One of the fastest growing trends in Georgia DUI are the increasing instances of arrests related to DUI cases involving drugs. The mere consumption of drugs does not mean you are guilty of DUI. This is the biggest misconception.
Most attorneys do not understand the concept that the consumption of drugs does not equal guilt. Most lawyers look at the crime lab report and see drugs and assume guilt. They fail to look to see if the drugs themselves are actually at levels that ACTUALLY IMPAIR THE DRIVER.View More Information
O.C.G.A. Section 40-6-391, covers not only offenses related to driving under the influence of alcohol, but also offenses related to driving under the influence of drugs, both legal and contraband. Essentially, O.C.G.A. Section 40-6-391 contains three (3) major provisions pertaining to DUI-Drugs:
* A person shall not drive under the influence of any drug to the extent that it is less safe for the person to drive.
* A person shall not drive under the influence of combination of substances (i.e. drugs and alcohol) to the extent that it is less safe for the person to drive.
* A person cannot be under the influence of prescription drugs, even if a drug or drugs are prescribed legally. However, in order to uphold a conviction, the State must prove that such legally prescribed medication rendered the individual incapable of driving safely.
In DUI-Alcohol cases, a person is presumed to be under the influence of alcohol if his blood alcohol level is over 0.80. In DUI-Drugs cases, there is no quantitative "legal limit" that indicates whether a person is under the influence. Rather, the necessary question is whether an individual is under the influence of a narcotic to the extent that they are a less safe driver.
Officers have broad discretion in determining whether an individual is a less safe driver. They are trained to take into account all of the factors surrounding the arrest, including the individual's observed driving, his/her mannerisms, and his/her performance on Standardized Field Sobriety Testing. When a case arrives in court, the prosecutor will take all of these factors into account, as well as the results of any chemical testing that was performed.
If a driver is suspected of driving under the influence of alcohol or drugs, he or she will most likely be subject to the standard battery of field sobriety tests. Those tests include the Horizontal Gaze Nystagmus test, the Walk and Turn, and the One Leg Stand.
If an officer suspects that an individual is under the influence of drugs, he may ask the driver to perform further testing, including the Romberg Balance Test or the Lack of Convergence Test.
The Horizontal Gaze Nystagmus (HGN) Test measures the involuntary jerking of the eye that occurs when a person has consumed alcohol or other central nervous system (CNS) depressant.
Before HGN is performed, the officer must determine whether the individual is a good candidate for the test, as some medical or eye conditions may cause nystagmus absent the presence of alcohol or drugs. The officer should first ask the individual whether they have any such conditions. The officer should then check for "resting" nystagmus - nystagmus that exists when the eyes are facing forward and not moving. Resting nystagmus can indicate the presence of a medical disorder or the presence of certain types of drugs (PCP, for example). The officer should also check the subject's tracking ability, or whether the individual can physically follow the stimulus with both eyes. If a person's eyes cannot track equally, it may indicate the presence of a medical condition.
Once a person has been medically qualified, the officer may proceed with the test. The officer has the subject follow the motion of a small stimulus - usually the tip of a pen or penlight - with his or her eyes only. Each eye is checked beginning with the left eye. Two or more "passes" are made before each eye, to look for each of the clues of nystagmus.
1. For HGN, officers examine each eye for three specific clues (for a total of six clues);
2. As the eye moves from side to side, does it move smoothly or does it jerk noticeably?
3. When the eye moves as far to the side as possible and is kept at that position for four seconds, does it jerk distinctly?
4. As the eye moves toward the side, does it start to jerk prior to a 45-degree angle?
Vertical Gaze Nystagmus (VGN) is an involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs (such as CNS depressants or inhalants). There is no drug that will cause Vertical Gaze Nystagmus while not also causing Horizontal Gaze Nystagmus; thus, if Vertical Gaze Nystagmus is present and Horizontal Gaze Nystagmus is not, it may also be caused by a medical condition.
Officers typically check for VGN immediately after checking for HGN, using the same stimulus but simply moving it vertically rather than horizontally. For VGN to be recorded, it must be definite, distinct and sustained for a minimum of four seconds at maximum elevation.
If either HGN or VGN are observed, this may indicate the presence of drugs or alcohol. However, the absence of nystagmus does not necessarily rule out the presence of drugs, as some drugs do not cause nystagmus.
Even in the absence of nystagmus, officers are trained to note other features of the eyes. For example, officers will usually note if pupils are noticeably dilated, as this may indicate the presence of drugs such as CNS stimulants (cocaine and amphetamines, for example), Hallucinogens (LSD or mushrooms), Cannabis (marijuana).
The Walk and Turn test is a "divided attention" test that requires an individual to concentrate on more than one thing at a time - a mental task and a physical task. The idea behind this is that driving is also a divided attention task - drivers must simultaneously control steering, acceleration and braking, watch the road and react appropriately to their surroundings. Because alcohol and drugs may reduce a person's ability to divide attention, it is believed that an inability to complete a divided attention test adequately is indicative of some level of impairment.
The Walk and Turn Test is divided up to include two phases: the instructional phase and the walking phase. During the instructional phase of the test, the officer tells the individual to stand in a heel to toe position and remain there until the officer tells him or her to begin the test. During this phase, the person's attention is divided between balancing in the heel-to-toe position and listening to and remembering the instruction for the remainder of the test.
During the walking phase of the test, the individual is instructed to take nine heel-to-toe steps, turn in a specific manner, count his or her steps out loud, and watch his or her feet. This phase divides the individual's attention among a balancing task, a small muscle control task, and a short-term memory task.
The officer observes the individual during the performance of the test noting if the individual:
1. Cannot keep balance while listening to the instructions;
2. Starts too soon;
3. Stops while walking;
4. Does not touch heel to toe;
5. Steps off the line;
6. Uses arms to balance;
7. Makes an improper turn;
8. Takes an incorrect number of steps.
The One Leg Stand test is another NHTSA-validated divided attention test that is commonly used during a DUI investigation. The One Leg Stand test consists of two phases: the instructional phase and the balance and counting phase. During the instructional phase, the individual is instructed to stand with his or her feet together, arms down by his or her sides, Once instructed to begin the test, the individual lifts either leg approximately six inches off the ground while counting out loud ("one thousand one, one thousand two, one thousand three, etc,") until told to stop.
The officer observes the individual during the performance of the test, noting if the individual:
1. Sways while balancing;
2. Uses arms to balance;
4. Puts foot down.
These are the four validated clues for this test. The individual is considered unable to complete the test if the subject is in danger of falling.
These tests are non-standardized tests that have not been scientifically validated by NHTS for use during a DUI arrest. Nonetheless, officer often uses them to develop probable cause for arrest. An expert can inform the jury as to the lack of scientific evidence to support the administration of these tests.
The Modified Romberg Balance Tests is designed to check a person's internal clock, balance and presence of tremors. Officers instruct the individual to tilt his or her head back and close his or her eyes. The suspect is then asked to estimate the passage of 30 seconds, and to open their eyes when they believe 30 seconds have elapsed. The idea behind this is that some drugs "speed up" the internal clock while others tend to slow it down, causing a person to have difficulty estimating the passage of time. Officers note the amount that the subject sways (which the officer must estimate), the actual amount of time that the subject keeps the eyes closed and the presence of tremors.
Lack of convergence occurs when an individual is unable to cross his eyes when focusing on a stimulus that is moving towards the bridge of the nose. It is observed when one eye or both eyes drift away or outward toward the side instead of converging toward the bridge of the nose. Lack of convergence may indicate the presence of CNS depressants, inhalants, dissociative anesthetics, or marijuana.
The officer instructs the individual to recite the alphabet beginning with a letter other than A and stopping with a letter other than Z. This test has not been scientifically validated.
This technique requires the individual to count out loud 15 or more numbers in reverse sequence. For example, the officer might request the individual to, "Count out loud backward, starting with the number 68 and ending with the number 53."
In this technique, the individual is asked to touch the tip of the thumb to the tip of each finger on the same hand while simultaneously counting up one, two, three, four; then to reverse direction on the fingers while simultaneously counting down four, three, two, one.
Some police officers are trained as DRE's drug recognition experts. They receive specialized training to determine through field-sobriety testing if someone is under the influence of illegal or prescription drugs. Usually, most DRE's are also experts in detecting alcohol-based DUI's. There is no requirement that an officer is a DRE to arrest someone for driving under the influence of drugs.
However, having the certification of being a drug recognition expert adds tremendous credibility to a police officer accusing someone of DUI-Drugs. Conversely, since most police departments and the Georgia State Patrol have DRE's on staff, an officer who suspects someone of DUI-drugs compromises their case if a DRE is not called in.
According to the National Highway Transportation Safety Administration (NHTSA), there are seven (7) main categories of drugs and each type of drug has a different observable effect on a driver.
These types of drugs slow down the function of the brain and other parts of the central nervous system. They also slow down the heartbeat, blood pressure, respiration, and many other processes controlled by the brain. The most common type of depressants are alcohol, anti-anxiety medications, and muscle relaxants.
Effect: “drunken behavior” such as acting drowsy, uncoordinated, sluggish, disoriented, and thick/slurred speech.
This category of drugs impairs the central nervous system by “speeding up” or over-stimulating the brain. The body’s functions are accelerated, such as heart rate, respiration, blood pressure, and other processes of the body. Examples of this drug are cocaine, methamphetamine, and other amphetamines.
Effect: restlessness, talkative, excited state, euphoria, exaggerated reflexes, grinding of teeth, nasal area redness, runny nose, body tremors, and loss of appetite.
Hallucinogens include some natural, organic substances, and some synthetic chemicals. They impair the user’s ability to perceive the world as it really is; for example, the user may be seeing things that are not there, or perhaps see things in a different way than they actually exist. They also alter the user’s sensations, self-awareness, emotions, and thinking. LSD is an example of a synthetic chemical hallucinogen. Other examples include hallucinogenic mushrooms and ecstasy.
Effect: hallucinations, disorientation, paranoia, nausea, dazed appearance, body tremors, uncoordinated, perspiration (sweating), difficulty in speech, and goose bumps.
This category includes the drug PCP and its various forms and Dextromethorphan (DXM). PCP is a very unpredictable drug that can sometimes act like a depressant, a stimulant, a hallucinogen, or all three at once. Dissociative anesthetics can cause bizarre and sometimes violent behavior.
Effect: possibly violent and combative, muscle rigidity, blank stare, repetitive speech, confused, difficulty in speech, perspiration (sweating).
This drug category includes the natural derivatives of opium, such as morphine, heroin, codeine, and others. It also includes many synthetic drugs. This type of drug relieves pain and produces a very strong addiction and withdrawal signs and symptoms.
