Atlanta DUI Attorney Robert Horlick, Horlick Law Firm

police-car-head

Traffic Offenses in Georgia are Misdemeanors, punishable in most cases by up to $1000 fine and up to 12 months in Jail. It is advisable to hire an attorney any time you have to attend court. In addition to the consequences one can face from these tickets by the Court, there are other important considerations such as potential License Suspension, raised insurance rates, potential exposure to a Civil Lawsuit, and more that Horlick Law Firm can advise you on and help navigate. Robert Horlick has practiced and successfully represented those charged with Traffic Offenses, DUI, and all Criminal Charges, in over 40 Municipal, State, Juvenile, and Superior Courts throughout Georgia, and will work hard to resolve your case as cleanly and painlessly as possible, whatever path you choose.

The information below is divided into sections to help make the subject easier to read and digest. Though a few of the sections may overlap somewhat in content, each is a separate consideration when it comes to Atlanta DUI arrest law and trial practice. Click on a title to expand section.

A Georgia Driver’s Rights

As mentioned earlier, an individual’s right to be free from unlawful search and seizure is protected by the U.S. and Georgia Constitution. This is one of the foundations of our rights, and a safeguard against the erosion of our liberties. These safeguards help protect against searches performed without cause (such as an officer just walking to someone walking down the street, reaching into their pocket, and finding a bag of drugs), but awareness of your rights and the law is crucial to your understanding of probable cause and the potential scope of an encounter with law enforcement. If an officer detains or searches a driver or individual without a warrant, consent, or the requisite probable cause, the search is not valid, and any information or evidence gained as a result of the search may be invalid as well. You should always have an experienced DUI Attorney review your case in order to determine whether or not proper procedures were followed, and if not, file and argue motions to exclude any evidence or arrest that may have stemmed from these improprieties. If the evidence against you was obtained illegally, you have a constitutional right to have it excluded from consideration; and if the absence of that evidence means that the State cannot support its’ case for DUI, then you cannot be proven guilty of Driving Under the Influence, and your attorney should fight for a dismissal, reduction, or acquittal — whatever is appropriate in the situation.

Georgia Traffic Law

The substance and scope of Georgia’s traffic laws are broad, and as such this article will only touch on those elements commonly associated or entangled with the suspicion of criminal activity. If you have a Georgia Drivers License, or are driving in the State of Georgia, you are subject to Georgia Traffic Laws, and it is your duty as a driver to be aware and informed of the rules and your rights. You can review the Official Code of Georgia Annotated (O.C.G.A.) for free here. If you’ve recently moved to Georgia, you must apply for a Georgia Drivers License within thirty (30) days of becoming a resident. If you are a non-citizen, there are other conditions and steps you must follow. Please refer to the Georgia Department of Drivers Services website for more specific information.

Probable Cause for Stop

police-carAs any licensed driver in Georgia knows or should know, if an officer observes (or believes he observes) a driver commit a traffic violation, he has the right (read: probable cause) to pull that driver over. Whether or not the officer (overtly or not) suspects further criminal activity, as long as he legitimately observes or believes he observes a traffic violation, he has the right to stop the vehicle. Once the vehicle has been stopped, if the officer believes he has articulable suspicion of further criminal activity (such as Driving Under the Influence), he or she may have cause to investigate further. Some common traffic offenses that can cause a driver to be pulled over are: Speeding, Failure to Maintain Lane, Failure to Yield, Failure to Obey a Traffic Device, Following Too Closely, Driving without Headlights, Expired Tag, and more.

Texting While Driving

Texting while driving is not only distracting, it’s dangerous – and illegal. And, as such, is probable cause for a traffic stop. The recent Georgia Law, which applies to text messages, instant messages (IM), email, and Internet data, prohibits drivers from texting, using a cell phone, personal data assistant (PDA), computer, or other similar wireless device to read, send, or write text data while driving. Not only are there fines associated with this offense, and the potential assessment of points on your license, but it is dangerous and distractingly risky, and it divides a driver’s attention when it should be undivided.

