An Introduction to Georgia Traffic & DUI Law
Posted by Robert Horlick in DUI Consequences, GA DUI Law, Traffic and Other Crimes on 07. Dec, 2009 | 0 Comments
Types of DUI under Georgia Law 
There are two types of Driving Under the Influence (DUI) charges under Georgia law—Per Se violations and Less Safe violations. Per Se violations involve an unlawful Blood Alcohol Content (BAC) or the detection of impairing drugs in your system. Blood Alcohol Content is the ratio of blood to alcohol in a person’s system.
In Georgia, the level of BAC that is considered unlawful for drivers 21 and over is 0.08 percent or above. In this situation, the prosecution will not have to prove that your driving was impaired or that your driving was unsafe. Your BAC is sufficient evidence for a conviction.
If your BAC is between 0.05 and 0.08 percent, the prosecution may still try to convict you of a DUI charge. In this situation, the prosecution will have to prove that you were a “less safe” driver.
Evidence the prosecution may try to introduce to prove that you were a “less safe” driver could include officer testimony that your speech was impaired, your eyes were bloodshot, there was the scent of alcohol in the car, or that you performed subpar during field sobriety testing. This evidence will be used to convince the judge or jury that you were under the influence of drugs or alcohol to such a degree that your driving was impaired and you were a “less safe” driver.
This type of evidence is purely subjective, as there are many reasons why a person not impaired by drugs or alcohol could exhibit these traits. A good DUI attorney will recognize this weakness of the prosecution and represent his client accordingly.
If you are a driver of a commercial vehicle in Georgia, a BAC of 0.04 percent is unlawful and constitutes a per se DUI conviction.
If you are below the age of 21, a BAC of 0.02 percent is unlawful and constitutes a per se DUI conviction. This is part of Georgia’s “Zero Tolerance” approach to underage drinking; any amount of alcohol in the system of someone under the age of 21 constitutes a violation.
Traffic Stops and Probable Cause
In order for an officer to stop you and request that you submit to BAC testing or field sobriety tests, the officer must have an articulate probable cause for doing so. This is a protected right of the individual under the Fourth Amendment of the United States Constitution and the Constitution of the State of Georgia. Police officers have a duty to perform searches and seizures when they believe that a particular crime has been committed, or is in the process of being committed, but the performance of these actions must be justified by reasonable probable cause.
Probable Cause To Suspect Driver is Under the Influence
In the context of a DUI investigation, if an officer pulls over a driver for committing a traffic violation (such as failing to come to stop at a red light, swerving, or failing to signal) and smells alcohol on the driver’s breath or sees alcohol bottles inside the car, this is sufficient probable cause to believe that the driver may be impaired.
The officer may then proceed to question to driver about his or her recent alcohol consumption, request that the driver submit to field sobriety testing, and/or submit to BAC testing in the form of a breathalyzer or blood test*. However, the officer must observe behavior or circumstances in excess of the traffic violation for which the person is being pulled over. Race and gender can never be considered as factors in determining probable cause.
Probable cause may also be established by circumstantial evidence. An example of this type of evidence is if someone sees a driver commit a hit-and-run and calls the vehicle information in to the police. If the police then locate and stop that driver, they have probable cause to begin investigating even though they themselves did not witness the accident.
Another source of probable cause is information obtained over the police scanner or information received from a witness. Either of these situations is enough to give an officer reasonable probable cause if he locates the driver in question.
Search and Seizure Law in Georgia
Also under the Fourth Amendment is an individual’s right to be free from unlawful search and seizure. This right includes an individual’s right to not be subjected to a search without a warrant.
However, if in the course of being pulled over, an officer forms probable cause that a driver is under the influence of drugs or alcohol, in certain situations, probable cause may extend to a full search of the vehicle without the requirement of a warrant.
If the officer did not have reasonable probable cause to search driver or the vehicle and performed a search without the driver’s consent and without a warrant, the search is invalid under the Fourth Amendment. In this situation, any evidence that the officer may have obtained from the search should be inadmissible and excluded as evidence in court.
If you or someone you know has…
If you believe that you have experienced an illegal search and seizure, it is in your best interested to hire an experienced DUI defense attorney. Don’t let illegally obtained evidence be used against you. A good DUI defense attorney is knowledgeable about the nuances of the law and can insure that your rights are upheld in court. Contact Horlick Law Firm immediately to discuss your case.
