr. Bannister was then given a breath test – which registered 0.00!

A blood test was later administered and the results have not been made  public.

Assuming that Mr. Bannister did consume some alcohol, the breath test (we can assume this was a  Intoxilyzer), the equipment used was clearly faulty.  In this case, the faulty equipment benefits the defendant but how often might a faulty breath test machine come back with a false positive?

The point here is not to pass judgment on Mr. Bannister or the integrity of Gwinnett County law enforcement.  You can take from this episode that breath testing equipment can be very unreliable.  A blood test offers a much more accurate reading of your blood alcohol levels (although there are grounds to contest these numbers as well).

The Future of DUI Laws

Noted California criminal defense lawyer Lawrence Taylor publishes an extremely well researched and informative blog about DUI defense.  You can find it at and I recommend it highly to both lawyers and DUI defendants.  While some of Mr. Taylor’s suggestions may not be applicable in Georgia, I always find a tidbit or two in each post and some of the DUI defense tactics that we use locally were pioneered by lawyers like Lawrence Taylor.

This past week, Mr. Taylor published a fascinating post called “The Future of DUI Revisited.”  In this post, he talks about the trends he sees in DUI lawmaking as well as enforcement.  Specifically Mr. Taylor observes that state legislators are passing laws that reduce the blood alcohol limits, while accepting less accurate measuring equipment for prosecution.  He also predicts that the federal government may get involved in DUI prosecution (yet another mis-use of the Commerce Clause, but that is a story for a different day) and that Constitutional protections for DUI defendants are being eroded.

Obviously everyone – citizens, DUI defense lawyers, and politicians – want to remove impaired drivers from the road.   The job of the DUI attorney, however, is to see to it that our clients receive fair and appropriate treatment by the courts.   Laws that punish defendants based on a blood alcohol reading based on machines calibrated for a 200 lb. man will not result in due process of law if you weight 250 or 350 lbs. or if the testing equipment was not properly calibrated.   Because the stakes in criminal prosecutions are so high, the state must prove its case and if the methodology utilized by the prosecutor is flawed, then your constitutional right to a presumption of innocence and clarity in the law will be compromised.

Mr. Taylor suggests that the intent of some of the anti-drunk driving groups is morphing into an anti-drinking focus more so than anti-drinking and driving.  Could the current trends in DUI law be the harbinger for a new prohibition?