The “Caleb Sorohan Act for Saving Lives by Preventing Texting While Driving” or better known as the new law that prohibits texting while driving took effect on July 1st, 2010. With this implementation, a violator is subject to a penalty of one (1) point on his or her license and a $150.00 fine. One question Georgia drivers are asking is, “How is this to be enforced?” The language of the amendment specifically permits, inter alia, the use of “navigation systems….” Unfortunately, the latest models of cellular phones incorporate a “GPS” or “navigation system”. It thus may be difficult for authorities to establish the driver’s actual use of the cellular device was for texting messaging or sending data (i.e., e-mails). The law has been implemented in 28 states and D.C. to specifically ban texting messaging while driving. An in depth view of cell phone laws implemented across the country can be viewed at this website. States restricting text messaging and not complete use of cell phones are encountering a difficult hurdle proving that such a violator was using the cell phone as prohibited by law. Due to the fact that such evidence is difficult to establish, authorities may on the honesty of the driver or the officer’s genuine belief, or may look into the driver’s phone records, but every case is different, and this enforcement and prosecution of this law is still in its’ early stages. As mentioned above, the safest and best advice is to concentrate on the road and avoid using your phone in any way that might be illegal or distracting.

Accidents and Roadblocks

If the police witness or are called to the scene after an accident, they are authorized to inquire as to the cause of the accident and investigate any suspicions that may arise as a result of their inquiries. If a police officer suspect that a driver involved in the accident might have been impaired, he or she may ask certain questions and request that that driver submit to certain evaluations, and possibly place them under arrest for Driving Under the Influence. They need not have witnessed the accident, nor the traffic violation itself, to have cause to suspect a driver of possible impairment. Similarly, you may encounter a “Roadblock” in Georgia. Roadblocks are not always set up to detect criminal activity, however, avoiding one, even innocently, is a chargeable offense. Often, roadblocks are organized as safety or license checks. As such, any roadblock encounters with a law enforcement officer begins without any suspicion of criminal activity (unlike, as mentioned in the previous paragraph, the Probable Cause an officer may have to stop a vehicle for some violation of the law). If on coming in contact with the driver or vehicle, however, an officer suspects impairment or other criminal activity, he or she may have valid articulable suspicion to inquire and elevate the stop to a DUI or criminal investigation.

Potential Signs of DUI on the Road

This is not meant to be an exhaustive list by any means, but it does aim to distinguish between traffic violations that can cause an officer to suspect impairment, and traffic violations which should not. Some of the traffic violations that can cause an officer to pull a driver over in the State of Georgia can also be indicators of a suspicion of impaired driving (such as Failure to Maintain Lane, Failure to Yield, and Following Too Closely). Some traffic violations (such as Expired Tag), are violations of Georgia Law that needn’t raise a suspicion of impaired driving. However, once a car is pulled over, for whatever legitimate reason, upon contact with the driver, an officer’s suspicion of additional crimes or impairment can be piqued . At that time, he or she may be justified in asking you to answer further questions and to submit to certain tests and evaluations.

Probable Cause for DUI in Georgia

To be justified in asking you to submit to Field Sobriety Tests or an evaluation of your Breath or Blood Alcohol Content, an officer must have an articulable reasonable suspicion. This is to safeguard against unlawful searches, seizures, and arrests, and is a right protected by both the Georgia Constitution and the Fourth Amendment to the United States Constitution. Law enforcement officers have a duty to investigate when they believe that a crime has been committed, or is in the process of being committed, but this investigation must be supported by probable cause and a reasonable suspicion of criminal activity. Upon stopping the vehicle, when inquiring further about the suspected violation, whether anything gives the officer probable cause to investigate further is a matter of each particular situation. For example, if there are open containers in the vehicle, or the driver admits to having consumed alcohol before driving, or if the officer smells, or believes he smells, alcohol, or other illegal drugs, this is sufficient probable cause to investigate further. Probable Cause for a DUI arrest can also arise after questioning or observation by the officer, any potential admissions by the driver, the results of any Field Sobriety Tests or Breath or Blood test requests, and more. These questions and tests, and a driver’s rights regarding them in Georgia, are discussed further below.

Circumstantial Evidence of DUI

Circumstantial evidence may also be sufficient to establish probable cause for arrest, or at least a sufficient articulable suspicion to warrant further questioning and investigation. Circumstantial evidence is defined generally as evidence which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. For instance, circumstantial evidence of an potentially impaired driver can arise if someone witnesses a hit and run, and calls the vehicle information into the police, or where information about possible criminal activity is obtained over a police scanner or by another independent witness. If the police locate and pull over that driver, based on those calls or tips, they may have probable cause to begin investigating further criminal activity, even though they themselves did not witness the alleged underlying suspicion/offense.

