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.

Field Sobriety Tests Inherently Flawed, Says Independent Researcher

Dallas criminal defense lawyer Robert Guest recently posted a very useful interview with field sobriety test expert Dr. Greg Kane. Robert contends that the field sobriety test guidelines that are a standard part of police officer training are based on flawed science. Dr. Kane’s observations suggest that attorney Guest may have some valid points.

Specifically, Dr. Kane contends that researchers who validate the accuracy of currently used field sobriety tests do not test a cross section of the population – instead, the population tested is heavily weighted to include heavy drinkers. The tests, therefore, are designed to suggest that almost everyone taking a field sobriety test is impaired. In one review of the validation studies, 93% of individual whose blood alcohol content was below the Texas limit of .05% s failed the field sobriety tests. At a .08 BAC, the field sobriety test was only 29% accurate, meaning that 71% of defendants convicted based on field sobriety tests would be wrongfully convicted.

Dr. Kane goes on to say that the legitimacy and accuracy of field sobriety tests has been accepted as a given for so long that most defendants and their counsel fail to challenge the premise behind the tests, i.e. that the tests themselves have some association with a blood alcohol levels contemplated by DUI statutes.

If you are facing a DUI charge that is based on your performance on field sobriety tests, Dr. Kane’s research may offer the foundation for an aggressive defense.

State's Failure to Turn Over Intoxilyzer Source Code May Result in Dismissal of Charges

Joshua Topolsky of the Engaget blog reports that the Minnesota Supreme Court will hear arguments about whether the State of Minnesota and/or the manufacturer of the Intoxilyzer 5000 machine must turn over the source code that operates the Intoxilyzer equipment.  In discovery motions, the defense had demanded the source code but both the State of Minnesota and manufactgurer CMI corporation have refused to release the code.

Lower courts in Minnesota and elsewhere have dismissed charges in DUI cases because the source code was not released, although other courts have refused to dismiss cases on this basis.  Now, it appears that the Minnesota Supreme Court will be making law on this subject – a hearing is scheduled for September 19th.

Has anyone had any success with the "source code" argument here in Georgia?  If so, write us with the details.

When is a Plea Bargain Most Likely?

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:

  1. Car Accidents
  2. Blood Tests
  3. Breath Tests
  4. Urine Tests
  5. Video showing an impaired client
  6. State patrol hotline calls about our client
  7. Client or passenger statements tantamount to confessions of being DUI
  8. Rudeness & belligerence towards police officers
  9. The county the DUI arrest occurred
  10. 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.

Intoxilyzer 5000 Pre-trial Discovery Motion Posted

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.



Can I take care of my DUI fine without appearing in Court?

I am well known in Cobb County and it would be very embarassing for me if word of my DUI got out.  I’m not convinced that I was really guilty, but I would rather just pay the fine and be done with this mess.

Is there any way to take care of my Cobb County DUI without having to appear in Court. If not, is there any way to schedule my hearing first thing in the morning or in a Judge’s office?

Answer: All DUI’s must be disposed of in open Court. If you do not want to personally appear, you can give your lawyer a Power of Attorney to handle your plea in your absence, including paying your fine and getting your probation set up. However, the first DUI sentence often requires the Defendant to serve a minimum of 24 hours in jail.

Parental notification

I am 19 and got arrested for DUI. Is the judge going to tell my parents about this?

Answer:  That’s up to the judge.  The law does not require it, but many judges will prefer that you have your parents with you when you finish your case, especially if you are still living at home and depending on your parents for food and shelter, and usually payment of the fine.

City Court or County Court – does it make a difference?

I got stopped for DUI by a City of Marietta police officer. I heard that I can ask for my case to be heard in Cobb County instead of the City of Marietta Court. What’s the difference and what do you recommend?

There are many factors to consider when you are trying to decide whether  to take your case to the State Court of complete it in the City court and you must talk to an experienced attorney who is familiar with each court in order to make the correct decision.  Briefly, if you want to enter a guilty plea to the charge, you may want to enter into plea negotiations with the City Court. If you want to contest your case and have a jury trial, then your case must be transferred to the State Court as the City Court usually does not have the authority to conduct jury trials.

Had too much to drink – is there any hope

I got arrested for DUI and I am guilty. I was drinking at a bar for several hours. What is going to happen to me? Is there anything you can do for me?

Answer: Yes, it is important to know your rights when negotiating a plea, and how you may avoid jail time.  Remember, the Prosecutor and Judge are not there to advise you of  your rights, and they frequently will recommend that you have an attorney to make sure that you are apprised of the consequences of your plea.