Experienced Columbus DUI Attorney
Let Us Help You Answer some of Your Questions
Why hire a DUI attorney?
Defending charges of DUI has become somewhat specialized practice of law, and Ted Morgan Law dedicates a significant part of his practice to studying the techniques, strategy and latest legal developments in this area. Some attorneys accept representation of DUI cases for the quick fee and a guilty plea. WE DO NOT. We guide you through the legal process using all the facts and particular circumstances of your case and apply a matrix of strategy and legal defenses to help defeat the charge of DUI.
What is the 30 day deadline?
If you have been arrested for DUI in the State of Georgia, you have thirty (30) days to file an appeal with the Georgia Department of Driver Services or else your driver’s license is automatically suspended for one (1) year 45 days after you received the Form 1205. New Law: A change in GA law now requires a filing fee of $150.00 when you file your DDS Notice of Appeal & Request for Hearing. If your arrest date is before July 1, 2017, the rule was 10 business days; that rule had been changed drastically, and one part of the change now provides 30 days to file. But do not be fooled, there are important decisions one must make BEFORE the 30 day deadline.
If you are arrested and charged with driving under the influence of alcohol in the State of Georgia, the 30 days following the date of your arrest is a crucial period of time. If you fail to follow the requisite steps, GA Dept of Driver Services (DDS) WILL AUTOMATICALLY SUSPEND YOUR DRIVER’S LICENSE before you ever appear in Court or have a chance to defend the charges against you. It is a separate, administrative process brought by GA DDS. While you may still have a chance to beat the DUI charge, your license will be administratively suspended for a period of time, possibly one (1) year, depending on the facts & your age with limited ability to shorten the suspension. To avoid suspension of your driver’s license, a letter requesting a hearing must be delivered to the Georgia Department of Driver’s Services (“DDS”) within thirty (30) days of your arrest, and failure to do so causes an immediate suspension 45 days after arrest and which oftentimes is temporarily irreversible. If the arrested driver does not appeal the suspension within thirty (30) days, suspension becomes effective 45 days from the date the DDS Form 1205 is issued to the driver by the arresting officer. The appeal must be accompanied by a $150 filing fee, and DDS has no authority to waive for indigency. The date on which the appeal is postmarked, rather than the date on which it is mailed, is determinative of its timeliness. And, a “family emergency” is not considered a sufficient reason for an untimely filed appeal.
The Administrative Case: Georgia Department of Driver Services (DDS)
The Administrative License Suspension (“ALS”) is a separate animal from the criminal charge of DUI and oftentimes operates independently of the criminal process. Georgia DDS can and will suspend your driving privileges before the criminal charge is resolved absent proper and competent legal representation. If arrested for DUI in Georgia, the Georgia Department of Driver Services (DDS) opens a separate legal case against you if (A) you refused to submit to the official state test of blood, breath, or urine, OR (B) if you submitted to and have a breathalyzer (Intoxilyzer 5000) result of 0.08 or higher (age 21 or more), .04 or higher (if operating a commercial vehicle), or .02 or higher (if under age 21). DDS will attempt to suspend your license for 1 to 5 years. This means you will lose your drivers license PRIOR to any plea agreement, investigation of the charges against you, or other disposition of the charges against you, including any trial (in most cases). The suspension is automatically entered against you unless you file an “appeal” letter within 30 days after the date of arrest. Filing an appeal (a.k.a. Request for Hearing) buys you some time and possibly, with the help of a good DUI Attorney, prevents any suspension from occurring. Yet another reason to call a DUI attorney…to file your appeal letter for you.
What is a 'per se' DUI?
“Per se” (pronounced “per say”) means by statute the facts of your case constitute a violation of law. Under DUI laws in most any state, it means the results of the state-administered test of your blood, breath or urine yield a blood-alcohol content exceeding the state law threshold for legally operating a motor vehicle on the highway.
