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.


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.

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).

What is “Implied Consent” Under Georgia Law?

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 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? [Read more…]

Which Cars Are Most Likely to Get Tickets?

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:Hummer H3

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

Cop with radarWhich 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?

‘Batmobile’ Spotted in Texas

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.

Look Out – That Police Car is Bugged!

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.

Don’t Forget to Buckle Up!

On this Memorial Day, 2008 weekend, I would like to take a minute to remind all readers of this blog about the importance of wearing seat belts.  Remember, the goal of a DUI or criminal defense lawyer is not to encourage people to break the law.  And, at least in my opinion, criminal defense lawyers are not doing their jobs if they don’t make an effort to get their clients help and assistance so that those clients will not reenter the criminal defense system.

Yes, there are cases that turn on technicalities.  And, yes, there are very good reasons to keep police officer and prosecutors honest – the court system is designed to be adversarial and the natural tendency of the State’s representatives will be to assume every defendant is guilty and to push for hard line punishment.  Defense lawyers usually have a different view of what is reasonable and they have a more positive view about the nature of their clients.

Often, the system works just fine.  Usually, represented defendants will conclude that the system works a little better for them.

At the end of the day, however, if you are a defendant, I encourage you to learn from your experience.  A good lawyer may get you a second chance, but eventually, even the best attorney can’t save you from yourself.

I ran across a very sad story in Newsweek, written by a flight nurse who works on hospital emergency response helicopters.  She relates the story of getting a call to an accident scene and discovering that her 17 year old son lay dying.  He had not been wearing a seat belt and was ejected from his vehicle.  Three of the four people in the car that day were not wearing seat belts – two of the three died and the other was seriously injured.  A front seat passenger was buckled in and walked away from the accident.

DUI arrests and other traffic stops – including seat belt stops – should be seen as a wake up call.  You might be lucky this time, but you cannot keep tempting fate.

Yes, lawyers will always be there to try to pick up the pieces.  But don’t rely on this.  Be safe, drive safely and take that extra second to think ahead about the consequences of poor decisions.

How to Act When You are Stopped by the Police

One of my favorite blogs, Lifehacker, alerted me to an article in Car & Driver entitled “Busted! What Should I Do Now?”    The magazine spoke to police officers and state troopers all over the country to get their feedback about how to act during a traffic stop.  The Car & Driver article sets out five things you should do if you are stopped, and five things you should not do.

The Five Things You Should Do

  1. Pull to the right at the first opportunity, then turn off your engine.
  2. Stay in your car with your seat belt fastened, roll down your window, turn off the radio, and do not touch your cell phone
  3. Place your hands on your steering wheel and sit quietly.  Tell your passengers to be quiet.
  4. Retrieve license, registration and insurance proof only when asked to do so.
  5. Answer questions succinctly and don’t argue

The Five Things You Should Not Do

  1. Don’t slam on your brakes or continue driving for an extended period of time.
  2. Do not jump out of the vehicle, run at the officer or make sudden movements
  3. Minimize your complaining or arguments
  4. Do not lie
  5. Do not show your contempt by peeling away after getting a ticket

Man Fixing Flat Tire Arrested for DUI – Can These Charges be Challenged?

The University of Georgia police arrested a man and charged him with DUI when they found him fixing a flat tire while intoxicated.  The story in the Athens Banner Herald is very brief and there may be additional facts, but I suspect that most first year law students can see the problems with a DUI charge.

There is no indication that the police officers saw the suspect engaged in driving his vehicle.  If the flat tire happened four hours prior to the arrest, and the suspect decided to visit a bar while waiting for road service, there would be a reasonable argument that there is insufficient evidence that he was in actual physical control of the vehicle while intoxicated.

On the other hand, Georgia Courts (and the United States Supreme Court) have given somewhat wide latitude to the police when it comes to arrests arising from driving.  The courts recognize that a driver possesses an means to escape (the vehicle) and that there is a public benefit arising from keeping impaired drivers off the road.

That being said, I think that in this case, a capable DUI defense lawyer should have a reasonable chance at bargaining down the DUI charge to some lesser offense.  Now it does appear that this defendant has other problems than DUI, but, assuming that he kept his mouth shut, the DUI charge seems susceptible to a challenge.