DUI: Child Endangerment

Driving While Intoxicated is a crime that is taken very serious by criminal prosecutors, but if there was a child in the car, the charges become a whole new level of serious.  If you make the decision to do this, and are arrested for DUI, you can and likely will be  prosecuted for child endangerment.  If one thinks that the courts and society at large have an incredibly negative opinion of DUI drivers, to be prosecuted for a DUI with children in the car is that much worse.

 

Child endangerment is a separate crime that means to put the life of someone below the age of fourteen in danger, through either violent or negligent behavior. It will not matter if you just had an extra glass of beer, and had no malicious intentions. Your negligence will be treated as violence.  Child endangerment is a separate charge.  It is not part of the DUI, but in addition to the DUI.

 

Organizations such as Mothers Against Drunk Driving take these things very seriously and go through considerable hoops to protect children from drunk drivers.  In the year 2012, twenty percent of children killed in car accidents were killed by DUI, as recorded by the organization, MADD.  According to MADD, 124 of the 239 children under fourteen who died in alcohol-impaired driving crashes during 2012, were passengers in vehicles with drivers had a BAC level of .08 or higher.

 

The most recent Georgia Statute on Child Endangerment is  GA ST § 16-12-1(d); GA ST § 40-6-391(l). It reads as follows: “It is a separate offense to transport a child under the age of 14 years while driving under the influence. The sanctions for this offense are as follows: first or second offense (misdemeanor) – imprisonment for not more than 12 months and/or a fine of not more than $1,000; third or subsequent offense (felony) – imprisonment for not less than l year or more than 3 years and/or a fine of not less than $1,000 or more than $5,000. This offense shall not be merged with the offense of driving under the influence of alcohol/drugs, for purposes of prosecution and sentencing.”

 

In some states, such as New York, you will be charged automatically with a felony if you drive impaired with a child in the car.  In Georgia, you will be not be charged so harshly.  Under Georgia law, the first two child endangerment charges will count as misdemeanors, which you could land you as much as a year in jail. However, the third time you are charged with child endangerment, you will be charged with a felony. This can carry prison time of up to three years.

 

If you or a loved one has been charged with this crime, whether it happened accidentally, or unfairly, you need to contact legal representation immediately.

Sheriff Jeff Mann Receives Popular Vote in Dekalb County Runoff Scheduled for July 22

The Atlanta Journal-Constitution Reported:

By April Hunt

“DeKalb County voters will decide in July whether the unelected incumbent sheriff or the county’s former CEO will be their new sheriff.

Incumbent Jeff Mann, appointed in March, took an early lead over former CEO Vernon Jones but never managed to capture the 50 percent plus-one needed to avoid a runoff in the eight-candidate race, according to preliminary results releasted late Tuesday. With all but two of the county’s 189 precincts reporting, it appeared impossible for third-place candidate, Atlanta Police Sgt. Melvin Mitchell, to make it to the July 22 election.

“This was always a race between Jones and an incumbent who was not elected,” said Steve Anthony, the former head of the Democratic Party of Georgia who now teaches politics at Georgia State University. “The real race will be the runoff.”

Jones was the most well-known candidate in the crowded sheriff field and also reported the most flush campaign account. His campaign disclosures filed with the DeKalb Elections Office showed he collected $96,620, including $25,000 he lent to his campaign. Mann reported the second-largest collections, of $72,358.

DeKalb’s cloud of scandal over several other elected offices did not appear to drive residents to the polls. DeKalb election chief Maxine Daniels said turnout was just under 20 percent of the county’s 390,000 active voters.

Precincts in south DeKalb, Jones’ traditional stronghold, reported being busy when polls first opened and appeared to support his return to office. Precincts in central and north DeKalb appeared to be more steady throughout the day with northern precincts voting heavily in favor of Mann.”