- For driver’s 21 years old and over, a driver found with blood-alcohol concentration (“BAC”) of greater than or equal to 0.08g/L is deemed in violation of Georgia DUI laws, aka “per se” DUI.
- For drivers under 21 years of age, a per se DUI arises with BAC greater than or equal to .02 g/L.
- For Commercial Vehicle licensed Drivers, a per se DUI arises with BAC greater than or equal to 0.04g/L.
What is a 'less safe' DUI?
In most any state, “less safe” means the police officer, after observing various factors surrounding your driving, conduct, speech and roadside Field Sobriety Tests, believes your intoxication renders you “less safe” to drive. The Officer will testify he observed bad (unsafe) driving, sluggish mannerisms, unsteady walk, slurred speech, bloodshot and/or glassy eyes, and anything else you do at the scene which makes you look intoxicated. Conviction under this prong of the law does NOT require a BAC test result.
What are your rights at the scene?
If you are driving a motor vehicle on the public roads in the State of Georgia, then the city/county/state police officers have fairly broad discretion in requesting that you stop your vehicle for questioning and investigation of certain irregular driving and/or other traffic offenses. Here is a broad-brush view of your rights after being “stopped” by a police officer who observes some kind of erratic driving, a violation of Georgia Rules of the Road (ran a red light), or other traffic stop.
What is a Field Sobriety Test and am I obligated to submit to the tests?
Motorists suspected of driving under the influence are commonly asked by police officers to perform one (1) or more field sobriety tests. The police officer uses the field sobriety tests to assess whether a motorist is under the influence of alcohol or drugs. The driver’s performance on these field tests oftentimes serves as the foundation for the probable cause to support the officer’s arrest for DUI. These same field evaluations and observations during field sobriety testing oftentimes become part of the State’s evidence in support of a conviction for DUI at trial.
In fact, the Georgia Peace Officer Standards and Training Council (“POST”) has adopted only three (3) field sobriety tests as the exclusive field tests taught by POST to Georgia law enforcement officers. These tests, sanctioned by the National Highway Traffic and Safety Administration (“NHTSA”) are as follows:
- (1) Walk and Turn Test;
- (2) the One Leg Stand Test; and,
- (3) the Horizontal Gaze Nystagmus (HGN) Test.
In addition, an Alc0-Sensor, a portable breath testing device, has traditionally been used by Georgia Police Officers in determining whether or not a motorist is under the influence of alcohol. Essentially, the Alco-Sensor serves as an initial alcohol screening test while the motorist is roadside. Unlike the numerical results yielded from the Intoxilyzer 5000, the numerical results from the Alco-Sensor are not admissible at trial as evidence of the amount of alcohol in a person’s blood and its numerical reading has been rejected at a probable cause hearing by the Georgia Court of Appeals. The majority view holds that the Alco-Sensor numerical results may not be used as evidence of the amount of alcohol or drug in a person’s blood however the officer may testify whether the test was “positive” for alcohol or whether the motorist “passed” or “failed” the Alco-Sensor Test. As explained below, the Field Sobriety Tests and the Alco-Sensor are “voluntary” and therefore the Georgia motorist cannot be required to submit to any one or more of these tests prior to being arrested for DUI.Many well-respected experts contend these tests are designed for failure. For example, the “one-leg stand” test generally requires the driver to raise one leg, keeping the raised foot approximately six inches (6”) off the ground, foot parallel to the ground, keeping both legs straight and arms at sides, keeping eyes on the elevated foot and counting out loud, “1001, 1002, 1003” and so on, until told to stop. This task should be completed for thirty (30) total seconds. Deficiency clues include if the driver sways while balancing, uses arms to balance, hops, or puts the raised food down prior to being told to do so.
Is the driver required to submit to field sobriety tests?
