Colorado Bill Could Make Driving Too High Illegal

Colorado recently amended their Constitution to allow for those 21 and over to legally possess and smoke marijuana.  Now, Colorado is on the way to becoming one of the few states in the U.S. to enact a DUI law limiting the amount of THC one may have in their system when driving.  Last week, a proposed bill that would set a “per se” or legal limit of THC at 5 nanograms per milliliter of whole blood, passed a house committee and is on the way up the ladder.  Of course, the bill has critics on both sides questioning its effectiveness.  colorado marijuana DUI

Proponents say that the bill is necessary, and even call for lower limits on the amount of THC one may legally have pulsing through their bloodstream while driving.  Others, however, say that impairment may vary greatly from person to person, making the hard-and-fast limit impracticable and ineffective.  Notably, the most current version of the bill does allow for those charged with DUI marijuana to rebut the charges by showing a lack of impairment.  Therefore, factors like driving actions and performance of field sobriety tests will become important in the cases.

Currently, Georgia and most other states do not allow for legal possession of marijuana.  Georgia does have DUI laws to include those driving under the influence of marijuana, but, under Georgia’s laws the State must prove impairment rather than mere consumption.  This comes after a successful challenge to the Georgia law under the Equal Protection Clause of the Constitution.

So, should all states enact DUI charges that set a legal limit in marijuana cases?  Is Colorado’s proposed law a good idea or is it flawed?  Comment below.

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?

“Per se” vs. “less safe” violations: 2 types of DUI violations in Georgia

If you are caught driving under the influence in Georgia, there are two different types of charges that you may face. You may be charged with a “less safe” violation or a “per se” violation.

A “per se” violation means that you had a blood alcohol content over the legal limit when you were caught driving. As you probably already know, in Georgia, a BAC of 0.08 percent and up is over the legal limit. If your BAC is over the legal limit, then the prosecutor does not have to prove that you were a “less safe” driver. This means that even if you were not driving recklessly, you can still be convicted because you had an amount of alcohol in your blood that was above the legal limit.

If you are under the age of 21 or a commercial driver, “per se” violations are much stricter. Georgia has Zero Tolerance laws which mean that if an underage driver has a BAC of 0.02 percent or higher, they will be charged with a “per se” violation. And as far as commercial vehicle drivers are concerned, if you drive a commercial vehicle, you can be charged with a “per se” violation if you have a BAC of 0.04 percent or higher.

Now, if you are charged with a “less safe” driver violation, then for you to be convicted the officer must prove just that (that you are a less safe driver due to being under the influence). The officer must testify about why they believe you were a less safe driver, such as if you were driving recklessly, your breath smelled of alcohol, or your speech was slurred.

If you are charged with either of these Georgia DUI violations, speak with an experienced defense attorney soon, as there are many defenses that can be used. For example, if you are charged with a “less safe” violation because you were driving recklessly and your eyes were red, it’s possible you just had something in your eye irritating it and were distracted trying to remove it. Also, in a previous post I covered the problems with the devices used to test your breath. Highlighting such problems is also a means of defense if you are charged with a “per se” violation.

The bottom line is that you should always contact an experienced DUI attorney when you have been convicted of DUI in Georgia – whether your violation is considered “per se” or “less safe.”

A Defense of the DUI Law Practice

Every DUI lawyer has faced the question “how can you face yourself in the mirror in the morning, knowing that you are defending drunk drivers who might cause injury or death to innocent men, women and children?  Wouldn’t we all be better off if drunk drivers lost their licenses permanently and were left to rot in jail for months or years?”

Persons accused of driving under the influence garner little sympathy, especially those with multiple offenses.   How can any lawyer want to get a repeat offender off on a technicality?

Here is how I respond:

First, the goal of any reputable criminal defense lawyer is to investigate to determine whether the state (in the form of the police officers and the prosecutors) have done their job according to the law.  In the American system, criminal prosecutions are adversarial in nature, meaning that the state’s attorneys (the prosecutor) and the defense attorney are on opposite sides.

Our founding fathers recognized that representatives of the state have significant resources and built in authority when appearing before juries.  Such power can be abused if not held in check.   Unfettered police power can turn a free society into an authoritarian one.   History has shown that when agents of the state can enter people’s homes at will, detain them indefinitely, and incarcerate without critically analyzed evidence, personal freedom disappears.  We can both support the hard work and bravery of policemen and women while at the same time demanding that these officers take care to collect and store evidence properly, advise the accused of certain constitutional rights and engage in a certain baseline of appropriate conduct.

How does all this apply to a DUI case?  Take a look at this informative article about blood alcohol testing kits in Georgia from respected Newnan, Georgia DUI defense attorney Alan Trapp.   Alan discusses the blood collection kits used by state and county police forces in Georgia and the potential for false results because of stale preservative or a defective seal.  Now imagine that you consumed one beer at dinner and were randomly stopped at a DUI checkpoint.  Further assume that the DUI kit used by the local police officer was contaminated with a yeast called Candida albicans that began to ferment when blood was added.  Further assume that there was insufficient preservative in the test kit.  A properly calibrated kit might have shown your blood alcohol content at .03, well below the legal limit, but the contaminated kit yielded a result of .09. [Read more…]

How to avoid getting your license suspended immediately after a DUI

In Georgia, if you have been charged with driving under the influence, your driver’s license could be suspended even before you appear in court due to a law called the administrative driver’s license suspension. If you have been arrested for a DUI, it is important to know how to act quickly to avoid administrative suspension and the consequences you may be facing.