Questioning by Officer: Statements and Admissions

It is your duty as a licensed Georgia driver, and an informed citizen, to be aware of your rights, long before you are or aren’t read them in the form of “Miranda Warnings” by an officer placing you under arrest on suspicion of violation of the law. You have a right against self-incrimination, and a right to remain silent. You have a right to know that, throughout the course of your encounter with law enforcement, ANYTHING YOU DO OR SAY CAN BE USED AGAINST YOU. Be respectful, cooperative, and polite, but remember: this is not a casual encounter. The officer already believes you are guilty of violating a traffic offense, and is trained to look for clues of further violation of the law. If you have been pulled over for a traffic violation, it is safe to assume that, whether or not there is anything more to find, the officer may be “looking for more.” If you are being asked questions about where you’ve been or whether or not you’ve been drinking, and how much, it is safe to assume that the officer is “looking for more.” If more officers are called to the scene, or you are asked to submit to any Field Sobriety Tests or tests of your Blood, Breath, or Urine, it is safe to assume they are “looking for more.” This “more” is most likely probable cause for arrest for DUI. Be polite, cooperative, and honest, but remember this.

Remember that, despite the officer’s questions, suspicions, and requests, and despite your responses and cooperation or lack thereof, he or she may already have probable cause to arrest (and just be looking for you to provide more evidence against you)! While you should always be respectful of and cooperative with law enforcement, you must keep in mind that if you are in this situation, you are UNDER INVESTIGATION. ANYTHING YOU DO OR SAY CAN BE USED AGAINST YOU. It is law enforcement’s job to establish probable cause to arrest, NOT YOURS! Be mindful of this fact when choosing whether or not to answer an officer’s questions, or participate in any interrogations or any of the voluntary Field Sobriety Evaluations evaluations (discussed in more detail below).

Field Sobriety Tests: Voluntariness

If you have been stopped by an officer, and he or she suspects you of driving under the influence of alcohol, you may be asked to submit to any number of Field Sobriety Tests. Though performance results of Field Sobriety Tests (FSTs) may lead an officer to believe a driver is not impaired, they are commonly used to establish, or bolster, the officer’s Probable Cause for arrest. Usually, if you are asked to perform FSTs, it is because the officer suspects you of impairment and wants to investigate further — with your consent. That is why you must remember: FIELD SOBRIETY TESTS ARE VOLUNTARY; an officer may not have probable cause to arrest a driver before submission to these tests, but they very will might after.

DUI-policeField Sobriety Tests are mostly subjective, and performance can be affected by a multitude of factors other than alcohol or drug impairment. Nonetheless, an officer can request that you submit to a number of FSTs, and based on your performance, may or may not find probable cause to arrest for DUI. As a licensed driver in the State of Georgia, you have a duty to know your rights, and to be aware of this fact if you ever find yourself in a similar situation. Police encounters can be stressful for any driver, and that stress can be lessened by knowing your rights. There is no requirement that the officer share his or her results or conclusions with you (i.e., “whether or not you passed,”) short of his or her determination that there is probable cause to arrest.

As mentioned above, the officer may already have probable cause to arrest, and just be looking for more – to bolster his or her evidence. Field Sobriety Tests vary in their degrees of scientific or legal reliability, and “performance” on them can be affected by hundreds of factors, only some of which are indications of impairment. These tests can include the Preliminary Breath Test (PBT), Horizontal Gaze Nystagmus (HGN), Walk and Turn, One-Legged Stand, and more. Many people confuse the PBT with the Breathalyzer, but they are quite different. Preliminary Breath Tests are only admissible to establish the presence or absence of alcohol in the mouth, and though that result can be effected by consumed alcohol, it can also be effected by a number of other factors. You may also be asked to submit to an HGN test — usually performed with a pen, flashlight or the officer’s finger — which is designed to look for up to six (6) clues in the eyes (nystagmus is an involuntary jerking of the eye), which can be indications of impairment, though there are a number of other physical conditions and states that may effect these results.

Similarly, you may be asked to submit to Walk-and-Turn and a One-Legged Stand Test as well. Though there are MANY reasons why a driver may not perform these tests to the officer’s satisfaction, the possible alternate explanations for your results do not tend to matter much to the officer. They are quite important when it comes to trial, but in terms of probable cause to arrest, if you submit to these tests, and exhibit clues which can be attributed to impairment, whether or not they are or should be, you may have just helped the officer and the State build their case against you.