No, unless and until the officer informs you that you are being arrested for DUI, field sobriety evaluations are voluntary. This includes the infamous hand-held alcohol Alco-Sensor, screening test (a/k/a Portable Breath Test) which most officers carry and will ask you, “will you blow into the PBT”. DO NOT CONFUSE THE PBT WITH THE INTOXILYZER 5000 BREATH ALCOHOL TESTING INSTRUMENT WHICH IS NOT PORTABLE AND WHICH TYPICALLY IS NOT ADMINISTERED ROADSIDE.
What is a legal 'stop' by the police officer? Is the driver required to stop?
A driver is pulled over where there is no legitimate traffic offense or violation and no other evidence of DUI sufficient to form a reasonable articulable suspicion. See, Muhammad 304 Ga. App. 230 (2010); Parke, 304 Ga. App. 124 (2010).
- The police officer pulls up to the parked car and hits the blue lights or otherwise indicates the driver is not free to leave without a reasonable articulable suspicion of a crime.
- A driver is pulled over based on an uncorroborated tip.
- An investigative detention based upon a hunch or a mere suspicion.
- A road block stop that is unreasonable under applicable law.
Is the driver required to stop?
YES, generally, a person has the right to be left alone unless there is a legitimate public safety or national security reason to disturb him. In addition, there are three (3) levels of police-citizen encounter:
- (1) the friendly or consensual
- (2) investigative detention; and,
- (3) arrest.
The Fourth Amendment applies only to the last two (2) of these three (3) police-citizen encounters. It is the police power of the state, to protect its citizens and exercise police power for the protection and betterment of its citizens, which gives an Officer the right to patrol the public streets and stop a private citizen driving a vehicle.
What is an illegal stop (or bad arrest) by an officer?
The police officer must have probable cause that a crime is about to be committed or is being committed, and generally speaking, probable cause means there is some evidence of each element of a crime.
In DUI cases, probable cause means there is some evidence of (a) driving and (b) impairment due to alcohol or drugs. Probable cause is not satisfied by a mere traffic accident plus the odor of alcohol. Neither is probable cause satisfied where there is a mere admission of drinking (there must be some evidence of excessive drinking).
And finally, in DUI cases, there must be some evidence of real driving impairment by alcohol or drugs. See, Goode 298 Ga. App. 749 (2010); Burke 298 Ga. App. 621 (2010); Damoto 302 Ga. App. 181 (2010); Encinas 302 Ga. App. 334 (2010).
In DUI cases, any evidence seized during an illegal detention (stop) and/or any statement made by the driver during an illegal detention must be suppressed (excluded) from any hearing or trial of the DUI.
What does 'implied consent' mean?
Georgia law provides that every licensed driver in the State of Georgia, by accepting the privilege and license to drive, gives the State of Georgia (e.g. the police officer) the right to take a sample of his/her blood, breath or urine for purposes of determining if the blood alcohol content exceeds the state legal limit for being under the influence of alcohol while driving. Hence the name, “implied” consent to the test(s).Correspondingly, State law provides you, the driver, to have an independent test of your blood, breath or urine tested at a proper facility (e.g. local hospital) at your own choosing (if you agreed to allow the officer to take the state’s test as well. See below, “WHAT IS A REFUSAL?”, And how the “refusal” impacts your right to an “independent test”.
What test(s) of blood, breath or urine are you required to give the Officer? Is the driver required to submit to a test of the driver’s breath, blood or urine to determine if the driver is under the influence of alcohol or drugs?
ANSWER: Yes and No
This is commonly referred to as “Implied Consent” under DUI law. Georgia’s Implied Consent statute requires that a person arrested for DUI must submit to a state-administered chemical test when requested to do so by a law enforcement officer acting within the scope of his lawful duties. However, a DUI-defendant is not required to submit to testing if he or she has not been properly informed of his implied consent rights, and generally, the officer must place the driver under arrest prior to giving the implied consent advisement and/or requesting a test.The key here is (a) a valid arrest, and (b) whether the officer complied with Georgia statutory mandate which requires that at the time that the officer requests that the DUI-defendant take a state-administered test, a specific advisement must be read to the defendant. Georgia law no longer requires that the officer read the “exact language”, but rather the implied consent is subject to the officer reading the proper advisement at the right time, allowing a free choice, and facilitating an independent test if requested by the driver.