Field Sobriety Tests
Once you have been pulled over by an officer and are suspected to be under the influence of drugs or alcohol, there are several field tests that an officer may request that you perform to determine if you are intoxicated. A few examples of standard field sobriety tests are as follows:
- Walk and turn
- One-legged stand
- Horizontal Gaze Nystagmus (HGN)
- Preliminary Breath Test
Field sobriety tests are used to determine whether the officer has probable cause to make a DUI arrest. Even if you “pass” the field sobriety tests, an officer may still request that you submit to a chemical test to determine your BAC. This test could consist of testing your breath to determine the BAC. The breath test may preliminarily conducted at the site of the stop via a PBT device.
A blood or urine test could also be requested by the officer. A blood test will provide a more accurate BAC level than the road-side breathalyzer. The urine test will indicate the presence of any narcotics in the driver’s system. Both of these tests will require that you go into the station or to a hospital with the officer for testing. Remember, also, that in Georgia, you have the right to request an additional test of your choosing at your expense.
Refusal to Submit to Field Sobriety or BAC Tests
If a driver refuses to submit to field sobriety tests, the officer may then request that he submit to a chemical BAC test if the officer believes he has sufficient probable cause to suspect that the driver is impaired. If a driver refuses to submit to a chemical test and the officer has probable cause to suspect that the driver is intoxicated, this could lead to a DUI arrest. The officer has the discretion to arrest after the driver’s refusal if the officer believes the driver to be impaired.
Breath, Blood and Urine Tests
Blood Alcohol Tests can consist of testing a person’s breath or blood for a determination of the current BAC. Breath tests can be conducted roadside via the use of an officer’s PBT machine. A urine test can be requested to determine the presence of alcohol or any narcotics in the driver’s system. This device..
Suspension of License and Administrative Hearings
If asked to take a chemical test and you refuse, or if you submit to testing and “fail,” the arresting officer will file form 1205 to begin the process to initiate the administrative suspension of your license. Remember, this is SEPARATE from your criminal case. You only have 10 BUSINESS DAYS after your arrest to request an administrative hearing to keep your license. If you do not request a hearing within 10 business days, your license will be automatically suspended 31 days after the date of your arrest.
Depending on your record, and whether a prior refusal exists, this suspension may last from one to five years. And if you didn’t refuse, but you took the test and “failed,” you may be able to apply for a 30-day work driving permit. However, if you do not request a hearing within ten days and you refused chemical testing when arrested, you will be not be allowed a limited work driving permit – even if it is your first DUI offense.
In many circumstances, you may be eligible for a limited work driving permit, and if you complete your DUI Risk Reduction course and pay a reinstatement fee, to apply for early full reinstatement of your license after only 120 days. Remember, if your license is suspended administratively because your BAC was over the legal limit, the amount time that your license was suspended will be credited against any mandatory license suspension periods if you plead guilty or are convicted of DUI. You cannot get this credit, however, if you refused to submit to chemical testing and are subsequently found guilty of DUI in criminal court.
THIS ARTICLE IS NOT INTENDED TO BE COMPREHENSIVE OR PROVIDE LEGAL ADVICE.
GEORGIA DUI AND TRAFFIC LAW IS COMPLICATED AND ALWAYS CHANGING.
PLEASE CONTACT HORLICK LAW FIRM IMMEDIATELY TO DISCUSS YOUR SPECIFIC CASE.
Your Rights When Stopped For DUI in Georgia
Posted by Robert Horlick in GA DUI Law, Your Rights When Stopped on 07. Dec, 2009 | 0 Comments
If your vehicle is stopped by a police officer in Georgia, it is because he or she suspects you of having violated the law. This means that from the second you are stopped, and often before, you are under suspicion for criminal activity.
As the blue lights flash and you pull your vehicle off to the side of the road, remember, this is not a casual police-citizen encounter. This is not just a friendly chat. The officer has pulled you over. He already has his or her suspicions, and may already have what he or she believes to be probable cause to ticket or arrest you for the violation they allegedly observed. But they are always looking for more.
As a licensed driver in Georgia, you must know your rights and keep this in mind when speaking with the police. Whether or not you have violated the law, the police are always looking for clues that you might have. Be polite, and be respectful, but remember:
You are under no obligation to give them more fuel for the fire. Especially in cases where a driver is suspected of Driving Under the Influence (DUI), the officer looks to the driver to make his or her job easier, to make admissions or establish probable cause for arrest (that he or she may not have independently observed) in a number of ways.
REMEMBER:
You have the right against self-incrimination.
You have the right to remain silent.
Anything you say or do can and will be used against you.
Even before your rights are read to you, it is your duty as a conscientious citizen and driver in the State of Georgia to be aware of them.
If you are suspected of Driving Under the Influence, it is crucial that you keep this advice in mind.
It is the officer’s job to establish probable cause for arrest, NOT YOURS.
Though there are consequences for refusing certain tests (discussed more thoroughly here), there may also be consequences for performing them. It is your choice to make, and your choice should be an informed one.