DUI Arrest in Georgia

If an officer believes you to be under the influence of drugs or alcohol, he or she may place you under arrest for Driving Under the Influence. Whether or not you’ve participated in an officer’s interrogation or requests to submit to field sobriety examinations, an officer may still believe he or she has the requisite probable cause to arrest you for DUI. Once you are placed under arrest, it is the officer’s obligation to request a breath or blood test, at his or her choosing, and inform you of the possible consequences for refusal. The arresting officer is required to inform you of your “Implied Consent” (discussed further below), and these warnings vary based on your age and the class of your drivers license. It should also be noted that there are two (2) general “types” of DUI charge in the State of Georgia. A Georgia driver may be charged with Driving Under the Influence, “either by driving or being in actual physical control of a moving vehicle while under the influence of alcohol and/or a controlled substance, to the extent that it is less safe to drive…or…per se: by driving or being in actual physical control of a motor vehicle with an alcohol concentration of 0.08* grams or more any time within three (3) hours after driving from alcohol consumed before that driving ended. (*Keep in mind: This value is different if you are a Driver Under 21, or arrested driving with a Commercial Drivers License.)

Implied Consent

Whether or not you’ve had a drop to drink, whether or not you’re impaired, and whether or not you are in a position to make that determination, as a Georgia Drivers License holder or driver in this State, you have already “impliedly consented” to a test of your blood, breath, or urine if asked to submit by an Officer. If you refuse the officer’s request, your license may be suspended administratively for 12 months, and you may have only ten (10) days to contest this suspension (discussed further below). The type of Implied Consent notice you may be read depends on your status — Drivers Under 21, Drivers 21 and Over, and Commercial Drivers License holders. Each warning is drafted specifically based on the driver’s status, and explains the law and potential consequences of refusal to submit to testing. If the arresting officer does not read or relay the warning to the driver accurately, or reads the wrong warning, and tests are administered as a result of these mistakes, the results of such tests or requests may not be admissible in court.

If you submit to the requested testing, you should be aware that you have a right to request an additional test of your choosing, at your own expense. If you refuse the State’s request to test the alcohol content in your blood (for instance, if you refuse a request to submit a breath sample), you do not have a right to request a different test (such as a test of your blood or urine). Only by submitting to the Officer’s request does your right to request an additional test arise.

Breathalyzer & Refusal of Breath Test

The Breathalyzer is the most commonly used, analyzed, and discussed method of testing the BAC (Blood Alcohol Content) of one’s breath in the State of Georgia. A driver’s Blood Alcohol Content may be measured by collecting a sample of his or her blood, breath, or urine. After you are placed under arrest on suspicion of Driving Under the Influence, you will be asked to submit to a test of your blood, breath, or urine, at the Officer’s choosing. If an officer suspects impairment of drugs other than alcohol, or is unable to administer a breath test, a blood test may be done. Many times during a traffic stop and DUI investigation, a driver will be asked to submit to a Preliminary Breath Test (PBT). Often, requests to give a breath sample in this manner occur at the beginning of the Officer’s investigation, and at the end, though whenever it is requested, it should be noted that this IS NOT a Breathalyzer test. Remember, The PBT is voluntary, and is only one element of the officer’s search for probable cause. The values given by a PBT are not admissible in court; it is only admissible to establish the presence or absence of alcohol in the mouth, which as discussed earlier, even if present, is not dispositive of BAC level or impairment. The Breathalyzer test, however, is different.

Request to submit to the Breathalyzer tends to occur once a driver has been placed under arrest, and testing most often occurs at the police station. Georgia currently uses the Intoxilyzer 5000 for tests of one’s BAC, and while these results, when the machine is properly calibrated and operated, and the tests are administered properly, can provide a fairly accurate indication of one’s BAC, the Intoxilyzer 5000’s methods and results are far from perfect. Breathalyzer results may be skewed or affected by a number of factors unconnected and unrelated to the presence of alcohol in a driver’s system, such as acid reflux, mints, gum, mouthwash, dental work.

Refusal of Breath Test

Once a driver is placed under arrest on suspicion of driving under the influence, and read the Implied Consent warning (discussed above), they are asked to submit to a test of their blood, breath, or urine. Because drivers in Georgia, by obtaining a Georgia Drivers License, have already agreed to submit to a test if requested, one faces significant potential consequences regarding his license and privilege to drive if he refuses (such as a license suspensions without the possibility of limited driving permits for any purpose – discussed more below).