Effect: droopy eyelids, facial itching, depressed reflexes, dry mouth, fresh puncture marks on body, and low/raspy speech.
This category of drugs includes many familiar household products, such as paint, glue, aerosol sprays, etc. Other examples are gasoline, hair spray, insecticides, ether and chloroform. Of course, none of these products are meant for use as a drug, but are often abused. They produce strong, volatile fumes that produce significant impairment. Many inhalants block the passage of oxygen to the brain.
Effect: disorientation, confusion, slurred speech, nausea, and possible residue of substance on body and clothing.
This type of drug includes marijuana hashish, as well as synthetic compounds. The various cannabis products impair the attention process and the user’s ability to perform divided attention tasks.
Effect: reddening of eyes, disorientation, body tremors, odor of marijuana, difficulty in dividing attention, and relaxed inhibitions.
If you were subjected to field sobriety testing prior to a DUI-Drugs arrest, it is of utmost importance that you seek an attorney with experience in DUI defense. There are several reasons for this. First, these tests are standardized, and police officers are not infallible. If the arresting officer failed to perform the tests correctly, an experienced attorney can challenge their validity Second, lawyers with experience know that these tests were not designed to detect the presence of drugs. While the effects of certain drugs mimic the effects of alcohol, field sobriety testing was never developed or validated to detect drugs. They are intended to detect the usage or impairment of alcohol.
Even if your blood or urine test is positive for marijuana there is hope. When an individual uses marijuana, his/her body begins to break down the marijuana metabolites, called THC. The first metabolite produced is Hydroxy THC. This is the psychoactive metabolite. Once the Hydroxy THC is metabolized by the liver, a secondary metabolite, Carboxy THC, is produced. Carboxy THC is non-psychoactive and not impairing. Carboxy THC does, however, remain in the body for several weeks after the last marijuana use.
In Georgia, the type of blood test typically administered to people suspected of DUI Marijuana only tests for the presence of marijuana metabolites (THC), without differentiating between Hydroxy THC (the psychoactive metabolite) and Carboxy THC (the non-psychoactive metabolite). This means that although the test may show that you had marijuana metabolites in your system, this does not necessarily mean you were driving under the influence of marijuana.
A successful defense in a DUI-Marijuana case requires the attorney to understand not only the law, but the science of marijuana impairment as well.
In most DUI-Drugs cases, the police request a blood test. Thus, to achieve the best possible outcome, a knowledgeable attorney must understand the procedure used in blood testing and how this procedure may result in errors. For example, the person drawing the blood may have accidentally contaminated the sample, the blood may have coagulated (resulting in an artificially high level of alcohol or drugs in the blood sample), or the blood may have been stored under poor conditions, resulting in spoliation of the sample.
As stated above, for legally prescribed drugs, the fact that you took a certain medication legally is not necessarily a defense, especially if the dosage in your bloodstream appears higher than prescribed. It is illegal to drive under the influence of any substance, even if consumption of the substance is legal. However, the blood test may show that the amount of a particular medication in your blood is within the "therapeutic" levels prescribed by your doctor. In this case, an experienced attorney can work with a pharmacology expert to explain this distinction between "therapeutic" and "impairing" levels to a jury.
Certain medications, when combined with alcohol, react in different ways. Some may result in a higher level of impairment while others would have less of an effect on a person's ability to drive safely. Additionally, most people, including those who serve on juries, are unaware that perfectly normal, legal substances (such as cough medicines or even poppy seed muffins) can result in a false positive on a drug test. While expert testimony may be necessary to explain these facts to a jury, an attorney can use this information to help during plea negotiations.
An experienced DUI-Drugs attorney knows that the mere presence of a prescription medication in your blood does not mean that you are guilty of DUI. The State still must prove the medication rendered you an unsafe driver.
"DUI Court" refers to a treatment program offered in many jurisdictions throughout the State of Georgia. It is typically for repeat DUI offenders who the prosecutors and judges deem have issues with substance abuse. This program is difficult and should never be entered into without first looking at every option in your case. Your case needs to be first investigated before even considering this program.
DUI Court is an intensive, zero tolerance program that is overseen by a State or Superior Court Judge. There are many rules and intricacies involved with the DUI Court, so you will want to discuss with your attorney at length whether or not it is a good option for you. The program has monthly fees, weekly treatment and bi-weekly court appearances before the judge. YOU CANNOT MISS ANYTHING OR MAKE ANY MISTAKES. That is the realty of DUI Court in Georgia.View More Information
DUI Court is designed to get the ultimate amount of accountability from you by forcing every square peg into a very round hole. Life is a series of misunderstandings and accommodations. People are late. People make mistakes. People need to have expectations reset and changed. Unfortunately, in DUI Court, such mistakes are "understood" with sanctions ranging from more classes, more community service, and of course more time in jail. NEVER GO INTO A DUI COURT PROGRAM UNLESS 100% COMMITTED TO FOLLOWING EVERY RULE AND TAKING EVERYTHING COMPLETELY SERIOUSLY. Otherwise, you will likely spend more time in jail than had you simply been punished up front.
In the plea bargaining process, DUI Court may be discussed as a possibility for you if you have multiple offenses regarding drugs and/or alcohol and you are a resident in the county where the charges stem from. The Court system cannot force you into a DUI Court Program, rather it is something that you agree to and it is a treatment plan that you are in following your conviction as a term of your probation.
Most DUI Courts are arranged into a series of phases, with the first phase being the most intensive and then participants begin moving up over time until a graduation date approximately one year after being in the program. Be aware, the DUI Court Program in Georgia is very intensive and is not for everyone. If you fail to do everything you ae told to do, you will face sanctions. Those sanctions can range from additional community service to time in jail.
DUI Court Programs typically involve in the first phase weekly court appearances, drug/alcohol testing and intensive counseling on both a group and individual level. Usually participants are made to sign a 4th Amendment waiver allowing DUI Court personnel total access to their homes and vehicles. If any drugs or alcohol are found, that is a violation and immediate lock up typically follows.
The good news about these programs are that they offer a treatment option for repeat offenders that can be used in lieu of straight jail time. The bad news is that these programs are not easy and have little flexibility. If you travel for work or live with roommates, it is nearly impossible to successfully comply with the rigid terms of the program. When you are in the program your home and place of work can be searched 24 hours a day, 7 days a week.
You should never join a DUI Court Program in Georgia unless your attorney has looked at all possible defenses and all possible alternatives. To evaluate whether this option is a good choice for you in your case call to discuss DUI Court and everything involved therein.
Researching about your DUI charge on the internet can lead you to many misconceptions. Without the guidance of a skilled attorney to help navigate you through every step of your case, you could be missing steps and defenses to resolve your case.
My office receives many calls from people that have been doing research on the internet. Online research lacks context and the experience of a qualified lawyer who knows the local rules and customs of the court system. These misconceptions can mislead a person to make poor judgments about their case, some of which can lead to irreversible outcomes. Although the internet has many great resources, no website should ever take the place of legal advice from a skilled attorney.View More Information
This is completely false. A DUI in Georgia is a misdemeanor traffic offense and stays on your permanent Georgia Criminal history for life. Petty traffic citations such as speeding or running red lights unrelated to DUIs only go on your Motor Vehicle Report through Driver Services and for the purpose of insurance and points, come off after seven years. A DUI conviction remains on your criminal history forever.
There are only two instances where a DUI in Georgia can be restricted from your criminal history. First, you took your case to a trial either by a jury or a judge, and they found you not guilty of all offenses, including any related offenses, such as failure to maintain lane. The second way to have your record restricted is if the State completely dismissed all your charges. Many people mistakenly believe that if their charges were reduced to a reckless driving, that this constitutes a dismissal and are therefore eligible for record restriction. This is false. The charges must be entirely dismissed, not just reduced.
Pretrial Diversion Programs, commonly referred to as conditional discharges, are excellent programs that allow a defendant charged with an offense to have their case dismissed. The dismissal must be earned and usually involves attending counseling, payment of a fine, completion of community service, and sometimes a period of probation. Usually these programs are for people charged with minor traffic offenses, shoplifting, possession of marijuana, and underage possession of alcohol.
Although these programs are a great opportunity for many people, a DUI in Georgia is not eligible for Pretrial Diversion or Conditional Discharge. Additionally, many people think that they can use a First Offender Plea for a first DUI offense. DUI is specifically restricted by the statute allowing First Offender Pleas.
I have heard this theory many times. A skilled attorney is trained in every possible DUI Defense that may be used on your behalf in court. A skilled attorney will begin by challenging whether you voluntarily submitted to a breath test, the equipment used to conduct the test and the validity of the reason for the stop (articulable suspicion). In addition, there are many other defenses an attorney can look into to help you fight your case, even if you took a breathalyzer and tested above the legal limit.
Furthermore, even if a breath result is unable to be excluded from evidence, an attorney is able to negotiate a better plea offer than a lay person representing themselves in court.
Although many times completing these things before going to court is helpful, they do not warrant a dismissal of your charges. These things do not negate the fact that you may still be guilty of the charges, but they do show you have taken things seriously on your part and may be helpful in obtaining a reduction of your charges. Every case is different, and the decision to reduce your charges is solely up to the prosecutor. If reduced, the case will not be completely dismissed. The more likely outcome would be a reduction to reckless driving.
I hear this misconception on a regular basis. Many people believe that if they are involved in the community and know the mayor or other city council members, that these people will hold enough influence to have your charges reduced or dismissed. The truth is, DUI carries a social stigma. Because of this, many times a Judge friend or Mayor friend of yours will not want to "put their name" on your DUI. Furthermore, having a friend intercede on your behalf puts them in an uncomfortable position that may cause you to lose a friend. Many times, it is best to leave your "political connections" out of your DUI case.
Although this theory may be true in other countries around the world, it is far from true here in the United States. Hiring an attorney is essential for your DUI charges, but does not guarantee a particular outcome in your case. The decision to reduce your charges is up to the sole discretion of the prosecutor. The prosecutor is a human just like you and me, and they cannot be forced to change their mind if they have decided not to offer you a reduction of your charges. That being said, many times you may have a much better chance of a reduction of your charges with an attorney than you have if you represented yourself on your charges. Never believe an attorney that promises you a particular outcome.
The 10-year rule is very often misunderstood. In Georgia, there are mandatory increases in punishments associated with the number of DUIs a person has within a 10-year period. However, there has never been anything that prevents a court from holding any prior offense against a criminal defendant. Each court views prior convictions differently.
People who have already resolved their case call my office frequently. Very often they are facing consequences for things they did years ago. The problem is that there is very little if anything a qualified attorney can do after a case is resolved. The time to get a good outcome is while the case is still pending.
