A 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.
Filed under Fines and Fees, Georgia Courts by on Apr 12th, 2011. Comment. 
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.
Filed under Georgia Courts by on Nov 8th, 2010. Comment.
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.
Filed under Georgia Courts, Punishment issues by on Jul 26th, 2010. Comment.
Laws that describe various crimes may be set out in both state statutes as well as federal statutes. Generally crimes that are “local” in nature such as burglary, assault, rape and murder are state law crimes, whereas interstate drug trafficking, organized crime and crimes that occur in multiple states are federal crimes. Sometimes, a defendant can be prosecuted by both a state prosecutor (i.e. the district attorney) and a federal prosecutor (the United States Attorney).
When a defendant is convicted of a state law crime such as murder, he will generally file an appeal to a state appeals court. Appeals generally involve supposed errors of law – the defendant may contend that certain evidence was improperly admitted or that the jury instructions were wrong. Except in rare instances the appeals court will not reverse a conviction based on the judge or jury’s evaluation of the evidence. In other words, an appeal of a criminal conviction is not a new trial – the defendant must convince the appeals court that the trial court made significant errors that could have changed the outcome.
If a defendant loses his state court appeals and does nothing further, the state will enforce its penalty by leaving the defendant in prison, or in capital cases, by executing the defendant.
Because “death penalty” cases involve the ultimate penalty, capital defendants have a second layer of appeal available to them under a concept called “habeas corpus,” which allows a federal court (and federal appeals courts, up to and including the United States Supreme Court) to consider issues involved in the state court trial or subsequent appeal as Constitutional matters. The “due process” clause of the 14th Amendment to the Constitution guarantees all citizens fundamental fairness and justice in all criminal prosecutions, and the federal court can review the decisions of the state trial and appeal courts even in cases not involving federal criminal law.
Successful habeas corpus appeals are rare. Federal judges have the power to decide which cases they will consider – thus there is no guarantee that the federal courts will accept a case for review. The further along the appeal process a case travels, the less likely that it will be heard, much less be decided in the defendant’s favor. Very, very few cases end up before the United States Supreme Court – only cases involving important legal issues with far reaching consequences will be accepted by the Supreme Court for review.
One such case that has made it through both state appeals procedures and federal appeals procedures all the way to the United States Supreme Court is the case of Wellons v. Hall, the case involving the chocolate penis.
Defendant Wellons was convicted by a Cobb County jury of the rape and murder of a 15 year old girl named India Roberts. Because of the vile and horrible nature of the crime, the jury sentenced defendant Wellons to death for the murder and life in prison for the rape. Read more on Supreme Court Vacates Murder Conviction Because a Juror Gave the Trial Judge a Chocolate Penis as a Gag Gift…
Filed under Georgia Courts, Trial issues by on Feb 15th, 2010. Comment.
On Tuesday the unusual practices in Georgia trial courts, including disrespectful gifts to court personnel and the ejection of a defendant’s uncle, were the subjects of a pair of unsigned Supreme Court decisions.
In one of the Georgia cases, Presley v. Georgia, the Supreme Court came to a conclusion on two open issues concerning closed courtrooms.
The trial judge had kicked out an uncle of the defendant during jury selection and said her courtroom was too small to accommodate both potential jurors and the public. The defendant, Eric Presley, who had been convicted of trafficking in cocaine, appealed the conviction and claimed his Sixth Amendment right to a public trial had been violated.
In 1984, the Supreme Court had ruled that the press and the public have a First Amendment right of access to jury selection. Tuesday the court extended that right to criminal defendants under the Sixth Amendment for Presley’s case. “There is no legitimate reason, at least in the context of jury selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has,” said the opinion.
The Supreme Court also concluded that a defendant seeking to open a courtroom does not need to present alternatives to the trial judge. Whether trial judges are given alternatives or not, the majority opinion said, they “are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”
Justice Clarence Thomas and Justice Antonin Scalia disagreed, saying the majority should not have decided the two questions in summary fashion without a full briefing and argument.
The second Georgia case, Wellons v. Hall, ordered the federal appeals court in Atlanta to reconsider its decision that there was nothing legally wrong with two gifts that had been given to court personnel by the jurors in a capital trial. The two gifts were a chocolate penis for the trial judge and chocolate breast for the bailiff.
“Judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect,” the unsigned majority opinion said.