If you have any questions about this, or your case specifically, please contact Horlick Law Firm immediately for a free case evaluation and consultation.
About Horlick Law Firm: Zealous Advocacy and Experienced DUI and Criminal Defense throughout Georgia
Posted by Robert Horlick in GA DUI Law on 07. Dec, 2009 | 1 Comment
Welcome to http://atlantaduiattorneygeorgia.com, the online presence of Atlanta DUI and Criminal Defense firm Horlick Law Firm. Atlanta DUI Attorney Robert S. Horlick provides vigorous and experienced representation throughout Georgia to clients charged with DUI and all criminal matters. If you are facing any criminal charge or probation matter, contact Horlick Law Firm immediately to discuss your case. And if you are charged with DUI, your clock may be ticking fast — in many circumstances you only have 10 days from the date of your arrest to request a hearing or else your license will be suspended.
Atlanta DUI and Criminal Defense Attorney Robert S. Horlick of Horlick Law Firm has represented thousands of clients charged with crimes ranging from traffic offenses to DUI to all misdemeanors and felonies in the trial process in Atlanta, all surrounding areas, and throughout Georgia. He works diligently and consistently for his clients, and provides zealous advocacy for all. At Horlick Law Firm, you are not just a number. Your rights and your livelihood deserve protection by someone with compassion and experience.
Probable Cause for Georgia DUI Arrest?
Posted by Horlick Law Firm in GA DUI Law, Probable Cause on 07. Dec, 2009 | 0 Comments
What is Probable Cause?
Probable Cause is the reasonable belief that one has committed a crime.
REMEMBER: probable cause is subjective, and does not equal guilt.
If you have been arrested and charged with Driving Under the Influence (DUI) in any city or municipality of the State of Georgia, it is because the arresting officer believed he or she had probable cause to do so. Probable cause for arrest may be established in a number of ways.
Probable Cause for the Stop: If you are pulled over, A police officer MUST HAVE probable cause to stop your vehicle. If there was no probable cause for the stop, any observations, tests, or charges that stem from that unwarranted stop may be suppressed and a conviction for DUI cannot be established.
Probable Cause for DUI Arrest: Even if probable cause to stop your vehicle is established, there may not be probable cause to arrest for Driving Under the Influence.
Many times, a driver is pulled over for an alleged traffic violation (e.g., speeding, following too closely, failure to maintain lane, reckless driving, etc.), and as a result of the officer’s “observations” upon speaking with the driver, and interpretations of his or her responses and any field sobriety test results, he or she is arrested and charged with Driving Under the Influence.
REMEMBER: Even if an officer believes he or she has probable cause to to stop a vehicle for a traffic violation, that probable cause is separate from, and at most one factor in, the officer’s supposed probable cause to arrest a driver for Driving Under the Influence.
Also, The factors that may lead an officer to arrest a Georgia driver for DUI are very often insufficient to sustain a conviction for DUI. It is critical, then, that Georgia drivers understand their rights and the consequences of their decisions and responses when facing such serious suspicions.
If you have any questions about your rights or your case, please contact Horlick Law Firm immediately for a free case evaluation and consultation.
Georgia DUI – Per Se
Posted by Robert Horlick in DUI "Per Se", GA DUI Law on 06. Dec, 2009 | 0 Comments
Breathalyzer DUI Blood Alchohol Test
In the State of Georgia, a driver aged 21 and over can be charged with Driving Under the Influence (DUI) Per Se, in violation of O.C.G.A. 40-6-391, if there is probable cause to believe he or she drove or was driving or in actual physical control of a moving vehicle, with an alcohol concentration of 0.08 grams or more at ANY time within three (3) hours after driving from alcohol consumed before such driving ended.
A driver may also be charged with Driving Under the Influence Per Se, in violation of O.C.G.A. 40-6-391, if he or she drives or is in physical control of a moving vehicle while there is any amount of marijuana or a controlled substance in the driver’s blood and/or urine. This is regardless of whether or not alcohol is present in the driver’s blood or breath.
Unlike the charge of Driving Under the Influence (DUI) “Less Safe” in Georgia, which only requires that one drive or be in physical control of a moving vehicle while under the influence of alcohol or drugs, to the extent that it was “less safe” for that person to drive — a charge based largely on the opinion of the arresting officer – the charge of Driving Under the Influence Per Se is rooted in the scientific results of a Breathalyzer test, and/or the results of a blood or urine test that indicate the presence of alcohol or other controlled substances.
Georgia’s DUI Laws are different and understandably more stringent for drivers of commercial vehicles and drivers under the age of 21. Those differences are discussed here and here.
If you have been charged with a DUI in Georgia, contact Horlick Law Firm immediately for a free case evaluation and consultation.