When a person is charged with a DUI in Georgia, they only have 30 days to file their appeal. Otherwise, their license will be suspended. Many police officers dishonestly tell arrestees that they can drive on the DDS-1205 Form until their court date, which is very often months away. The DDS-1205 Form is a 30-day driver's permit. If you flip over the DDS-1205 Form it very clearly says you only have 30 business days to file an appeal. Otherwise, a person's license will be suspended. In the event of a refusal, the suspension is for 12 months.
Most courts will allow your attorney to handle many of the court appearances. Ultimately, you will have to attend court, however, my job is minimize your inconveniences as much as possible. It does not violate your bond if you have your attorney handle the initial arraignment. When your attorney appears for you, it is as if you appeared yourself.
When the prosecutor runs a GCIC Report on you (Georgia Crime Information Center), it only shows Georgia arrests. Sometimes our clients get lucky, and nothing further is discovered. However, if the prosecutor looks carefully, there will be a code that indicates a "multi-state offender." This will cause an astute prosecutor to run a national criminal history (NCIC).
Unless otherwise noted in the authorizing documents for a police department, most police officers can pull over someone outside of the city or county in which they are employed. Some university police departments have limited jurisdiction, but those are exceptions to the general rule. All deputy sheriffs have statewide arrest powers. That being said, it is the custom of most police officers to stop a suspected drunk driver and then turn that person over to the local police when they arrive.
In fact, Georgia DUI laws are very different from the laws of other states. The State of Georgia has been ranked as the second toughest state in which a person can be charged with a DUI. The ranking methodology was based on both punishment and driver's license consequences.
This is only partially correct. If a person elects to have a bench trial, (a trial by judge only) the judge will decide both guilt or innocence and any consequences therein. However, most DUI cases are either settled by negotiation or tried by a jury. In a negotiated plea, the judge is not part of the plea-bargaining process. The judge can either accept or reject the agreement. If the judge changes the agreement, a criminal defendant has a right to withdraw their plea. In a jury trial, the judge makes legal rulings and acts as an impartial referee. The judge would, however, decide punishment in the event of a conviction.
Miranda is a case that explains a person's right against self-incrimination as guaranteed by the 5th Amendment to the United States Constitution. If the police are not trying to elicit a confession from you, those rights generally do not apply. For the most part, Miranda Rights do not apply in a DUI case.
No. You must take active steps to reinstate your Georgia Driver's License. Otherwise, it will remain suspended indefinitely.
Most law offices have different attorneys at varying price points. Some will offer payment plans as well. You will likely be able to afford to hire an attorney you can afford.
All persons have the right to hire the attorney of their choice. However, a person is only entitled to a court-appointed attorney or public defender if they meet the State and local indigent guidelines.
Nothing could be further from the truth. No one who is arrested in the United States is assumed guilty. In fact, everyone enjoys the presumption of innocence.
For DUI arrests made on or after July 1, 2017, a person whose license is subject to and administrative suspension for a DUI arrest (refusal or breath test case) will now have a choice to how to seek to protect your right to drive, when facing an administrative license suspension for a violation of the Georgia implied consent notice.View More Information
If you are arrested for driving under the influence and the officer issues the 1205 form, you will now have a 45 (not 30) days on a temporary driving permit pursuant to O.C.G.A. Section 40-5-67, but you now have 30 calendar days (not 10 business days) to opt for one of two methods to avoid an administrative license suspension hearing. One option is the same as under prior law, which is to seek a hearing under O.C.G.A. section 40-5-67.1. There is still a $150.00 filing fee to request the administrative license suspension hearing. The issues addressed in this hearing are as follows:
a) Whether the arresting officer had reasonable grounds to believe that you were driving or in actual physical control of a moving vehicle while under the influence of alcohol and were lawfully placed under arrest for DUI;
b) Whether at the time of the request for the test or tests, the officer informed you of your implied consents rights and the consequence of submitting or fusing to submit to such test;
c) Whether you refused the test, or if a test or tests were administered and the results indicated an alcohol concentration that met or exceeded the applicable "per se" limits of 0.08 grams or more for drivers age 21 and older, 0.02 for drivers under the age of 21, or 0.04 for operators of commercial vehicles; and,
d) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences of a test conducted by the Division of Forensic Sciences.
If you request an appeal hearing with a 30-day letter or in person at a Georgia DDS facility, you will have waived your right to an Ignition Interlock Device Limited Permit. See Below.
The Georgia Office of State Administrative Hearings presides over Georgia administrative agencies. One of these administrative agencies is the Georgia Department of Driver's Services. This is the agency that issues driver's licenses in the State of Georgia. This is a completely separate court from the court where your criminal case will proceed.
Once you have properly requested for ALS hearing you generally will receive notice of that hearing about one month from the date you sent in your request. These hearings can be very important to your driver's license and your criminal case. The burden of proof at these hearings can be easy for the officer to meet. The officer is required to show that he/she had reasonable grounds to believe that you were operating a motor vehicle while under the influence of alcohol or drugs to the extent that you were less safe to drive. The officer does not have to prove you guilty beyond a reasonable doubt to win this hearing as would be required in the prosecution of your criminal case. Your privileges or ability to drive anywhere in the State of Georgia is at stake at this hearing.
The Ignition Interlock Device Limited Permit Option (IIDLP), authorized by O.C.G.A. Section 40-5-64.1
Under this new option, you have to apply within 30 days of receiving notice of a license suspension (the DDS 1205 Form) for an Ignition Interlock Limited Device Permit. The filing fee for this permit is $25.00. You also must surrender your license, and must execute an affidavit attesting that the administrative license suspension hearing afforded under Section 40-5-67.1 is waived. The interlock permit is good for one year. At the end of that year, the cost to renew the permit is $5.00 and the renewed limited permit is valid for only two months. The limited permit may be renewed only one time after such person is eligible for reinstatement. This 60-day extension was to cover any oversight of a person to reinstate or due to lack of funds to reinstate.
On a per se DUI case, you must have the Ignition Interlock installed within 10 days of issuance of the permit and must have the device on your car for a period not less than 120 days. Additionally, you may not drive any motor vehicle that does not have the Ignition Interlock Device on it. If you win the per se, get the case reduced or dismissed prior to 120 days, the permit is revoked and your license shall be reinstated without a fee. Furthermore, the driver's license suspension is terminated and the suspension is deleted from your driving history.
On a refusal case, you also must have the Ignition Interlock Device installed within 10 days of the issuance of the interlock limited permit (IIDLP) and again you cannot drive any motor vehicle that doesn't have the Ignition Interlock Device on it. The big difference is that you must install and maintain the IDD for a period of 12 months, and if you win the refusal case, get it reduced or dismissed prior to the 12-month period you must have the IDD on your vehicle for the balance of the 12 months.
The IIDLP will be revoked if you are convicted of violating any state law relating to the movement of a motor vehicle; driving a motor vehicle in violation of an ignition interlock limited permit; conditions (new misdemeanor offense) and tampering with the ignition interlock device. The notification of revocation will be by regular mail to your last known address. A first revocation will prevent you from being eligible to obtain a driver's license for six months from the date of surrender of your license, and the second revocation suspension period is a lifetime suspension; however, you will be eligible for reinstatement of your driver's license after two years. If the IIDLP is revoked or if the Department of Driver Services refuses to issue you a limited permit, you can apply for a hearing before the Office of State Administrative Hearings if filed within 30 days.
Under the IID permit, a person can drive for the following reasons:
1. To and from work including the normal duties of his or her occupation; 2. Receiving medical care; 3. Attending college/school; 4. Attending alcohol or drug treatment; 5. Attending court-ordered driver education; 6. Attending court or court- ordered activity; 7. Performing community service; 8. Transporting a family member to work, school or medical care; and 9. Monthly monitoring visits with the IID provider.
A person cannot obtain the Ignition Interlock Device Limited Permit if they are under the age of 21; have a DUI conviction on their record with the past 5 years as measured from the date of arrest; are not currently licensed to operate a motor vehicle in the State of Georgia or hold a commercial driver's license (available with temporary downgrade of CDL to non-commercial privileges). The IIDLP is subject to an administrative license suspension for involvement in a traffic accident resulting in injuries or fatalities even before conviction. The IID driver need not have alcohol or drugs involved either. Further, the IIDLP is subject to suspension, revocation, or cancellation for any loss of driving privileges "action" as contemplated in O.C.G.A. Section 40-5-64.1 (e.g., nonpayment of child support).
The new law allowing IIDLP also provides that if the IIDLP is revoked for any reason, the first-time revocation triggers a 6-month loss of all driving privileges after surrender of the permit, even if this occurs in the 11th month of having the IIDLP. Any second offense of an IIDLP triggers a 2-year hard suspension. So, having the IIDLP is not without risks and drawbacks.
Under O.C.G.A. Section 40-5-76, the judge in an accountability court may issue the IIDLP in accordance with O.C.G.A. Section 40-5-64.1 if the defendant's driver's license is supposed to be suspended pursuant to O.C.G.A. Section 40-5-75. This special power of an accountability court will sometimes justify entering the DUI Court Program.
If you elect for the IIDLP, you will receive credit towards the period of suspension if convicted for driving under the influence pursuant to O.C.G.A. Section 40-5-67.2(b); however, both a reinstatement fee to remove the Ignition Interlock Device Limited Permit and license fee will apply. For reinstatement of your license after the IIDLP, you must successfully complete the terms of the monitoring and $100.00 ($90.00 by mail) as an interlock permit restriction removal fee.
The administrative license suspension period/reinstatement remains the same as before; however, under O.C.G.A. Section 40-5-64(e), the limited driving permit may be renewed only one time after the person is eligible to reinstate his or her driver's license. The new change in the law prevents a client under the age of 21 from continually renewing their permit so that they can still drive and get credit for any suspension if they are subsequently convicted for driving under the influence.
The criminal justice system protects us by arresting and jailing criminals. Yet not everyone who is arrested is a bad guy. Someday, you, a family member, or a close friend may be accused of committing a crime and be arrested. This information provides an overview of the rights of those who have been arrested and explains how your lawyer can help protect your rights.View More Information
In an arrest, a law enforcement agent, such as a police officer, a sheriff, or a state trooper constrains your freedom of movement because of your possible involvement in a criminal offense. In some cases, the arresting officer may take you into custody; in others, you may be stopped, verbally or physically, so that you can be questioned about a crime.
An arrest warrant is a written order by a judge directing the police to arrest the person named in the warrant. If a warrant for your arrest has been issued, the police may arrest you in your home or in a public place. At the time of your arrest, the officers making the arrest should tell you that they have a warrant and show it to you.
The police can also arrest you without a warrant if they have reason to believe that you have committed a felony, such as robbery, murder, or drug offenses. If you are arrested without a warrant for a felony or misdemeanor, you are entitled to a prompt hearing to determine whether the officer has the minimum level of evidence required for a legal arrest.