Blood Alcohol Content

Georgia drivers over 21 years of age with a Blood Alcohol Content of 0.08 grams or more will be charged with DUI Per Se, and Drivers 21 and Under, because of Georgia’s “Zero Tolerance” laws, may be charged with DUI with a BAC of as little as 0.02 grams. Additionally, those suspected of driving under the influence while driving Commercial Vehicles may be charged with DUI Per Se with a BAC of 0.04 grams or more. If tests of a 21 or older, non-commercial driver’s blood, breath, or urine indicate a BAC of less than 0.08, or if this testing is refused, the driver may still be charged with DUI Less Safe.

Other DUI Tests

If an officer suspects a driver of being under the influence of a substance other than alcohol, or a combination of alcohol and other substances, he or she may ask the driver to submit to a test of blood. If a driver refuses, or is unable to answer, an officer seek to obtain a warrant to draw the driver’s blood and test its contents. A refusal of any kind can result in some of the scenarios described below.

Administrative License Suspension

As mentioned in the above “Implied Consent” paragraph, being charged with a DUI may also result in an attempt to suspend your license administratively. This effort at Administrative License Suspension is separate and distinct from the criminal charge of DUI a driver faces, and has separate terms and consequences. The administrative license suspension process affects all drivers who refuse to submit to testing, or that blow a 0.08 or above (or 0.02 or above if driver is under 21). How long this suspension may last, and whether or not a driver might be eligible for a limited driving permit depends on the facts of the case, and if there are any previous DUIs on the driver’s record in a certain “lookback” period. When an officer files the paperwork to suspend a driver’s license administratively, you must file an appeal and request for hearing on the matter within ten (10) days, or else you risk automatic suspension after 30 days. There are a number of ways Administrative License Suspension hearings can go, as every case is different, but remember: just because an administrative license suspension is filed against a driver, doesn’t mean the license will be suspended. Horlick Law Firm will file this request for you, and fight for you at your scheduled hearing.

Limited Driving Permit

Whether or not a driver is eligible for a Limited Driving Permit depends on their case and their history (or lack thereof) of DUIs. Also, keep in mind that whether a driver is eligible for a limited driving permit based on an administrative license suspension, or based on a conviction for DUI, though they may overlap and can effect each other, are different considerations. If your license is suspended administratively as a result of a refusal to submit to the state’s testing, the suspension is for one (1) year, and you are not eligible for any limited work or hardship permit. The only way the suspension may be terminated is if you are acquitted for DUI, your charges are dismissed, or reduced. If your license is suspended as a result of submitting to tests and a finding of a BAC higher than 0.08 (for drivers 21 and over), the length of suspension, and eligibility for a shortened suspension, or probationary license, is dependent on what “number” DUI this is for you, and the dates of your previous convictions. Again, the length and type of suspension, and eligibility for limited driving permits, depends on a number of case and driver-specific factors, and this article is meant as a general overview, and is no substitute for specific legal advice. Contact Horlick Law Firm to discuss the particulars of your case and what we can do for you!

Georgia DUI Penalties

gavel-150x150Every driver and every case is unique. The minimum and maximum penalties for DUI conviction in Georgia are set by statute, and can vary significantly, depending on a number of factors, including whether there is a history of DUIs in the driver’s past, and exactly when those arrests occurred. For specific advice, or a better understanding of your particular situation, please contact Horlick Law Firm for a free consultation.

Other Crimes

Though this website focuses on the intricacies and elements of traffic and DUI stops, suspicions, and arrests, Horlick Law Firm is experienced in representing clients charged with ALL criminal charges in the State of Georgia. Attorney Robert Horlick was a public defender in Fulton County for 4 years, and in that time, represented hundreds (maybe thousands) of clients, in Juvenile and Superior Court, charged with crimes ranging from traffic stops to Murder. Horlick Law Firm’s practice area includes: Traffic, DUI, Drugs, Theft, Robbery, Sex Crimes, White Collar Crimes, Assault, Battery, Juvenile Delinquency, Deprivation, Domestic Violence, Probation Violations, Bond Hearings, Expungements, and more. If you or someone you love has a legal issue that you’d like to discuss, please call or email right away to schedule a free consultation.