 

Andrew R. Lynch, P.C. Receives Peer Review Rating for Attorney Andrew Lynch from LexisNexis® Martindale-Hubbell®

Andrew R. Lynch, P.C. Receives Peer Review Rating for Attorney Andrew Lynch from LexisNexis® Martindale-Hubbell®

LexisNexis Martindale-Hubbell has recognized Attorney Andrew R. Lynch with a Martindale-Hubbell Peer Review Rating™.  Andrew R. Lynch was given an “AV” rating from his peers, which means that he was deemed to have very high professional ethics and preeminent legal ability.  Only lawyers with the highest ethical standards and professional ability receive a Martindale-Hubbell Peer Review Rating. The Martindale-Hubbell Peer Review Ratings evaluates lawyers in the United States and Canada based on the anonymous opinions of members of the Bar and the Judiciary, including both those who are rated and those who are not. The first review to establish a lawyer’s rating usually occurs three years after his/her first admission to the Bar. LexisNexis Martindale-Hubbell conducts secure online Martindale-Hubbell Peer Review Ratings surveys of lawyers across multiple jurisdictions and geographic locations, in similar areas of practice as the lawyer being rated. Reviewers are instructed to assess their colleagues’ general ethical standards and legal ability in a specific area of practice. The confidentiality, objectivity and complete independence of the ratings process are what have made the program a unique and credible evaluation tool for members of the legal profession.  The legal community values the accuracy of lawyer peer review ratings because they are determined by their peers – the people who are best suited to assess the legal ability and professional ethics of their colleagues. “Martindale-Hubbell Peer Review Ratings were created in 1887 as an objective tool that would attest to a lawyer ability and professional ethics, based on the confidential opinions of other lawyers and judges who have worked with the lawyers they are evaluating,” said Mike Walsh, President and CEO, U.S. Legal Markets at LexisNexis.  “The Martindale-Hubbell Peer Review Ratings have remained the most prestigious and widely respected lawyer rating system in the world for over a hundred years.” In this highly competitive environment for legal services, the Martindale-Hubbell Peer Review Rating is often one of the only means to differentiate lawyers who are otherwise very comparable in their credentials.  This is important on a variety of levels – from the in-house counsel trying to determine which one of his outside law firms should be assigned a new matter to the private practice lawyer seeking to refer a case to another lawyer with the appropriate expertise in a specific area of practice. Indeed, a Martindale-Hubbell Peer Review Rating can be one of the most important criteria that lawyers and clients use to evaluate a lawyer when retaining a lawyer, or simply researching the background of co-counsel or opposing counsel.  When referring matters to colleagues with specific expertise or looking for counsel in another jurisdiction, lawyers want to have confidence in the individual lawyer under consideration.  By reviewing the ratings, they can be guided to a lawyer with very high ethics as well as the appropriate level of professional experience. Andrew R. Lynch is proud to have received this recognition from his fellow attorneys in the State of Georgia.

First Lifetime DUI Arrest

Initial steps to take after receiving your first lifetime DUI charge:

STEP ONE:

Accept the reality. You are now facing criminal charges. Drunk driving maybe the most common criminal charge, but in general, our society hates drunk drivers worse than they hate people who arrested for assaults and thefts. There is an aggressive lobby known as Mothers Against Drunk Driving that have have lobbied to make drunk driving laws stricter and stricter over the last 30 years. If you are charged with this, do not brush it off casually. You need to face the reality head on, and deal with these charges. This is a serious charge that could mess up your life. It produces a chain reaction of disaster in your life, such as a permanent criminal conviction, possible termination of employment, loss of license that could lead to inability to commute to work which could lead to termination of employment. Insurance rates will go up.

STEP TWO:

Keep silent, any admissions or statements will be used against you. Nobody on the prosecuting end, not the district attorneys, not the police, not the holding cell guards, nor the people who book you, nor the judge who sets your bail, are your friend or advocate.  They are not on your side.  The only person “on your side” is your attorney.

 

The police don’t care if you’ve “only had a beer with dinner”.  Tell them nothing.  If they are going to arrest you, they are going to arrest you.  You do not want to help them
arrest you. Loose lips sink ships.  It’s not what you’ve done, but what they can prove you’ve done, so keep all evidence that you have and they don’t have to yourself.   The decision to take the breathalyzer is a very personal one, the short answer is if you are more worried about losing your license than being on probation then you should probably consent to the Officer’s request to test your blood alcohol level, if instead you are focused on not being convicted of a DUI you should refuse the state’s breath sample, and for that matter the officer’s request for you to complete any field sobriety tests, they are voluntary.

If you do provide a sample,  always ask for an independent blood test at a medical facility you choose.