The police may use reasonable force necessary to arrest you, but they are not permitted to use excessive force or brutality. Even if you are innocent, you should not resist arrest. Besides risking injury to yourself, you may be charged with the crime of resisting arrest. If you resist a citizen’s arrest, you might be charged with assault and battery. Even if you are eventually found innocent of the original charges, the arrest is not illegal if it conformed to the requirements of the law.
Ordinarily, the police must have a search warrant before conducting a search. However, after you have been arrested, the police may search you and the immediate area around you without a warrant if they reasonably suspect that you may be armed. A search is also permitted when the police see contraband at the time of making an arrest. If the police find something that is a crime to possess, such as a gun or drugs, they may take it and arrest you for possessing it. The police may also take your money and property from you to keep in a safe place until it can be returned to you or used as evidence. If possible, try to verify that all the items taken from you are inventoried on a written list.
You are entitled to telephone a lawyer, a friend, or a family member to notify them of your arrest. You have the right to consult with a lawyer and have him or her present when the police question you. The best practice is to remain silent until your lawyer is present since any statements that you make can be used as evidence against you. If you cannot afford to hire an attorney, you are entitled to a court-appointed lawyer. Depending on local procedures, the court may appoint a private attorney, a lawyer from a legal aid society or a public defender. The police are required to notify you of these rights before they question you. Ordinarily, they are recited during the confusion of the arrest. Remember them. They may become critical to your defense later on.
Even if you declined a lawyer at the time of arrest, you retain the right to have a lawyer at any time after being arrested. You should seek the advice of a lawyer at the earliest possible time to avoid incriminating yourself to get released from custody, to decide how to plead, and to prepare yourself for your trial.
If you are called by a family member or friend who has been arrested, remind them that they have a right to a lawyer and they do not have to respond to police questioning until the lawyer is present. If a lawyer has been engaged, the person who has been arrested should let the police know that they can claim the right to counsel and that a lawyer is on the way.
After you have been arrested, you may be taken into custody and brought to a detention facility. At the detention facility, your arrest will be registered into police records and you may be fingerprinted and photographed. After you have been taken into custody, you or your lawyer can make arrangements for your release while you are waiting for your trial.
You may be asked to participate in a lineup. This is a procedure in which several people, including one or more suspects, are shown to victims or witnesses of a crime to see if they can identify the one who committed it. If you are asked to participate in a lineup, you have a right to have your attorney present.
If you are confined in a detention facility, it may be several hours to a couple of days before you appear before a judge who can consider releasing you. Do your best to stay calm and do not discuss the circumstances of the alleged crime with others. Any statements you make may be reported to the police and used against you.
If you are accused of a less serious crime, such as a minor traffic violation, the police may ask you to sign a citation instead of taking you into custody. If you sign the citation, you are promising to appear in court, but you are not admitting guilt. If you have no identification or refuse to sign the citation, the police may take you into custody.
After the arrest, you will be brought before a judge to be formally charged with a crime and provided an opportunity to be released while awaiting a trial. If you appear in court without a lawyer, the judge must allow you a reasonable time to find one before your trial. To decide whether to grant bail, the judge will consider various factors such as your family ties, financial resources, employment record, and the seriousness of the crime you have been charged with.
You can be detained without being arrested if the police suspect that you are engaging in a criminal activity or that you might be armed. For example, the police may ask you to identify yourself and conduct a limited search for weapons if they observe you pacing in front of a closed store in the dark. Or a store owner or employee might detain you for a reasonable time for questioning if they have a strong reason to believe that you have stolen or attempted to steal something.
For people who have never before faced criminal charges, an arrest can be a frightening experience. The stress of the arrest may cause you, your family members, or friends to overlook important matters, such as the right to remain silent and the right to advice from a lawyer. If you are arrested, you should consult a lawyer as soon as possible in order to protect your rights and defend yourself against charges made against you. He or she can also negotiate on your behalf with the police and the prosecution and advise you of the risks and advantages of cooperating with the authorities. Your lawyer can also help you with the bail process. If you cannot afford to hire a lawyer, you may ask the judge to appoint a court-paid lawyer for you.
Above all, do your best to stay calm. An arrest is not a conviction. You really are innocent until proven guilty.
The state of Georgia has specific rules for deducting points from drivers’ licenses after traffic violation. After a certain number of points are taken off your driver’s record, your license may be suspended, and our lawyers can help you fight against suspension or get your license back.View More Information
The driver’s license of any person under 21 years of age convicted of hit and run or leaving the scene of an accident in violation of Code Section 40-6-270, racing on highways or streets, using motor vehicle in fleeing or attempting to elude an officer, reckless driving, any offense for which four or more points are assessable under subsection (c) of Code Section 40-5-57, or a violation of Code Section 40-6-391 shall be suspended by operation of law as provided by this Code section.View More Information
The driver’s license of any person under 21 years of age convicted of hit and run or leaving the scene of an accident in violation of Code Section 40-6-270, racing on highways or streets, using motor vehicle in fleeing or attempting to elude an office, reckless driving, any offense for which four or more points are assessable under subsection © of Code Section 40-5-57, or a violation of Code Section 40-6-391 shall be suspended by operation of law as provided by this Code section. A plea of nolo contendere shall be considered a conviction for the purposes of this law.
The driver’s license of any person under 18 years of age who has accumulated a violation point of four or more points under Code Section 40-5-57 in any consecutive 12 month period shall be suspended by the department. A plea of nolo contendere shall be considered a conviction for purposes of this law.
In Georgia, it is against the law to operate any moving vessel while under the influence of alcohol, drugs, whether illegal or prescription, to the extent that it is less safe for the person to do so. Like Driving Under the Influence (DUI) charges, in Georgia a Boating Under the Influence (BUI) charge carries heavy fines and penalties that can have a significant impact on your life.View More Information
If you have been cited or arrested for Boating Under the Influence in Georgia, you will only have 10 days to appeal the suspension of your privilege to boat in Georgia. If this appeal is not filed timely, you will lose your privilege to boat in Georgia for up to 1 year.
when the evidence only shows the mere presence of alcohol but no "manifestations of impairment" were observed. An odor of alcohol or a positive Alco-sensor (breathalyzer) result shows that you likely had consumed some amount of alcohol but does not show that you were actually impaired or less safe to operate a watercraft. Poor performance on field sobriety evaluations, however, can be used as evidence of impairment.
It is also against Georgia BUI law for any person's blood alcohol concentration (BAC) to be "0.08 grams or more at any time within three hours after such operating, navigating, steering, driving, manipulating, or being in actual physical control of a moving vessel, moving water skis, moving aquaplane, moving surfboard, or similar moving device from alcohol consumed before such operating, navigating, steering, driving, manipulating, or being in actual physical control ended." O.C.G.A. Section 52-7-12(a)(4).
The offense is commonly referred to as "BUI per se" and requires the State have a chemical test result in evidence to prove that the person's BAC was 0.08 grams or more, as opposed to "BUI less safe." The penalties for BUI Less Safe and BUI per se are the same. Effective May 15, 2013, the "per se" blood alcohol level for BUI was lowered to 0.08 grams to mirror Georgia's DUI law. O.C.G.A. Section 52-7-12(a)(4). The previous BAC was 0.10 grams for all cases that arose prior to May 15, 2013.
A person under the age of 21 can be arrested for BUI in Georgia if his or her BAC is 0.02 grams or more at any time within three hours after being in physical control of a moving watercraft. This also mirrors the Georgia DUI laws. This can result in a situation where an under age 21 boater can be found guilty of Boating Under the Influence, while actually not being impaired.
If there is a chemical test of the person's blood alcohol concentration, certain presumptions can be made about the person's level of impairment. These presumptions can be rebutted, however, due to the fact that each individual responds to and processes alcohol differently. If the person's BAC was 0.05 grams or less, it is presumed that the person was not impaired. The inference can be rebutted, however, by evidence of erratic behavior or other clues of impairment observed by the officer.
No inference is created for BAC levels greater than 0.05 grams, but less than 0.08 grams. If the person's BAC was 0.08 grams or more at that time or within three hours of being in actual physical control of a moving watercraft due to the consumption of alcohol before such physical control ended, the person is in violation of Georgia's "BUI per se" statute.
Georgia's BUI laws fall under the Georgia Boat Safety Act which means BUI laws only apply to boaters on public waterways, and not to boaters on private lakes like Lake Arrowhead in Cherokee County. But Lake Lanier, Lake Oconee, Lake Allatoona, Lake Burton as well as Georgia's other waterways are patrolled by the Department of Natural Resources and local law enforcement agencies.
Law enforcement does not need any reason to stop a person's vessel on a waterway. In Georgia, safety checks are permitted on boats without any probable cause of any criminal wrongdoing. This is a key difference between boating and driving, and the Georgia DUI laws. At least reasonable suspicion is needed to pull over any Georgia driver. There must be probable cause to arrest a person for DUI.
If an officer observes signs of impairment after performing a safety check, the officer can then further detain the person for purposes of investigating whether the person is under the influence of alcohol or drugs and is safe to operate the watercraft. During the investigation, the officer will be looking for clues such as the admission of drinking, slurred speech, bloodshot eyes, fumbling, repeating questions or comments, the odor of alcohol on the person's breath, and proving incorrect or inconsistent answers.
Many of the officer's observations will only show a likelihood of the presence of alcohol but will not show that the person is actually impaired. Many law enforcement officers are trained to administer standardized field sobriety tests that are designed to assess the person's mental and physical impairment. Many tests are administered when BUI is suspected as when a DUI is investigated. The officer may administer the horizontal gaze nystagmus test, a scientific test, as well as ask you to recite the alphabet, count backwards, perform a dexterity test, or submit a breath sample in an Alco-sensor.
During the field sobriety tests, the officer will be evaluating the person's performance by looking for certain clues. These clues, if observed, may provide the officer with probable cause to arrest for BUI. Performance on the field sobriety tests will be used as evidence to prove that the person was less safe to operate a watercraft. The officer's arrest decision is based on the totality of the circumstances involved.
If the person is subsequently arrested for BUI, Georgia law requires law enforcement officers to follow certain procedures to request a chemical test to determine the person's blood alcohol concentration. If those procedures are not adequately followed, it can lead to key evidence being inadmissible at trial and can mean the difference between a conviction and a dismissal of all charges.
Any person operating a watercraft or vessel on the waters of this State is deemed to have given consent to a chemical test of his or her blood, breath, or urine to determine the presence of alcohol or drugs if arrested for BUI or involved in an accident resulting in a fatality or serious injury.
The arresting officer must read the appropriate Georgia Implied Consent Notice depending on the person's age. There are separate notices for operators age 21 or over, and those under age 21. This is due to differences in the "per se" level of impairment under Georgia law. This mirrors the differences in the DUI Laws of Georgia.
