Answers from an Athens DUI Defense Attorney
DUI charges are not as cut and dry as they may seem. There are numerous factors that impact a pending charge that can be used to build your defense. The Athens DUI defense lawyer of Law Offices of J. Lee Webb answers a few common DUI questions below.
To ask our team questions directly, call (706) 705-5122.
How do you beat an Athens dui charge?
Answer: When facing a criminal offense, like driving under the influence (DUI), beating your charge is critical. The number one factor when it comes to increasing your chances of a successful outcome is finding the right attorney. An experienced DUI attorney will be familiar with the best defenses that can be used to fight your case.
DUI defense is a complex blend of science, medical knowledge. and the law. The evidence used in drunk-driving cases is incredibly involved, and a DUI lawyer can use the science behind it to challenge the state's breathalyzer and field sobriety results that are being used against you. If the lawyer finds that the evidence was flawed in any way, it could be inadmissible in court-thereby destroying the prosecution's case.
Preparation is also imperative. By learning more about the evidence than the prosecutor and law enforcement agents involved in the case, a DUI lawyer can gain the upper hand. This plays an invaluable role in negotiating a favorable plea bargain or, if the case does go to trial, establishing lack of reasonable doubt to the jury.
How do you protect your license after a DUI arrest?
Answer: After you are arrested for DUI, there's two ways to lose your license. One is administrative. Georgia will suspend your driver's license if you register over a .08, or if you refuse the chemical test. You have 10 business days to file a letter with the Department of Driver Services requesting a hearing, or your license will automatically go into suspicion for either refusing or being over a .08. The second way to lose your license after a DUI arrest is in court. If you are found guilty of DUI or plead guilty to DUI, your license will be suspended by the Department of Driver Services.
What are the penalties for refusing the Georgia breath test?
Answer: The penalty for refusing a breath test is that your license can be suspended by the Department of Driver Services at an administrative suspension hearing. Again, Georgia will suspend your driver's license because you refused the test. They will give you due process, that means you do get the opportunity to have a hearing to determine whether you did, in fact, refuse the chemical test that the officer requested. There are no penalties in court. They can use a refusal to take the chemical test to infer that you had alcohol in your system, but that's all they can do as far as refusing in court.
What are the repercussions later in life from a drug or alcohol offense?
Answer: Repercussions later in life from drug or alcohol offense are going to vary from person to person. But typically employment opportunities can be lost depending on what kind of career path you're on or who is doing the interviews for the position. If they see a drug charge or an alcohol charge, they're going to tend to question your decision making. There's also certain jobs that you cannot have if you have a drug or alcohol charge. A good example is the military-you'll be kicked out of the military with a drug or alcohol charge. It can also keep you from getting into graduate school. It can also get rid of a HOPE Scholarship if you're on the HOPE Scholarship. So there's a lot of negative impact from a drug or alcohol charge.
What does 'less safe' mean?
Answer: A less safe DUI is an alternate way of charging DUI. And what that means is that you're driving under the influence of alcohol to the extent you are less safe to drive; that alcohol has made you less safe than you normally would be to operate a vehicle. It's not as easy to prove less safe driving as it is with per se driving. The state has to prove two things: one, that you're under the influence of alcohol; and two, that you are a less safe driver because of it. .
What does 'per se' mean?
Answer: A per se DUI simply means that you're driving with an alcohol concentration of 0.08 grams or more. Per se is a strict liability offense, and what that means is the prosecutor does not have to establish any mental element for the crime; they don't have to show that you intended to do it, acknowledged that you were doing it. They simply have to show that you were operating a vehicle while over the legal limit.
What is implied consent in Georgia?
Answer: When you drive on Georgia roads, you have given consent to a chemical test of your blood, breath or urine. It's implied because you haven't signed anything, but by getting a driver's license-or if you're from out of state, just driving on the roads-you've given consent to a test if a police officer suspects you of driving under the influence. Most every state has some form of implied consent laws.
Are there certain health conditions that could affect the breath test?
Answer: There are certain health conditions that can affect the breath test. One of the easiest ones is diabetes. If you're diabetic, then your body produces something called ketones, and ketones are basically alcohol that's being produced by your body. The machines that test your breath sample cannot tell the difference between these molecules and alcohol you drank. You can also have asthma where you're using an inhaler and, again, the machine can't tell an albuterol inhaler from alcohol. High protein diets or anorexics since you're burning more muscle than fat, and that can also produce ketones, which also mimic alcohol.
Are there certain health conditions that could affect the field sobriety test?
