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.

In this scenario, a DUI conviction would wrongfully land you in jail for two or more days, a fine of up to $1,000, a possible loss of your full driving privileges for up to a year, 40 hours of community service, probable loss of insurance coverage, and dramatically increased insurance renewal rates.

In truth, because of the contamination neither you, the arresting officer or the prosecutor would really know exactly what your blood alcohol level was at the time of arrest.   That uncertainty is called “reasonable doubt.”

Now imagine that you retained a smart lawyer like Alan who was able to obtain physical evidence and testimony from the arresting officer that convinced a judge or jury that the blood alcohol test kit was contaminated, thereby resulting in an acquittal.

Now this does not mean that every DUI arrest can be successfully challenged, and conversely there may be some guilty drivers who get off because of bad evidence.  If the stakes are your personal liberty and a huge financial burden, don’t you want the state to have to prove its case beyond a reasonable doubt.  Don’t you want a procedure in place where you can argue against your guilt to an impartial finder of fact?

So, the next time a friend or relative opines that criminal defense attorneys are no better than the defendants they represent, think about how you would feel if you found yourself in the wrong place at the wrong time and your lifestyle was at risk.

The legislation, SB-325, was introduced by Senator Gloria Butler. Representative Pedro Marin plans to introduce a similar bill in the House. The issue came to light when Cobb County resident Mark Bell, an African American, left his home after 10 pm a few months ago to go to the grocery store. A police car pulled up behind Bell, checked his license plate, and followed him all the way to the store. Bell said while the officer never stopped him, the message was clear. “It was racial profiling,” Bell said. “Here in 2010, that is unacceptable in Georgia. A black man can’t leave his house after 10 pm without being profiled. You become fearful. It is mentally nerve-racking.”

Under Butler’s bill, police officers would be required to record the age, gender, race and ethnicity of every person they pull over. That data would be analyzed to detect trends that could show whether racial profiling is happening. The bill also calls for annual officer training. Butler said it would not add to the budget.

“We think this bill is necessary, because racial profiling is a pervasive and serious problem,” Butler said. “People of color are more likely to be stopped and searched by police. Racial profiling is ineffective and based on false assumptions.”

According to an attorney for the ACLU of Georgia, Azadeh N. Shahshahani, 26 states prevent racial profiling of motorists. Florida, Tennessee, North Carolina and Louisiana are the only states in the Southeast that ban the practice. Shahshahani added that 14 states have laws that mandate collection of stop and search data.

“We know that if your skin color is darker than mine or your religion is not Christian, you are likely to be racial profiled,” said the Rev. Tracy Blagec, the vice president of Atlantans Building Leadership of Empowerment, which has joined lawmakers, along with the ACLU, to get the legislation passed. “People like me don’t get pulled over.”

Sen. Donzella James (D-College Park) said her son was stopped and questioned about why he was driving a nice car and dressed up. Nan Orrock (D-Atlanta), who is white, recalled stories of how her son would get stopped when he was riding in cars with young black men.

Representative Marin, who is Hispanic, said it is good timing for this bill. In 2004, 117 members of the House voted yes on a racial profiling bill, but it later died in conference committee. “It has been a long struggle to get this bill before the governor,” Marin said. “But I truly believe it is the right time to get the bill signed, enacted and placed into law.

The Fourth Amendment, which protects against unreasonable searches and seizures, has received a new lease on life in the form of recent rulings from various Federal District Courts and state courts.  The rulings tackle the controversial issue of police officers searching the cell phones of individuals without first obtaining a search warrant.  Many of these cases arise after people have been pulled over during a traffic stop, are seen violating ‘hands-free’ laws, or if a person has been seen using the phone during the commission of a crime, such as drug dealing.  With the increase in “no texting while driving” laws and the proliferation of cell phone hands free devices, this is an issue sure to be argued over for some time to come.

One of the most recent cases to address this situation was the Supreme Court of Ohio’s ruling in State v. Smith. In this particular case, Smith was arrested on drug charges and during this arrest, the police found a cell phone on him, which was thought to have been used in the alleged drug transaction.  Subsequently, the police searched Mr. Smith’s phone without a warrant or his consent.  During this search, they found calls and phone numbers of individuals that Smith conducted drug sales with.  He was charged with various offenses, including drug possession and possession of criminal tools.  Mr. Smith attempted to suppress the evidence gleaned from the cell phone, arguing that his constitutional rights had been violated when the officers searched his phone without a warrant.  The trial court denied this suppression, citing a 2007 federal court decision, United States v. Finley.

The Finley case is one of two conflicting federal court cases regarding the search and seizure of cell phones.  The court in Finely ruled that a cell phone was akin to a closed container, and as such, is subject to a search without a warrant upon arrest.  In the current case, Mr. Smith appealed, claiming that the trial court erred in denying his motion to suppress the evidence obtained through a warrantless cell phone search.  Although the second district court of appeals upheld the decision, the dissent cited the other federal case on this issue, United States v. Park. In this case, the court held that a cell phone is not in fact a “closed container” and that a warrantless search of cell phone data is unconstitutional per the Fourth Amendment.