The Implied Consent Notice for Suspects 21 or Over is as follows:
Georgia law requires you to submit to State-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your privilege to operate a vessel on the waters of this State will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing, results of that test or tests may be used against you. If the results of such test or tests indicate an alcohol concentration of 0.08 grams or more or the presence of an illegal drug, your privilege to operate a vessel on the waters of this State may be suspended for a minimum period of one year. After first submitting to the required State tests, you are entitled to additional chemical tests of your blood breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the State-administered chemical tests of your (designate which tests) under the Implied Consent Law?
If the person refuses to take the requested chemical test, the refusal to submit can be used as evidence in the criminal case. Georgia law further states that any person who is dead or unconscious, or otherwise in a condition making the person incapable of refusing has not withdrawn his or consent and the test may still be administered. This is the same in Georgia Vehicular Homicide Law, and Georgia Serious Injury by Vehicle Law.
Georgia has an administrative penalty, separate from the criminal proceeding, for any watercraft operator that refuses to take a State-administered test or submits to a State-administered test that shows a blood alcohol concentration of 0.08 grams or more, or, if the person is under age 21, a blood alcohol concentration of 0.02 grams or more. The vessel must have been motorized having ten or more horsepower or was a sailboat more than 12 feet in length. This penalty is a 12 month suspension of the person's privilege of operating a vessel on waters of this State and the suspension is implemented immediately after the arrest for BUI.
A request for hearing must be submitted within 10 business days after arrest or receipt of notice of suspension to appeal the suspension of the person's Georgia boating privileges. The request for a hearing is commonly referred to as the "10 day letter" and must include certain basic information as well as state the grounds for the appeal.
* The hearing is limited in scope and only covers the following issues:
* Whether the officer has reasonable grounds to believe the person was operating or in actual physical control of a moving vessel while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for BUI;
* Whether the person was involved in a vessel accident or collision resulting in serious injury or fatality;
* Whether the officer informed the person of his or her implied consent rights at the time a test was requested
* Whether the person refused the test; or
* Whether a test was administered and the results indicated a BAC of 0.08 grams or more or, if the person is under the age of 21, a blood alcohol concentration of 0.02 grams or more; and
* Whether the test was properly administered.
If the test was refused, the person's boating privileges will be suspended for a 12-month period. If the person submitted to a test and the results showed a BAC of 0.08 grams or more or, if the person is the age of 21, a blood alcohol concentration of 0.02 grams or more, the person's boating privileges will be suspended for a period of one year. If proof that a DUI Alcohol or Drug Risk Reduction Program (DUI School) has been completed, the certificate of completion is submitted and a restoration fee of $200.00 is paid. In this case, the person's boating privileges may be reinstated as soon as 120 days. Previously, privileges could be reinstated as soon as 30 days and no restoration fee was required. A second administrative suspension within five years will lead to a three-year suspension, with eligibility for reinstatement after 18 months. A third or subsequent suspension within five years will lead to a five-year suspension with no early reinstatement.
If boating privileges are suspended administratively, that suspension will be lifted if the BUI charges are dismissed, the charges are reduced, or if the person is acquitted. So, if you win your case, then the victory in the criminal court will supersede the administrative boating suspension.
Operating a watercraft within Georgia while boating privileges are suspended is a misdemeanor offense punishable by a fine not less than $500.00 nor more than $1,000.00. A second offense within five years is a high and aggravated misdemeanor offense punishable by a fine of not less than $1,000.00 nor more than $1,500.00. Each conviction will extend the period of suspension by an additional six months.
A BUI will not suspend or have any effect on a person's Georgia driver's license or privileges to drive in this State. Only a person's boating privileges can be suspended due to a BUI. This is a commonly-held misconception. However, BUI is a serious misdemeanor that can result in jail time and other court-mandated sanctions.
Because a BUI is a misdemeanor offense, the maximum penalty is 12 months in jail and a $1,000.00 fine plus court surcharges. The minimum sanctions are 24 hours in jail with credit for time served at arrest, 12 months probation, a fine of $300.00, 40 hours community service (only 20 hours are required if the person's BAC was less than 0.08 grams), completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation and any recommended treatment. If convicted, a BUI charge will remain on your criminal record forever, which can affect your ability to gain future employment, enroll in school, and receive financial aid.
A second BUI offense in Georgia within a 10-year period has maximum sanctions of 12 months in jail and a fine up to $1,000.00. The minimum sanctions are 72 hours in jail with credit for time served at arrest, 12 months probation, a fine of $600.00, 240 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation along with any recommended treatment.
A third conviction of BUI within a 10-year period is a high and aggravated misdemeanor punishable by a fine of $1,000.00 to $5,000.00. The minimum sanctions are 15 days in jail with credit for any time served at arrest, a $1,000.00 fine, 12 months probation, 240 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, and a clinical evaluation along with any recommended treatment.
A fourth or subsequent BUI in a 10-year period is a felony offense and punishable by a fine of $1,000.00 to $5,000.00, not less than 90 days nor more than 5 years in prison, 480 hours community service, completion of a DUI Alcohol or Drug Use Risk Reduction Course, a clinical evaluation and any recommended treatment, and 5 years probation less any days spent in actual confinement. Only arrests occurring after May 15, 2013 will be considered in calculating the number of convictions within a ten-year period.
With any BUI fines, one-half of any fine imposed may be suspended by the judge at the judge's sole discretion if the person undergoes treatment in substance abuse treatment program.
Further, any person who is charged with BUI while a child under the age of 14 is on watercraft or being towed on water skis, an aquaplane, a surfboard or similar device will also be charged with the separate offense of Child Endangerment. A separate count of child endangerment will be charged for each child under the age of 14 present at the time of arrest. Just like in DUI Child Endangerment, each child in the boat creates a separate criminal offense on top of the BUI.
The maximum penalty for a first or second Child Endangerment misdemeanor conviction in Georgia is 12 months incarceration and a $1,000.00 fine plus court surcharges. A third or subsequent conviction will be a felony and is punishable by incarceration for one to three years and a fine of $1,000.00 to $5,000.00 plus court surcharges.
A person may face much more serious charges if an accident or collision occurs while a person is operating a watercraft that results in serious injury or death.
Serious Injury by Vessel can be charged if a person causes another person bodily harm through an offense of speeding greater than idle speed within 100 feet of a moored vessel or a person in the water, or shoreline, operating a vessel in a boating safety zone, failing to render assistance as required, failing to stop for law enforcement, reckless operation, or BUI. The statute defines serious injury as "depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless." O.C.G.A. Section 52-7-12.4. Serious Injury by Vessel is a felony offense and is punishable by imprisonment for not less than one year nor more than 5 years. A person's boating privileges will also be suspended in Georgia for 3 years if convicted.
Homicide by Vessel is a very serious charge in Georgia and carries severe penalties. Homicide by Vessel in the First Degree is a felony offense if the death is caused by a serious violation such as speeding greater than idle speed within 100 feet of a moored vessel or a person in the water, or shoreline, failing to render assistance as required and leaving the scene of an accident or collision, operating a vessel in a boating safety zone, failing to stop for law enforcement, reckless operation, or BUI and is punishable by not less than 3 nor more than 15 years in prison.
Homicide by Vessel may be charged as Homicide by Vessel in the Second Degree if the death was the result of a violation of any other boating offense not enumerated in Homicide by Vessel in the First Degree. Homicide by Vessel in the Second Degree is a misdemeanor offense with a maximum punishment of one year in jail and a $1,000.00 fine.
Flotation Device Regulations:
O.C.G.A. Section 52-7-8(d)(3) has been amended as of May 15, 2013, to require that all children under the age of 13 wear personal flotation devices when aboard a moving vessel on Georgia waters other than when the child is within a fully enclosed roofed cabin or other fully enclosed roofed compartment or structure on the vessel.
Kile Glover Boat Education Law:
Effective July 1, 2014, this law requires that anyone age 12 through 15 may operate a personal watercraft on Georgia waters if accompanied by an adult 18 years or older or if he or she has completed a boating education course approved by DNR prior to operation of such vessel. Further, any person born on or after January 1, 1998, who operates any motorized vessel on the waters of Georgia must have completed a boating education course, unless the person is a licensed member of the US Coast Guard, operates the vessel on a private lake or pond, or a nonresident who has completed a National Association of State Boating Law Administrators' approved boater education course or the equivalency from another State and has proof of completion in his or her possession. O.C.G.A. Section 52-7-22(b) & (c).
A DUI charge can cause a major disruption in your life. Because of the political pressures brought to bear on the system, a DUI has become a very expensive and time-consuming charge to deal with correctly. The information contained below is provided in an effort to give you a basic understanding of what has got you to this point as well as an overview of various DUI defenses that can be used.View More Information
A DUI arrest begins with a stop of some nature by a law enforcement officer. Keep in mind that you have constitutional rights. An officer cannot just initiate a traffic stop on your vehicle for a random or arbitrary reason. There needs to be what is called a reasonable and articulable suspicion that there is some wrongdoing. In effect, law enforcement cannot just pull you over for any reason. There has to be a legitimate reason that you are being pulled over for you to be prosecuted.
Articulable suspicion is established when an officer allegedly observes a traffic offense such as: Speeding; Failure to Maintain Lane; Following Too Closely; Aggressive Driving; Weaving Within a Lane; and Any Form of Reckless Driving. These offenses give the officer a basis to pull over a vehicle. Also, many cases begin when there is an at-fault accident. Causing an accident is enough to initiate a DUI investigation. If the officer had no reason to stop you because you were not violating any rules of the road, this may be used as a defense. In DUI cases, some of the common reasons that people are pulled over is failure to maintain a lane or making an improper lane change. However, there may be a myriad of reasons that you committed a traffic infraction that have nothing to do with being impaired. For example, you may have swerved because you were checking your phone, or failed to signal because there was not another car coming that you needed to notify of your lane change.
Also, many arrests occur at a roadside checkpoint commonly called a DUI roadblock. However, the police cannot just implement a roadblock any time or any place. A roadblock is an exception to the 4th Amendment to the United States Constitution. As an exception, this means the general rule would not allow for drivers to be stopped without sufficient cause. As a result, the exception should be narrowly drawn to protect the rights of drivers. An experienced DUI Attorney will know how to challenge the legality of the roadblock that resulted in your arrest. Law enforcement departments have to follow certain rules in order to conduct a road block. Those are Constitutional requirements, and if they are not followed, this can form the basis of a defense as the entire stop may have been illegal.