What is a 'refusal' DUI?
The biggest impact of the “refusal’ to submit to the police officer’s request is probably the immediate administrative suspension of one’s driver’s license.A Georgia driver has the right to “refuse” and not allow the officer to administer tests of the driver’s breath, blood or urine. However, the “refusal” can have a significant adverse impact on the administrative license suspension case as well as the criminal DUI case. Refusal means an automatic twelve (12) month administrative suspension of one’s driving privileges in the State of Georgia by the Department of Driver Services without a right to a limited permit, barring a dismissal or acquittal from the charge of DUI in criminal court. Oftentimes, the “refusal” will be admitted into evidence in the trial of the DUI case. Again, the key is whether the officer properly administered the implied consent warning and whether there are any legal challenges which will cause the trial judge to exclude the results of the test or the “refusal” from evidence in the trial.In general, the Implied Consent Advisements must be given at the time of arrest, which is usually at the site of arrest (e.g. roadside). Georgia law, O.C.G.A. §40-6-392(a)(4) requires that a person be advised of his implied consent warnings “at the time of arrest.”As a general rule, an arrest for DUI is mandatory before Implied Consent Advisements can be given and a test of breath, blood or urine demanded by the officer. Current Georgia case law provides one exception: when there is a traffic accident resulting in a serious injury and there is probable cause to arrest the driver for DUI, a physical arrest need not occur before the Implied Consent Advisement is read. However, where there is no accident resulting in a serious injury, an arrest must precede the reading of the Implied Consent Advisements. The need for implied consent is triggered at the point that a driver-suspect is not free to leave and a reasonable person in that position would not believe that the detention was temporary. In sum, while an arrest for DUI is mandatory before Implied Consent Advisements may be given and a test demanded, and while Implied Consent Advisements must be given at the time of arrest, Georgia case law provides many exceptions which relieve the officer from making the arrest prior to the Implied Consent Advisement and/or giving the advisement at the site of arrest.
What is the Intoxilyzer 5000, and how many breath test(s) should the police take when you are arrested?
Georgia law now requires that any State-administered breath test taken on an Intoxilyzer 5000 will consist of two (2) breath results or samples. Therefore, each State-administered test will have two (2) sequential breath samples as part of the test. Also, Georgia law now requires that the two (2) samples be no more than 0.020 percentage points different between the samples; otherwise, neither test is admissible at trial.Since Georgia law now requires two (2) breath samples that correlate within 0.020 percentage points between the samples, and because the State of Georgia bears the burden of proof at trial when relying on breath samples for a DUI conviction, breath sample cases are ripe for dismissal and/or acquittal due to current legal challenges moving through the courts in several states, including Georgia, challenging the accuracy and testing method of the Intoxilyzer 5000.
What rights does a driver have to request a second, independent test of his or her own choosing?
Georgia’s Implied Consent law requires the officer to inform the driver that after first submitting to the required state test, the driver is entitled to additional chemical tests of blood, breath, urine or other bodily substances at the driver’s own expense and from qualified personnel of the driver’s own choosing. Just as the State of Georgia has a legal right receive the sample of the driver’s blood, breath or urine, the Georgia driver has a right to an independent test of his blood, breath or urine if so requested. Any failure to reasonably accommodate the driver’s request (or any interference by an officer) in obtaining an independent test will result in suppression (exclusion) of the State’s test results. For example, where the defendant driver was a few dollar’s short of the amount required by the hospital to perform a test, and the officer refused to allow the driver to negotiate another form of payment or telephone relatives to obtain assistance in paying for the test, the Georgia Court of Appeals held that the driver’s right to an independent test had been violated and the State’s test results were suppressed. Similarly, where the officer, 30 minutes after taking the State’s breath test, refused when the defendant requested an independent test, the Court held that the police had violated the defendant’s right to an independent test and the State’s breath test was suppressed.