Upon reviewing Mr. Smith’s case and the constitutionality issue of the cell phone search, the Supreme Court of Ohio noted the unique nature of the circumstances.  Specifically, the court recognized that neither the U.S. Supreme Court nor another state supreme court had ruled on this particular Fourth Amendment problem.  Using the two conflicting Federal cases as precedent, the Ohio Supreme Court sided with the court in Park. The Court addressed the idea of a cell phone as a closed container, noting that the U.S. Supreme Court had defined a container as ‘an object capable of holding another object.’

Here’s the kicker, though: The court, however, found that this definition extended only to objects capable of holding physical objects, not data and information contained in a cell phone.  As such, the Ohio Court found that a cell phone was not a closed container in the same sense as considered in Finley, and therefore not subject to a warrantless search.  Additionally, the Court noted that there was a particular expectation of privacy associated with cell phones, which further encouraged the need for a warrant to inspect its contents.

Therefore, the Supreme Court of Ohio held that the warrantless search of a cell phone obtained during a lawful arrest is prohibited by the Fourth Amendment when said search is unnecessary for the safety of the officers or other extenuating circumstances.

This landmark case is sure to provide great precedent for future cases addressing this same issue.  It is likely that other state courts will validate the search based on the Finley decision.  The conflicting Federal cases are also likely to eventually lead to this Fourth Amendment issue being heard in the U.S. Supreme Court.  Until then, it is always best to obey the hands free laws of your state, as well as know your rights to search and seizure under the Constitution.

For more on this topic of the constitutionality of cell phone searches by law enforcement officers, I recommend you check out Bow Tie Law’s Blog, where you will find a blog post discussing some other rulings involving cell phone search and privacy issues. This particular blog does a great job highlighting some of the legal issues we face in the 21st century with the onset of new technologies like cell phones and hands free devices.

As you might imagine, several of the students became hysterically upset at this news. Several hours later the police officers returned to let the students know that their prior visit was part of a DUI awareness program and that their classmates had not been killed.

The high school guidance counselors and the district school superintendent defended the program as being both necessary and effective. “They were traumatized but we wanted them to be traumatized,” said a school guidance counselor.

What do you think of this tactic? As the parent of two high school students, I see that teenagers sometimes think that they are invincible, and that an emotional shock like the El Camino program might get their attention. On the other hand, I wonder if the police officers may have lost some trust and goodwill in the eyes of the students.

Hopefully, this program will be effective in making student drivers think twice before getting behind the wheel and about keeping diligent in watching for impaired drivers.

In his post "Taking Blood by Force," Mr. Taylor references a California appeals court case in which the California Court of Appeals turned down the appeal of a citizen who was convicted on the basis of a forced blood draw.

Taylor argues that these forced blood draws may not yield accurate results – if the officer does not use the proper technique, and that a restrained motorist might very well be injured if he is restrained.

I have not heard about any forced blood draw cases in Georgia, but I mention this issue because I suspect that a forced blood draw case may eventually make its way to the Supreme Court and if the practice is approved there, then we could very face this issue here.  The Supreme Court has always been fairly lenient in "search and seizure" cases involving automobiles so I would not be surprised to at least see the Supreme Court consider a forced blood draw case.

• Odor of Alcohol: Strong, Moderate, Faint, None
• Eyes: Bloodshot, Watery, Glassy, Dilated, Constricted
• Speech: Mumbled, Slurred, Confused, Not Understandable, Mushmouthed, Stuttered, Fair, Good, Accent, Thick Tongued
• Balance: Wobbling, Falling, Swaying, Unsure, Needed Support
• Attitude: Excited, Hilarious, Talkative, Uncooperative, Profanity, Polite, Sleepy, Combative, Indifferent, Cooperative, Insulting, Cocky
• Walking/Turning: Falling, Swaying, Staggering, Stumbling

Why are these signs important? While the State (i.e. police officer) has a certain amount of leeway to investigate drivers, that leeway is not unlimited. If the officer does not have reasonable cause to suspect that a defendant is under the influence, the arrest and subsequent evidence gathering can be attacked and possibly excluded. Jamie writes that he will explore each of these factors in subsequent posts on his blog.

Well, if that’s all he did, then you would be better off not to pursue it. After all, most people do not like being arrested, and complain about the smallest matter that comes to mind. Many complain about the cuffs being too tight and being pushed around, but that does not equate to being beaten for no cause while under restraint, or kicked when on the ground or otherwise being grossly abused. If you have been grossly abused, then you should contact an experienced attorney who can help you obtain compensation for your injuries. But, remember, you must be injured to get compensation and mere bruises or being handcuffed too tightly is not going to be sufficient for an award of damages.