Probable Cause is the standard necessary to arrest a person. The standard is whether there is sufficient evidence that a crime likely occurred. It is not evidence beyond a reasonable doubt, which is the standard to find a person guilty of a crime. Police officers are trained to look for some particular manifestations of DUI to establish probable cause to arrest:
Field Sobriety Testing is commonly used to establish probable cause to arrest. These tests are created by the National Highway Safety Traffic Administration (NHTSA) and are designed to help officers determine probable cause to arrest people suspected of DUI. NHTSA claims that these tests show a correlation to alcohol impairment. However, none of their studies are peer reviewed, and they commonly rewrite their student manual without the advent of new studies to support their new procedures. One such example just occurred in the 2013 revised student manual. NHTSA has taken out all the references to how the testing can be ineffective on obese or elderly people. They deleted language without any reference to any new peer-reviewed studies validating their new procedures.
Horizontal Gaze Nystagmus: This test is where an officer does a series of tests involving a suspect following a stimulus. The officer is looking for an involuntary "nystagmus" (a jerking movement) in the eyeball. However, some people are poor candidates for an HGN test because they have natural nystagmus or have had concussions or other head and eye conditions that can make the test nonreliable.
Walk & Turn: This test consists of nine heel-to-step steps along a line, and nine heel-to-toe steps backward. Police officers will try to observe "clues" consistent with intoxication. Some common clues DUI officers look for are starting before you are told to start or usually walking instead of making heel-to-toe steps. Other clues include raising your arms for balance, stepping off the line, making an improper turn, taking an incorrect number of steps, and failing to complete the test.
One Leg Stand: The final standardized field sobriety test used to determine DUI is the one leg stand. This test requires you to stand on one foot for 30 seconds with your arms at your sides. The officer is looking for four clues including, putting your foot down, raising your arms for balance, swaying, and hopping.
It is important to note, however, that people can do badly on these tests for a variety of reasons. For example, some people have a nystagmus that occurs naturally or is caused by medication. So, looking for a nystagmus in those individuals would not be a good indication or indicator of intoxication. Weight and age could also affect how a person performs a field sobriety test, as can environmental conditions like bad weather, lighting, or having to perform the tests on hills.
DUI officers occasionally ask drivers to partake in other non-standardized tests like saying the alphabet or counting to a certain number in their head. These tests have not been validated to show any indication that a driver is under the influence. A DUI officer often has a video camera equipped with his patrol car to record the driver completing the field sobriety tests. In many instances, these tapes can help the defense if someone does a good job and appears to walk and speak normally on the tape. In many instances, these tests are not done according to the prescribed methods. If the prescribed methods are not used, then you can prove results are invalid.
In additional to standardized field sobriety testing (and other field tests) is the roadside alco-sensor test. That is the most commonly misunderstood test and therefore warrants discussion. The alco-sensor test is not the State-administered test. The alco-sensor is a roadside screening test not deemed to be particularly accurate. As a result, the prosecution cannot use the numeric outcome of the test. The arresting officer can only state that the test was positive or negative for the presence of alcohol.
Many people confuse the roadside test with the official breath test. As a result, some people will refuse the official test because they already believe they have cooperated and provided a sample before being arrested. Those same people are shocked when they learn that they are accused of refusing the breath test.
No one accurately explains to suspected DUI drivers the difference between the road-side test and the Intoxilyzer 9000 test at the station. The implied consent card does not explain it, and it is legitimately confusing to people being asked to make an immediate decision on the side of the road.
Once a law enforcement officer believes there is probable cause to arrest, he is required to read a person their implied consent rights outlining a person's right and duties under Georgia Law. Under our laws, a driver is required to submit to a test of their breath, blood, or urine when arrested for DUI. If the testing is refused, then the State will suspend his Georgia driver's license or privilege to drive on our roads if the driver holds an out-of-state license.
This is why driving is technically not a right but a privilege that can be taken if a person is afforded due process of law. The Georgia Department of Drivers Services will suspend any driver who refuses a chemical test if they have been properly pulled over for DUI and read their implied consent right. Law enforcement officers are required to read the State's implied consent notice before asking you to submit to a chemical test. If mistakes are made such as the officer does not follow the proper protocol, does not read the notice, or the notice is not the current or correct version, you may be able to get the results of the chemical test suppressed. The suspension for refusal is a one-year license suspension. Refusal suspensions are considered a "hard suspension" because the drivers are not afforded a limited or restricted permit to drive.
In the alternative, when a driver takes a breath test, the potential driver's penalty is not a severe situation. In that situation, in a first offense the driver will qualify for a permit to drive in the event they are administratively suspended.
When a client submits to a breath test, there are many potential challenges in their cases that are unavailable in refusal situations. For example, the officer is supposed to observe the driver for 20 minutes continuously prior to testing. The machine must be calibrated and inspected quarterly. Two samples must be given, and both samples must be within perimeters, (meaning within .02 of each other). The printout of your Intoxilyzer 9000 test will provide the details of the testing in your case.
Once you take the State's test, you have the right to ask for an independent test by a provider of your choosing (within reason) and at your expense. If the officer fails to accommodate your request for an independent test reasonably, you can have the results of the state-administered test suppressed from the trial in your case. You have to pay for your independent test, but the officer must accommodate you in a reasonable manner. For example, an officer must take you to an ATM to get money to pay for the test. The officer cannot select the medical provider or hospital, but your selection must also be reasonable insofar as time commitment and location.
Refusal can potentially result in the worst of all DUI outcomes. It's counter-intuitive because many people tell me they refused to avoid evidence against themselves. People certainly have the 5th Amendment right against self-incrimination and a 4th Amendment right against unreasonable search and seizure. If an officer determined that you refused to take a test, you can challenge this determination if you did not actually intend to refuse. For example, if you were silently debating what to do, this may have been misconstrued as refusing to submit to the test, even though you made no affirmative statement that you were not going to cooperate.
However, those criminal rights have little bearing on a person's driver's license. Driving is a privilege and not a right, and, as a result, can be taken away without proof beyond a reasonable doubt. You have the right to due process of law and a hearing. However, the standard of proof at ALS hearings is the civil preponderance of evidence standard. As a result your license can be taken before you are proven guilty beyond a reasonable doubt.
At the time of your arrest, the police officer will likely take your driver's license and give you a DDS-1205 form. This form acts as a 30-day permit during your appellate procedure. What confuses people is that they are given a court date but not a license appeal date. The criminal process happens to anyone arrested whether or not they choose to participate. It will happen no matter what you do.
However, the civil license appeal only happens if you request the hearing and pay the $150.00 filing fee. Otherwise, you will have your license suspended on the 31st day after your arrest. So, it's vital to have your attorney file the appeals as soon as possible. Your case will not defend itself. For more detailed discussion of the 1205 Hearing/Implied Consent. See the Section Under Types of Arrest/Charges entitled ALS (1205) Hearings/Implied Consent: Hearing vs. Ignition Interlock.
One of the most common ways for a police officer to determine if there is alcohol in your system is by way of a blood or breath test. Unfortunately, what law enforcement relies upon to provide conclusive evidence is often faulty and defective.
According to the State of Georgia, anytime you are driving a vehicle you have given "implied consent" to be tested for blood alcohol concentration (BAC). This means that if you exhibit behavior that leads an officer to suspect intoxication at the wheel, they can pull you over and administer a blood or breath test.
The breath test is the most common type of BAC test used, but what many citizens do not know is that Georgia continues to use outdated breathalyzer technology. Because it can be so inaccurate, there are a number of different variables which may affect your indicated BAC level.
These factors can include the following:
All of these variables and more have a huge impact on your test results but are far too often disregarded by police officers.
A positive blood test result in a DUI case may seem like a nail in the coffin, but it is not. Just because the test in your DUI came back with a result of .08 or greater does not mean you are on a one-way course to conviction. There are many ways you can challenge this test result, calling into questions every step of the process to raise doubt about your guilt.
With the right legal representation in your corner, the aftermath of a DUI can be significantly less damaging to your record and career. Blood draws must be conducted by skilled professionals and the whereabouts of the blood sample must be meticulously recorded. This multi-step process is imperfect, and there is plenty of room for human error.
Challenging a DUI blood test begins with an investigation into the DUI arrest itself. The police may have blood test evidence against you, but this evidence could prove inadmissible if law enforcement did not adhere to the strict guidelines dictating how to go about a DUI arrest. These guidelines are meant to protect Georgia citizens from unfair treatment that infringes on their rights. If your arresting officer did not uphold all of your rights or did not make you aware of them, you may be able to get your case dismissed.
In order to initiate a traffic stop, the officer must first have a basis to pull you over, such as erratic driving or failure to obey traffic signs. After field sobriety tests, if the officer suspects you are under the influence of drugs or alcohol, you will be taken to the station and required to give a sample of blood, breath or urine (chemical testing). Under Georgia law, chemical testing is not meant to be negotiable if there is concrete evidence that the suspect was behind the wheel.
The Georgia implied consent law holds that anyone who operates a vehicle has already consented to give a sample of blood, breath or urine at any time to prove their sobriety if it is called into question. Despite the existence of this law, you still have the right to refuse, though it comes with consequences: an automatic one-year license suspension. You have 30 days from the date of arrest to retain a Georgia DUI attorney and appeal your suspension. After these 30 days, your suspension cannot be appealed.
If you refuse, a warrant can be obtained to require you to provide a blood sample. The recent United States Supreme Court decision in the case of Birchfield v. North Carolina, may have an impact on your case, depending on the circumstances. In that case the court determined that a driver can give implied consent to a warrantless blood test, as the court considered this kind of test invasive. In order for an officer to get a blood sample, he or she would generally need to get a warrant first. However, the court did find that requesting a defendant to take a breath test without first obtaining a warrant was permissible, as the court considered this type of test to fall into the search incident to arrest exception to the Fourth Amendment's warrant requirement.
At your own expense and after the police obtain a blood sample, you can request another blood test from qualified personnel of your own choosing. A Georgia citizen is fully within his or her rights to demand additional blood tests and Georgia must accommodate them if they choose to do so. If law enforcement chooses not to accommodate the request, their own blood test evidence against the suspect may be thrown out.
Law enforcement is required to inform you of all of your rights with regard to chemical testing and the consequences of your refusal. If they fail to do so, your lawyer can point to it as a failing on their part, which may help your case. Prior to administering the blood or breath test, law enforcement will read you an implied consent card, letting you know your rights in the situation.
A trained professional conducts the blood draw, collecting an exact sample size. Sample size errors within a margin of even 1/10 will invalidate the result. Equipment must be sterilized to give a valid result. Contact with other unsterilized equipment, surfaces or objects could reasonable contaminate a sample and invalidate the result. The properly stored sample is transported to a lab, where it is heated in a closed vial. Any alcohol present in the sample becomes gas. A gas chromatography analyzes the gaseous sample and determines the amount of alcohol that was in the blood. All equipment must be properly calibrated. The samples must be tested by skilled lab technicians. As the sample changes hands before it arrives at the laboratory, its chain of custody must be recorded at every point. If the sample's whereabouts are unaccounted for, even the shortest duration, the integrity of the sample cannot be guaranteed and the results are invalid. The proper storage of the sample can also be probed by an attorney. If the sample was improperly stored, there is a chance fermentation could occur and artificially inflate the blood alcohol content reading.