If a Georgia driver refuses to provide the police officer with its State-administered test of blood, breath or urine, and the driver is arrested for DUI nonetheless, does the DUI driver nonetheless have a right to an independent test of his blood, breath or urine at a facility of his own choosing?
A DUI defendant does not have the right to refuse a police-administered test and then afterwards demand a right to an independent test of his or her own choosing. See, Lufburrow v. State, 206 Ga. App. 250 (1992). Subsequent Georgia cases extend this rule to the DUI driver who submits to two (2) breath test attempts, but offers a blood test, after the breath Intoxilyzer 5000 fails to report a proper result. It is important to understand the distinction here. The officer’s unjustified failure or refusal to allow a DUI defendant to exercise his right to an independent test will render the State-administered test inadmissible at the trial. This includes the officer’s refusal to transport the defendant to a hospital of his own choosing for a blood test even where the State did not take blood, and even when a blood test is obtained at another hospital. See, Joel v. State, 245 Ga. App. 750 (2000). Factual disputes over whether the driver actually requested an independent test are common and oftentimes resolved by reviewing the video of the “stop and arrest” (most if not all DUI traffic stops in the State of Georgia are videotaped).
Is the Miranda Warning required when a Georgia driver is stopped by a police officer?
Generally speaking, the Miranda Warning is not required when an officer conducts preliminary questioning or field sobriety evaluations. McDevitt v. State, 286 Ga. App. 120 (2007). Miranda is invoked when a person is under arrest. As discussed above, whether the driver is under “arrest” is fact-sensitive. The legal question is whether a reasonable person would have believed that he or she was not free to leave. It is an objective test, asking whether the reasonable belief of an ordinary person under such circumstances, and not the subjective belief or intent of the officer, would have believed he or she was permanently in custody. [Georgia courts have held that Miranda Warnings are not required before the officer makes a request that the driver submit to an Alco-Sensor “screening test” since the defendant was not yet in custody.] [Generally speaking, a motorist stopped for a traffic violation is not “in custody” and is therefore not entitled to Miranda Warnings prior to formal arrest.] Again, the test for determining whether the driver is “in custody” after a traffic stop is an objective test to be determined from the position of the driver. Even where the officer believed but did not communicate to the suspect that minor traffic violations could result in an arrest, the officer’s belief was not the test and had no bearing upon whether or not the suspect was in custody. The test is whether a reasonable person in the defendant’s position would have thought that the officer’s detention was permanent and not temporary. For example, a motorist stopped by an off-duty officer, for DUI, and not allowed to leave the scene pending arrival of an on-duty officer was determined to have been under arrest at the scene of the initial stop, and the failure of the officer to provide Miranda Warnings may result in suppression of admissions and conversations between the driver and the off-duty officer. Whether a driver is in “custody” following a traffic stop raises complicated statutory and constitutional questions beyond the scope of this article.
Are you under the age of 21 and arrested for DUI in Georgia?
- Did you know drivers under age 21 are deemed “per se” DUI if BAC equals or exceeds 0.02g/L?
- Did you know drivers under age 21 cannot enter a plea of “nolo” to evade the DUI charge?
- Did you know drivers under age 21 w/ BAC equal to or greater than 0.02g/L face minimum & mandatory 6-month suspension of driver’s license without a right to a limited permit (a.k.a. “no early reinstatement”)?
- Did you know drivers under age 21 w/ BAC equal to or greater than 0.08g/L face minimum & mandatory 12-month suspension of driver’s license without a right to a limited permit?
- Did you know drivers under age 21 w/ BAC equal to or greater than 0.02g/L face minimum & mandatory 6-month suspension of driver’s license without a right to a limited permit even if the charges are reduced to “reckless driving”, or if found guilty of underage purchase of alcohol?
What are the penalties for DUI in Georgia and Alabama?
Georgia DUI Penalties
If convicted of DUI in the State of Georgia….