Answer: Yes. There are health conditions that can affect field sobriety tests. Most field sobriety tests, at least the dexterity part-the walk-and-turn, the one-leg stand-are obviously very balance-driven tests; balance and coordination. So, if you have some inner ear problem or just generally have poor coordination, then that would obviously affect your ability to properly do these dexterity tests. Obviously any injuries you have, because these are walking and standing tests, could also affect your ability to take the test. On the horizontal gaze nystagmus-that's kind of where they will run the stimulus in front of your eyes-there is a percentage of the population with natural nystagmus. There's also any central nervous depressant would cause it. So even if you haven't drank, but if you take anti-anxiety medication or Adderall or any other depressant, central nervous depressant, then that would also fail you on this field sobriety evaluation.
Are there ways to contest a blood test?
Answer: Yes. There are ways to contest a blood test. Blood tests are generally more accurate than a breath test. But the prosecutors and the courts have got to lay what's called a proper foundation. They have to bring a lot of people into court, they have to bring a lot of paperwork into court. That's one way to contest it, on foundation. The other way to contest it would be chain of custody-improper handling of the sample. There's also how the test was drawn. The protocol used by the various hospitals vary. If they use an alcohol-based swab when they swab your arm before they draw the blood, that would make your test erroneous and make it a lot higher. Again, the test is one gram per 210 liters. So it's easy to contest the blood test.
Are there ways to contest the sobriety tests?
Answer: Field sobriety tests are easily contested. There are many, many factors that go into successfully completing the field sobriety tests. The tests are given in different conditions by different officers on different surfaces at different parts of the night to different people who have various coordination levels. The lawyers in our firm are NHTSA certified-that's the National Highway Traffic Safety Administration-so we've got the highest certification in field sobriety testing that is available. So we're very good at watching videos and picking out not just the things that our clients do well on field sobriety tests, we also pick out things that the police officer does wrong in either his scoring or his instructions.
Can you explain blood alcohol concentration or blood alcohol content?
Answer: Blood alcohol concentration is the technical term for the state trying to produce a chemical test or a breath test or a blood test. They are measuring one gram per 210 liters of blood. So what they're trying to measure is-picture a two liter Coke bottle picture 105 two liter Coke bottles and about a cube of sugar dissolved into that 105 liters of soda. That's about the amount they're trying to test to determine how much alcohol is in your blood stream.
Can you explain mouth alcohol or residual alcohol?
Answer: Mouth alcohol is kind of a catch-all for several different conditions. Basically, mouth alcohol is something the machine would pick up that was not deep lung air. The machine is trying to measure your deep lung air where the capillaries are exchanging carbon dioxide and oxygen. If the mouth alcohol that's not coming from that exchange of carbon dioxide and oxygen, then the machine is going to register much higher than it would otherwise. Mouth alcohol can be in dentures, for instance, you can trap alcohol that way. You can have esophageal gas like acid reflux, something like that. If you belch or regurgitate into your esophagus, that can be mouth alcohol. So it's not necessarily alcohol that's just sitting in your mouth, it can also be coming from your stomach.
Can you explain radio frequency interference with the breath test machine?
Answer: Radio frequency interference will cause the machine to mis-measure your test. It's like any other machine that gets the wrong frequency, it tends to act up. They try to calibrate this by a radio that's actually sent to the police departments by the manufacturers. They'll put this radio on top of the machine to see if they can make this machine malfunction. When it does malfunction, then they'll know the radio frequency interference detector on the machine is working. Of course, that doesn't explain how 200 police officers are walking around each with a radio on their shoulder, but that's what radio frequency interference is.
If a person blows over the legal limit, does it mean that his or her DUI case is hopeless?
Answer: No. Blowing over the legal limit does not mean that your case is hopeless. We would file motions in your case, and the motions would seek to exclude that breath test. There's many, many motions that we file. There's also problems with the machine itself: it can't be biased toward certain people, it may not be calibrated properly. There's many ways to get around a breath test, it depends on the case, it depends on the jurisdiction, it depends on many factors that we investigate to try and find the best method of getting around the breath test.
What is the 20-minute observation period for the breath test?
Answer: The 20-minute observation period is a time where the officer is trying to make sure that you would not have any mouth alcohol that would contaminate your sample. The prosecutors or the state of Georgia will testify that there's redundancies built into the breath test. The first redundancy for an accurate test is that they wait 20 minutes before the test to make sure that you don't belch, throw up or in any other way get alcohol into your mouth that would contaminate your sample. There's also something on the machine called a float detector that's a redundancy and the machine calibrates. So, mouth alcohol is simply the reason they're waiting 20 minutes to observe you.
For more information directly from an Athens DUI defense lawyer, call (706) 705-5122.