Every DUI case is different, but one thing remains the same; if you have been charged with driving under the influence in Georgia, you should not proceed without an experienced DUI attorney at your side.
Drug cases are more common than you think and there are several variations in charges and drug related laws depending on the amount and type of drug in your possession.View More Information
Georgia drug laws can generally be broken down into three basic categories: trafficking, possession with intent to distribute, or simple possession. While virtually all drug offenses in Georgia are felonies, trafficking offenses carry severe mandatory minimum prison sentences that increase with the quantity of the drugs.
Trafficking cocaine is defined as selling, manufacturing, delivering or knowingly possessing 28 or more grams of cocaine. If the quantity is at least 28 grams but less than 200 grams, the penalty is a mandatory minimum sentence of 10 years. For quantities of at least 200 grams but less than 400 grams, the law requires a minimum sentence of 15 years. More than 400 grams of cocaine carries a minimum sentence of 25 years.
When it comes to morphine or opium (including heroin), a person commits the crime of trafficking when he or she possesses 4 or more grams. Selling, delivering or possessing 4 or more grams but less than 14 grams requires a minimum sentence of 5 years. Quantities between 14 grams and less than 28 grams require a sentence of at least 10 years. For 28 grams or more, the law demands a sentence of at least 25 years.
Trafficking in marijuana is defined as selling, manufacturing growing, delivering or possessing more than 10 pounds of marijuana. An amount greater than 10 pounds but less than 2,000 pounds requires at least a 5-year sentence. An amount between 2,000 but less than 10,000 pounds requires a minimum sentence of 7 years. For 10,000 or more pounds, the minimum sentence is 15 years.
For methamphetamine or amphetamine, trafficking involves the sale, delivery, or possession of 28 or more grams. Amounts between 28 but less than 200 grams will result in at least a 10-year sentence. For amounts between 200 but less than 400 grams, there is a mandatory minimum of 15 years. Greater amounts trigger a 25-year mandatory minimum sentence. Manufacturing these drugs carries its own penalties, which are virtually the same as above. The only difference is that the manufacturing of any amount under 200 grams requires a minimum sentence of 10 years.
While the above-listed sentences are mandatory minimum sentences, there are three different ways a defendant can be sentenced to less than the mandatory minimum. First, the District Attorney can file a motion asking the sentencing court to reduce or suspend a sentence if the defendant provides substantial assistance in the identification, arrest, or conviction of any other individuals in the drug operation. Second, the sentencing court may use its own discretion to depart from a mandatory minimum sentence if the defendant was not a leader in the drug operation, if the defendant did not possess a weapon, the criminal conduct did not result in a death or serious bodily injury, the defendant has no prior felonies, and the interests of justice will not be served by applying the mandatory minimum sentence. Third, the sentencing court may depart where the District Attorney and the defendant have agreed to a sentence that is below a mandatory minimum sentence.
In defending a drug charge, a criminal defense attorney will normally try to determine whether the search and seizure that led to the discovery of drugs was legal. If the drugs were discovered in a vehicle, the attorney will have to determine if the officer who stopped the vehicle had cause to do so. It will also have to be determined if the officer had cause to search the vehicle or if consent was given by the accused. If the drugs were discovered in a home, an attorney will have to verify that the search was based on a valid search warrant or other probable cause. If the police violated a person’s rights, a judge may be forced to suppress any evidence of drugs.
Another defense to drug charges is to argue that the defendant was not in possession of the drugs. A person’s mere presence where drugs are found is not enough for a conviction. There must be some additional evidence connecting the defendant to the drugs that were discovered.
There are two types of possession under the law. Actual possession occurs when the defendant had knowing and direct physical control over the drugs. Constructive possession occurs when the defendant had the power and intention to exercise control over drugs, but not actual possession. Constructive possession of contraband and participation in the illegal act may be shown by direct and circumstantial evidence. For example, a defendant’s attempts to flee or elude police; inconsistent explanation by the defendant for his behavior, the presence of significant amounts of contraband and drug paraphernalia in plain view, the defendant’s possession of large amounts of cash…or drug-related paraphernalia; evidence that the defendant was under the influence of drugs; or drug residue found on the defendant are circumstances from which a defendant’s intent to control contraband may be inferred. There is also a presumption that the owner of a dwelling or the owner or driver of a car is in possession of any drugs that are found in the home or car. This presumption may be rebutted if the defendant can show that others had equal access to the car or home.
Many other potential defenses are available to a person accused of a drug crime. If you have been charged or are being investigated for a Georgia drug crime, you need an experienced Georgia defense lawyer who will defend your legal rights. My firm has successfully represented clients charged with drug trafficking and drug possession for over 24 years. If you have been charged with a drug crime, my firm may be able to help.
The information provided above is a very general summary of Georgia drug laws at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal questions, you should always consult a Georgia criminal defense lawyer. I am licensed to practice in the state and federal courts of Georgia.
Child molestation charges create a sensitive, traumatic situation for everyone involved. It is also common for suspects in these cases to be falsely accused.View More Information
Child molestation charges are obviously very serious, and can be one of the most difficult criminal cases to properly defend. My team has decades of experience in winning these cases at trial. Jeff Talley has developed an effective approach to these cases through the use of qualified experts and investigators, proven defense theories, and plain old hard work to help our clients respond to false allegations of child molestation and related crimes.
Under Georgia law sex crimes against children include CHILD MOLESTATION and AGGRAVATED CHILD MOLESTATION. Child molestation is defined as performing any indecent or immoral act on or within close proximity of a child under 16 years of age while intending to satisfy the desires of the victim or the offender. The crime becomes aggravated when the conduct harms the child’s body or includes some form of sodomy.
Georgia law also makes it illegal to ENTICE CHILDREN FOR INDECENT REASONS, and to sexually exploit children. A person illegally entices a child when he propositions, lures, or transports a child to a location in order to molest the child or to perform acts that are deemed indecent.
SEXUAL EXPLOITATION OF A CHILD involves using, persuading, inducing, enticing or coercing any minor to participate in explicit behavior of a sensual nature in order to generate some visual depiction. Additionally, it is illegal for a person to generate, duplicate, dispense, encourage, convey, or own with the intention of conveying or dispensing any visual depiction of a child in such conduct. The same law also makes it illegal to possess such material.
Defending sex crime allegations is often a complicated and lengthy endeavor. Among the first steps is to examine the statements made by the alleged victim or witnesses for any inconsistencies and the circumstances under which the statements were made. Inconsistent statements or a failure by law enforcement to follow standard protocol in attaining statements are indicators that an allegation is false. Children are exceptionally prone to suggestibility and coercion by adults or other children. Police officers or social workers not trained in the practice of interviewing children often extract statements that are exaggerated or purely fabricated. The way questions are phrased may lead to inaccurate responses. In many cases, these statements may be taped and offered to a jury of their consideration.
Defense counsel should also conduct an investigation into the background of the people involved in the case. The purpose of a background investigation is to search for any motive or explanation as to why the allegations were made. For example, it is not unheard of during a heated divorce for there to be false allegations of molestation. Allegations of molestation are often made by an adult with grievances towards another adult. In fact, there are times when a witness’ testimony regarding a child’s out-of-court statements is simply too unreliable, and a judge will not allow a jury to hear it. In the case of alleged adult victims, the social and legal history of the alleged victim will be examined for any red flags. Accusations are often made based on embarrassment, jealousy, or other emotions when no crime has been committed.
Medical evidence is another common issue raised at trial. With many sex crimes allegations, a medical report is produced. It is important for a defense attorney to interview any treating physicians or nurses if possible, since not all important information is contained with a medical report. Factors such as timing, the degree and type of damage, and physical evidence must be compared with the allegations. An expert witness may be needed to show that the allegations do not match the medical evidence, or that the evidence is benign in nature.
It is important to remember that false allegations can and do lead to convictions. That’s why it is absolutely necessary to hire an experienced criminal defense attorney who will defend your rights and fight for your interests. My firm has successfully represented those falsely accused of molestation and sex crimes for many years. If you have been accused of molestation or a sex crime, my firm may be able to help.
The information provided above is a very general summary of Georgia sex crime laws at the time the text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal questions, you should always consult a lawyer. I am licensed to practice in the state and federal courts of Georgia.
Since child pornography cases are primarily based on computer-related evidence, attorneys who handle these cases should be well-versed in interpreting computer data and must be able to recognize and obtain the type of data that will prove the client’s innocence. It is vitally important for lawyers to know how to use and analyze computer evidence and, more importantly when to retain a computer forensics expert.View More Information
Most child pornography cases stem from the use of peer-to-peer file sharing programs such as Ares, eMule, and Shareaza that provide access to a vast network of files. Many people use these programs to download pornography and the majority of it is legal adult pornography. Occasionally, a person may accidentally download a file containing child pornography but may not realize this until the file is actually viewed. While deleting the file will keep it out of sight to the user, this does not remove it from the hard drive of the computer or device. Thus, a person who has accidentally downloaded child pornography will still remain in possession of the file well after it is deleted.
In order for your attorney to prove that the file was accidentally downloaded, it is critical for the attorney to analyze the file and folder properties on the computer. Many times legal counsel can obtain the search terms used by the client to prove that the download was accidental. Since law enforcement will never be looking for this type of evidence during their investigation, it is imperative for legal counsel to search for and obtain this evidence in order to prove the client’s innocence.
Anytime a website is viewed, all of the pictures and videos on that site are automatically downloaded to what are known as “cache files,” or “temporary internet files.” These files are downloaded without the user’s knowledge and may remain on the computer for a long period of time. These cache files very often lead to the unknowing possession of child pornography.
Another type of cache file is a “thumbs.db” file. Thumbs.db files are system cache files that are created by Windows and are associated with actual image files stored somewhere on the computer. These files are also stored without the user’s knowledge and are typically hidden from view. Even if the image file is later deleted from the computer, the thumbs.ds file will remain on the hard drive. The problem is that the thumbs.db file contains the same picture that the image file contains – just in a lower resolution. So, if an image of child pornography is deleted from the computer, the associated thumbs.db file, containing that very same image, will remain on the hard drive without the user’s knowledge.
In Barton v. State, the Georgia Court of Appeals held that the presence of child pornography saved in a person’s cache files does not, by itself, constitute knowing possession of child pornography. The ruling in Barton, also applies to deleted files found in the unallocated space of the computer. To provide that a person knowingly possessed cache files or deleted files in the unallocated space, the prosecution will have to prove that the person actively sought out and stored these files on the computer.