When you are arrested for driving under the influence, the officer should first read the Georgia Implied Consent Notice. Then you will be asked to take a breath test, which is done with the Intoxilyzer 5000 in Georgia. If you fail the breath test, or decline to take the test, the officer will submit a report to the Department of Public Safety, and you have ten business days to request an administrative hearing. If you fail to request a hearing, your license will automatically be suspended.

If you chose to decline to take the breath test, you will face harsher consequences than if you do take the test and fail it. Not only will you be automatically disqualified from receiving a limited driving permit, which would allow you to drive to and from work, you may also be disqualified from having a hearing and lose your appeal. Depending on your record, you could face a license suspension from one to five years. The only way to have the suspension undone is to win at trial or plead to a different charge.

This is why it is extremely important that you request an administrative hearing within 10 days of getting pulled over. It may not to be late to reverse the damage brought on by declining to take the test. At best, you will be able to prevent the license suspension and keep your license.

If you took the breath test and failed, you could still be granted a limited permit if you request a license hearing within ten days. Once your limited permit expires, if you complete a DUI School course and pay a $200 fee, you may be able to get your license reinstated early. But if you do not request a license hearing within ten days, your license will be suspended for one year. So again, if you took the breath test and failed, request the administrative hearing within 10 days of the DUI!

It is incredibly important to meet all deadlines and make sure you request a hearing within ten days if you have been arrested for driving under the influence in Georgia or have declined to take a breathalyzer. I recommend speaking with an experienced attorney to help navigate you through the laws of a DUI charge in Georgia.

First time DUI offenders encounter strict punishments in Georgia

Driving under the influence is a serious matter and can have serious consequences. Most often, DUIs involve the consumption of alcohol. However, contrary to previous thinking, a DUI is not strictly alcohol specific. In Georgia, it is a criminal offense to operate a car, truck, or motorcycle when a driver’s ability has been compromised by the use of either alcohol or drugs, whether legal or illegal. Legal drugs include over-the-counter medications, such as antihistamines, and prescription medicines, such as Class A, B or C painkillers. Illegal drugs often include, but not limited to, marijuana and cocaine.

The state of Georgia has enacted strict penalties for those individuals arrested of DUI. While criminal laws are designed to serve as a deterrent factor, there will be some individuals who are willing to gamble against the odds of being charged and later convicted. For those individuals who are first-time DUI offenders, the below serves as an outline of punishments and/or consequences to be expected. Noted below are the possible sentences and/or fines for first-time DUI offenders. These punishments do not take into consideration any aggravating factors such as a prior conviction, destruction of personal property other than their own, and loss of life.

Consequences for first-time DUI offenders with no aggravating circumstances

  • Suspension of driver’s license for a period of one year.
  • Minimum jail sentence of one day. Normal length of incarceration is ten days to one year. If sentence is less than 12 months, the defendant will be sentenced to serve probation for a period of 12 months.
  • 40 hours of community service for those individuals 21 years of age and older. Defendants below the age of 21 will be required to complete 20 hours of community service.
  • Monetary fines between $300.00 to $1,000.00
  • Defendant will be required to pay all court ordered costs to include filing fees and court appointed attorney fees.
  • Defendant will be required to complete a certified DUI course at the expense of the Defendant.
  • Completion of a Risk Reduction Program
  • A lifetime record of a DUI conviction.

A DUI charge of any magnitude is an important matter and should be taken seriously. Any individual charged with driving under the influence should immediately seek the advice of an attorney specializing in criminal law.

A Teenager’s Guide to Georgia Law

Many teenagers are not aware of what laws affect them, or are ignorant that the consequences of committing a crime will actually happen to them. It is important for teenagers to understand their rights, and that is why attorney J. Tom Morgan will be presenting a program titled, “A Teenagers Guide to Georgia Law.” Georgia teenagers will be given advice about teen-specific laws and consequences that is important for them to understand, specifically regarding alcohol, drugs and sex.

For example, if a 17-year-old boy takes a pornographic photo of his 17-year-old girlfriend and sends it to his friend; both boys are guilty of a 20-year felony. In Georgia, sending a pornographic photo via text message of someone under the age of 18 is a felony, even if the sender is a minor.

One aspect of Georgia law that is often misunderstood by teenagers has to do with underage drinking and driving. While many teenagers think they can have a few drinks and drive without getting a DUI, this is not true. The blood alcohol level in Georgia must be .02 or higher for an underage person to get a DUI, and many teens don’t realize that only one drink will often put them over this limit. For anyone under the age of 21 to get behind the wheel of a vehicle with any alcohol on their breath, they are absolutely risking, and probably will get, a DUI.

Another common question teens often ask is if an underage person is at a party that has alcohol, but is not drinking, can they be arrested? The answer is no. It is not against the law to be at a party where kids are drinking alcohol; it’s just against the law to be drinking as well. If police do come and you have not been drinking, Morgan recommends asking for a Breathalyzer to prove your innocence.

Morgan, the author of “Ignorance is No Defense,” a guide for teenagers and their parents on Georgia law, wants to provide teens and their parents with information meant to deter the act of crimes, as well as to help teens avoid becoming the victims of crimes. He believes most young people will make wiser decisions if they have given it some thought ahead of time and have the legal knowledge.

Kathy Hodges, a counselor at Savannah Country Day School where the program will be held, said the program will help students to make good decisions. “We’re concerned that kids can make decisions without really understanding the full ramifications of them,” said Hodges. “We feel that part of our obligation in educating kids is to help them understand the consequences of decisions.”

New Georgia Law Makes 4th DUI Within 10 Years a Felony

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.

Georgia Law Provides for Two Forms of DUI

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.

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.