FIRST OFFENSE –If this is your first offense within a ten year period, the following applies:
- Fine – $300.00 -$1000.00 plus any statutory surcharges.
- Jail – 24 hours minimum; 10 days to 12 months maximum.
- Community Service -The law requires a minimum of 40 hours of community service unless you are under 21 years of age in which case you must do at least 20 hours. The actual time is set by the Court.
License Suspension – For a first offense within a five year period you will lose your
license as follows:
- If you are 21 or over, your license will be suspended for one year. You will be able to get your license back at the end of 120* days if you have completed an alcohol/drug risk reduction course (DUI school) and paid the appropriate reinstatement fee. During those 120 days, you will be able to get a limited driving permit.
- If you are under 21, your license will be revoked for either 6 months (under 0.08 blood alcohol level) or 12 months (0.08 or higher) and no limited permit is allowed.
- Different rules if DUI supported by drugs in your system.
- DUI School –You must complete DUI School to have your driver’s license or privilege to drive in Georgia reinstated. Go to the website at https://dds.georgia.gov/to determine which out of State program will be accepted by Georgia.
SECOND OFFENSE –If this is your second offense within a ten year period, the following applies:
- Fine – $600-$1000 plus any statutory surcharges.
- Jail – 90 days to 12 months, all except three (3) days of which may be suspended, stayed, or probated. As with a first DUI within a five year period you must do twelve months probation less any jail time.
- Community Service – The minimum community service is thirty days (240 hours).
License Suspension – If this is your second offense within a five (5) year period you
will lose your license as follows:
A “second-in-five” DUI ( 2nd DUI in 5 years) means your GA
driver’s license will be suspended for three years. The first twelve
(12) months is often referred to as “hard” because no limited
permit or hardship license will be granted. Ignition interlock limited
permit is required for 6 months. Under the current law, for a second or
subsequent conviction within a five year period, an ignition interlock
device must be installed on all vehicles registered to the offender with
Under 21 Years of Age
- The “under 21” driver convicted of a “second-in-five” DUI may have their driver’s license reinstated after just one year. However, OCGA Sec. 40-5-63 (See revised Code Section 40-5-57.1 of House Bill 385) may say otherwise. Section 40-5-63 requires an 18 month suspension for second in five DUI convictions.
- A “second-in-five” DUI ( 2nd DUI in 5 years) means your GA driver’s license will be suspended for three years. The first twelve (12) months is often referred to as “hard” because no limited permit or hardship license will be granted. Ignition interlock limited permit is required for 6 months. Under the current law, for a second or subsequent conviction within a five year period, an ignition interlock device must be installed on all vehicles registered to the offender with limited exception.
- Automobile Tags – The license plates of all vehicles registered to the offender will be confiscated. No new plates will be issued to the offender until such time as he/she obtains a limited permit or full reinstatement of driving privileges.
- Publication of Your Photo – You have made the paper! Your photograph, name and address, date, time, & place of arrest will be published in your local newspaper. You will be charged $25.00 for this notice.
- DUI School – You must complete DUI School to have your driver’s license or privilege to drive in Georgia reinstated. Go to the website at http://www.dds.ga.gov to determine which out of State program will be accepted by Georgia.
Alabama DUI Penalties
If convicted of DUI in the State of Alabama….
- Imprisonment – Up to 1 year in municipal or county jail (no minimum mandatory sentence)
- Fine – $500 – $2,000, plus an additional $100 fine assessed for Impaired Drivers Trust Fund (§32-5A-191.1)
- Mandatory – 90-day license suspension, DUI school attendance
- Imprisonment – 48 consecutive hours, up to 1 year, or not less than 20 days community service
- Fine – $1,000 – $5,000, plus an additional $100 fine assessed for Impaired Drivers Trust Fund (§32-5A-191.1)
- Mandatory – Not less than 48 hours consecutive imprisonment, or community service of not less than 20 days
- DL Revocation – 1 year