With the assistance of computer forensics experts, your attorney can usually prove when a user has accidentally downloaded or possessed child pornography. Using software such as EnCase or FTK, the expert can retrieve date from the hard drive that enables your attorney to retrace the steps that led to the unwanted files entering the computer. For instance, an expert can assist your attorney in locating search terms used with the file sharing programs, internet history data, file properties that can show when files were downloaded or deleted, as well as extract data that will help create timelines surrounding the downloading of the unlawful files.
It must be stressed that very little of this data can be obtained from the hard drive without the use of a computer forensics expert. My firm is fortunate to be able to work with some of the best experts in the field and with their assistance have successfully proven the innocence of many people.
Murder is the most serious criminal offense you can be accused of. While the victim always deserves adequate justice, it’s equally important for the suspect to be charged only if they truly committed the crime.View More Information
MURDER occurs when an individual with premeditated malice unlawfully causes another person to die. The element of malice may be satisfied by showing an expressed or implied form of malice. The law also states that an individual commits murder when he causes the death of another while engaging in a felony. In such cases, malice does not have to be proven. The punishment for a conviction of murder is death or imprisonment for life.
Murder is reduced to a charge of VOLUNTARY MANSLAUGHTER when the defendant’s actions are due to a passion that is impulsive, aggressive, and irresistible stemming from a grave provocation that would create the same passion in a reasonable person. Generally, there cannot be an opportunity for the defendant to have calmed down between the provocation and the killing. A conviction carries up to 20 years in prison.
If a person unintentionally kills another during the commission of an unlawful act, that is not a felony; he can be charged with INVOLUNTARY MANSLAUGHTER and receive a sentence of up to 10 years. If a person kills another unintentionally while performing a lawful act in an unlawful manner that is likely to cause great bodily harm, the person may also be charged with involuntary manslaughter; however, the conviction of such a crime is only a misdemeanor.
AGGRAVATED BATTERY occurs when a person’s actions cause physical injury to another person through the loss of a body part or through the loss of function of a body part. A charge of aggravated battery is also appropriate when the injury results in disfigurement of the victim’s body or a part of the body. A conviction will generally result in up to 20 years. An aggravated battery committed upon a law enforcement officer will result in a 10 to 20-year sentence. In addition, if the alleged victim was 65 or older, the sentence will be between 5 and 20 years.
AGGRAVATED ASSAULT is another serious crime in Georgia. An individual commits this crime when he assaults another with the intention of murdering, raping, or robbing. An aggravated assault can also be committed when a person assaults another with a lethal weapon or device likely to cause serious injury to the body, or that actually does cause such an injury. A third way to commit an aggravated assault is when a person discharges a firearm towards another from a vehicle without legal justification. A conviction of this crime carries a sentence of between 1 and 20 years. If the assault is committed upon an officer, the minimum sentence is increased to 5 years. If the alleged victim is 65 or older, the sentence is a minimum of 3 years.
KIDNAPPING is defined as abducting any person without lawful authority and holding such person against his or her will. Kidnapping differs from false imprisonment in that kidnapping requires an additional element of transportation or movement of the alleged victim. Kidnapping carries with it a 10 to 20-year sentence for victims 14 years and older. For a victim of less than 14, a defendant can receive 25 years to life. If bodily injury occurs during a kidnapping, the penalty is life imprisonment. The crime of false imprisonment carries with it a sentence of 1 to 10 years.
A charge of OBSTRUCTION OF A LAW ENFORCEMENT OFFICER is a common charge. Obstruction occurs when a person deliberately opposes or resists any officer through a form of violence. It should be noted that this law requires that the officer be acting in his capacity as an officer for there to be a conviction. A conviction for obstruction carries with it a sentence of up to 5 years. Obstruction is a misdemeanor when a person deliberately hinders an officer from carrying out his duties, but no force or violence is involved.
A criminal defense attorney has many options in defending allegations of a violent crime. Of course, the state must always prove every element of a crime as charged. There can be no conviction if the state cannot prove every element beyond a reasonable doubt. For instance, kidnapping requires several elements, including transportation. If there is no evidence that the victim was moved against his will, there can be no conviction.
A defense attorney will also investigate the arrest and any police investigations that were conducted for possible defenses. Part of this work usually involves investigating the witnesses and alleged victims. Violent crimes are often the result of personal or emotional situations when tempers are running high. When cooler heads prevail, stories may change and a witness’ trial testimony may be inconsistent with the initial statement.
Additionally, criminal allegations are often made against people who were justified in their actions. This is referred to as an affirmative defense. A person is justified in using force against another to the extent that he reasonably believes that such force is necessary to defend himself or a third person against anothers imminent use of unlawful force. Furthermore, Georgia provides that a person may use deadly force if he believes that it is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.
Georgia also allows a person to defend his or her home. A person is justified in using force against another when he reasonably believes that such force is necessary to prevent or terminate another’s unlawful entry into the home. A person may use deadly force when the owner reasonably believes the intruder intends to assault someone or commit a felony inside the home. Deadly force is also generally allowed when the owner has reason to believe that an unlawful and forcible entry occurred when the intruder is not a member of the family or household. It is important to note that a person defending his or her home, self, or others has no duty to retreat and has the right to stand his or her ground.
Many other defenses are available to someone accused of a violent crime. In many cases, a skilled attorney will be able to negotiate for a reduced charge or have a charge dismissed entirely. A reduction could mean the difference between a felony and a misdemeanor. The complexity and gravity of violent crime charges underscore the necessity of an experienced attorney who will defend your legal rights. For many years, my firm has successfully represented clients charged with violent crimes. If you have been charged with a violent crime, my firm may be able to help.
The information provided above is a very general summary of Georgia’s murder and violent crime laws at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal questions, you should always consult a lawyer licensed to practice in your jurisdiction. I am licensed to practice law in state and federal courts of Georgia.
Under Georgia law, ROBBERY occurs when a person with the intent to commit theft, takes the property of another from another in the immediate presence of another by use of force, sudden snatching, intimidation, of use threat or coercion, or by placing a person in fear of immediate serious bodily injury to himself or another person.View More Information
An item that was taken does not need to have actual contact with the victim’s body. The item simply needs to be under the victim’s control or responsibility and not too distant from the victim. A conviction will result in a 1 to 20 year sentence. Additionally, if the victim was 65 or older, the defendant will be sentenced to between 5 and 20 years. The judge is also required to force the defendant to make restitution to any victim equal to the uncompensated portion of damages.
The more severe crime of ARMED ROBBERY is committed when a person intends to commit a theft and takes property from another or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such a weapon. An offensive weapon is essentially anything that is likely to produce death or great bodily injury.
Even the use of a toy replica may be sufficient to convict someone of armed robbery. A conviction will result in a mandatory minimum sentence of 10 years with the possibility of up to 20 years in prison. If the armed robbery occurs at a pharmacy in which the person takes a controlled substance and intentionally inflicts bodily injury upon any person, a conviction will result in a sentence of at least 15 years.
Georgia also makes it a separate offense for a person to possess or use a machine gun, sawed-off shotgun, sawed-off rifle, or a silencer-equipped firearm during the commission of a robbery. A conviction requires a sentence of 10 years which will run consecutively to any other sentences. A second offense will result in life imprisonment.
The crime of BURGLARY generally occurs when a person enters or remains within a building or structure without authority and with the intent of committing a felony or theft thereon. It is important to note that forced entry is not an element of burglary.
Intent to commit a felony or theft inside the home or structure may be inferred simply by the presence of valuables inside and no items need to have been actually taken for a conviction. A conviction will result in a 1 to 20 year sentence. A second conviction carries a 2 to 20 year sentence. A third offense carries a 5 to 20 year sentence.
A charge similar to burglary is CRIMINAL TRESPASS. However, criminal trespass is only a misdemeanor and often results from a reduced burglary charge. Criminal trespass may be committed in a variety of ways, including when a person knowingly and without authority enters upon the land or premises of another for an unlawful purpose. The crime can be also charged when a person enters upon the land or premises of another after being given notice by the owner that such entry is forbidden or remains upon the land or premises after being told to leave. Criminal trespass is also committed when a person intentionally damages property valued at $500.00 or less without consent. Similarly, this crime can be charged when a person knowingly and maliciously, interferes with the possession or use of the property of another without consent.
A criminal defense attorney has many options in defending allegations of robbery or burglary. Of course, the state must prove every element of the crime as charged. There can be no conviction if the state cannot prove every element beyond a reasonable doubt. For instance, robbery requires several elements including the intent to commit theft. If there is no evidence of this intent, there generally can be no conviction.
Georgia also provides for two affirmative defenses in the crime of burglary. This is if the defendant was authorized to be in the building or was authorized to enter the building. Any conflict in testimony between the defendant and the alleged victim is generally a question of credibility for the jury to resolve. The second affirmative defense is to argue a mistake of fact.
Many other potential defenses are available to a defendant accused of a robbery or burglary. If you have been charged with one of these offenses, you need an experienced Georgia attorney who will defend your legal rights. My firm has successfully represented clients charged with robbery and burglary and may be able to help.
The information provided above is a very general summary of Georgia’s robbery and burglary laws at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a Georgia criminal defense lawyer. I am licensed to practice in all state and federal courts in Georgia.
Drug Court is an accountability court that typically lasts two (2) years and requires you to successfully complete various phases prior to graduation. While in the program, individuals pay monthly fees, perform community service, attend drug and alcohol counseling classes, attend AA/NA meetings, be subject to random drug and alcohol screens, have full-time employment, etc. Upon successful completion of the program, the charges against the client are dismissed.View More Information
However, if you get caught up in the program and have violations or sanctions, the program can become a never ending cycle of doom. When being taken into the program, clients enter a plea to the charges for which they have been arrested. This is known as a blind plea. The client is not sentenced, and the case is held pending your efforts in the program. In essence, the court holds a prison sentence over your head. Additionally, the client enters into a drug court contract where he or she waives many of their constitutional rights. In the event you are terminated from the program, the judge can sentence you to anything within the parameters of the law for the offenses in which you entered the plea, which in most instances will involve being sent to prison. Further, depending upon individual performances, the (2) two year program can be extended or prolonged. For example, if you have failures or issues while in the program, you can be sent to inpatient rehabilitation, serve county jail time, be required to restart a phase, perform extra community service hours, etc. While the beauty of the program is a dismissal of the charges, the requirements are very intensive, time consuming, and overbearing in a lot of instances. It is suggested that you speak with your own private attorney prior to making the decision to enter into this program. A copy of the Drug Court contracts along with supporting documents are included here for your review.