The decision instructed the appeals court to reconsider the case in light of Cone v. Bell, a Supreme Court decision from last April clarifying how federal courts may take account of state court rulings in habeas corpus cases. Four justices dissented. Justice Scalia, joined by Justice Thomas, said that the majority had treated the appeals court with disrespect, “as though we were schoolmasters grading their homework,” and that “an appropriately self-respecting response” from the appeals court “would be summary reissuance of the same opinion.”
Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. also disagreed saying the gifts were “strange and tasteless” as well as “facially troubling,” Justice Alito added that the Supreme Court should either have agreed to hear the case or denied review, but sending the case back for reconsideration was inappropriate.
Filed under Blog, Georgia Courts by on Jan 20th, 2010. Comment.
In previous blog posts, I have discussed the case of Troy Anthony Davis, a Savannah man convicted of murdering a police officer in 1989. Mr. Davis current sits on Georgia’s death row, while attorneys pursue all available remedies.
Davis’ current (and possibly final) appeal rests in the United States Supreme Court. On June 29, 2009, however, the Supreme Court concluded its 2008-2009 session without making any decision on Mr. Davis’ petition for habeas corpus. A petition for habeas corpus is a demand for extraordinary relief and is used in a criminal matter when a defendant contends that he has been denied due process by lower courts.
At this point, Mr. Davis is asking the Supreme Court to set into motion a process whereby he would end up with a new trial on the evidence. He contends, among other issues, that since the original trial the eyewitnesses to testified against him in the original trial have recanted, and that other witnesses, previously unknown, were now available to testify.
In addition the Georgia Resource Center, which provided legal help for Mr. Davis (as well as for other indigent defendants) found its budget and staff cut, thereby reducing its effectiveness in presenting Mr. Davis’ case.
Davis’ plight has also garnered the attention of activists and celebrities throughout the world who are voicing support for a new trial. Read more on Update on Troy Anthony Davis Case…
Filed under Georgia Courts, Punishment issues, Trial issues by on Jul 9th, 2009. 2 Comments.
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.
Filed under DUI laws, Georgia Courts by on Apr 13th, 2009. Comment.
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.
Filed under Georgia Courts, Trial issues by on Dec 18th, 2008. Comment.
One of the most frequent questions I hear from clients has to do with plea bargains vs. trials. If there is a fundamental flaw with the evidence to be used against you, or if the State’s witnesses are weak, the State may not be able to prove its case beyond a reasonable doubt and you should consider taking your case to trial.
On the other hand, your case may be one where the State’s evidence is admissable and we may decide that a judge or jury trial may be risky. In such instances, we may be able to negotiate a favorable plea bargain to keep you out of jail or to other minimize the negative consequences of a DUI conviction.
What factors come into play when we negotiate a DUI plea bargain? There are no published statistics to answer this but DUI defense lawyers around the country generally find similarities in their experiences. Ohio DUI lawyer Brad Koffel posted a list of the top ten risk factors that hurt his chances at negotiating a plea bargain. Brad’s list is not exhaustive but I agree with him that the more of these factors that apply in your case, the more difficult it will be to negotiate the most favorable terms of a plea bargain.
Here are the factors that attorney Koffel identifies:
- Car Accidents
- Blood Tests
- Breath Tests
- Urine Tests
- Video showing an impaired client
- State patrol hotline calls about our client
- Client or passenger statements tantamount to confessions of being DUI
- Rudeness & belligerence towards police officers
- The county the DUI arrest occurred
- Prior Convictions for DUI
Rest assured that even if your case seems hopeless, your DUI defense lawyer’s job is to identify each and every weakness of the State’s case and to guide you regarding steps you can take to help your chances. I have found that clients accused of the most serious DUI offenses need representation even more than first time offenders with limited alcohol impairment. I have yet to see a case where even a repeat offender with several of these risk factors does not have some redeeming character attribute that can help his case. I therefore urge you not to just give up if the case against you looks bleak.
Filed under Georgia Courts, Pre-trial actions, Punishment issues by on Sep 26th, 2006. Comment.
In a gesture of appreciation to his fellow criminal defense lawyers, noted Marietta DUI lawyer Guy Sharpe has published his Motion for Full Information on the Intoxilyzer 5000. Guy states that he frequently receives calls about this Motion and he has released it to the DUI defense community as a "thank you" to the many DUI and criminal defense lawyers throughout the State who have generously shared their expertise with him. This Motion is for the use of criminal defense lawyers only and carries with it no warranties or guarantees of any kind. Attorneys who use or modify this Motion do so at their own risk.
Filed under Georgia Courts, Intoxilyzer 5000 issues, Pre-trial actions by on Jun 22nd, 2006. 3 Comments.