STEP THREE:

Speak with an attorney as soon as possible.  The only person who you should speak to is your attorney and nobody else.  If a cop demands you say something, the only thing you need to say is “I would like to speak with my attorney”.  It is typical of cops to assume you are ignorant and to make comments along the lines of “just help us and well help you” (the good cop), and “shut up and admit what you did” (the bad cop).  Many innocent people are in the in the corrections system because they think that the cops who arrested them are the end-all, be-all of authority, and they confess because they believe the good cop will “help them out”, or believe the bad cop saying who says “we’ve already got you”.  The cops want to make themselves the prosecutor, defense attorney, judge, and jury, and end the case early. Only you can make this happen by saying anything other than “I’d like to speak with my attorney”.

 

STEP FOUR:

Hire a productive and successful attorney. There are times in people’s lives, when no matter how frugal you try to be, you will have to spend a significant amount of unexpected money.  A defense lawyer in the situation of facing criminal charges is one of these times when your savings will have to take a hit.  There is no other way.  Either your savings take a hit now in the form of hiring a defense attorney, or they take a hit later when you go to jail for several months and lose your job and miss mortgage payments.  Your attorney should have reviews from other people that he or she has gotten off on charges.  This is how you should select your attorney, not because he promises a low price.

 

STEP FIVE:

Go to court. Every court date.  Judges can be jaded individuals who deal with all kinds of social ills everyday of their life.  One ounce of disrespect to the court can make the gavel come down on you harder.  One of the most disrespectful things you can do is not show up.  The judge doesn’t care what your excuse is for not showing up.  The judge is in no mood to feel sorry for you, because they’ve seen and heard everything before.  If you miss court, it is likely that a warrant will be issued for your arrest, and once you are caught, and back to jail you go.  Now of course, its not always your fault, unexpected circumstances come up.  This is why your attorney will help you reschedule.  The other problem is that courts may be extremely bureaucratic and inefficient depending on where you are.  A notice to come to court may not be sent out, may be sent to the wrong address, etc. without you knowing.  Even if its not your fault, you can still get a warrant.  The attorney will help you stay on top of this.

 

STEP SIX:

Request a hearing with the DMV, also called an administrative license hearing.  This is not mandatory.  This is going the extra mile, but it is still significantly important.  There is a ten day limit to request this hearing, so remember to act fast once you are released from jail.

The DMV has no power to put you in a cage with bars for your DUI, but they can revoke or suspend your driver’s license.  Like the courts, the DMV is an incredibly complicated and bureaucratic entity that can be incredibly difficult to navigate for most people.

Remember, if the DMV suspends or revokes your license, and you drive on it, you can be arrested and put in jail, so they do have that power over you.  In the same way that your chances of beating criminal charges go up if you have a skilled attorney, your chances of getting your license back, or other driving privileges go up.

 

STEP SEVEN:

If you’ve read this,  you need to call our office.  If you or a loved one has been charged with DUI, or is currently facing time in jail, may still be in jail call us.

Andrew Lynch is someone who can help you, call our office now:

(404) – 373 -7735.  

Road Blocks Leading to a DUI or Drug Arrest in Georgia

Checkpoints are something we associate with totalitarian governments or militarily occupied third world countries.  But police checkpoints are not only in Afghanistan and the Gaza Strip, they occur here, in the US.  Here we call them “road blocks”. It is something that we think of as “it can’t happen here”.  The problem is, it can happen here, it does happen here, and it can happen to you.  It is literally the only example of the police not thinking you or anyone in your car are up to anything criminal but still using their government authority to stop you.

If the government stops you at a roadblock they have to get it right or whatever they charge you with can be thrown out of court as inadmissible against you.

There is a saying that goes, “If you are going to break the big rules, obey all the little ones.” Which means if you happen to be a constant drunk driver or a regular drug-user who frequently drives with drugs, you need to do everything to not get pulled over.  You better stop at stop signs, keep your tags updated, drive the speed limit, etc. If you obey all traffic laws, you will not be pulled over.

However sometimes you run into the unfortunate situation where you are stopped by the police, even when you are driving perfectly.  A checkpoint or roadblock is the most likely instance where this would happen. They will ask for your license and registration as if you are being pulled over. Even though you didn’t break any traffic laws, the police still have that chance to smell the booze on your breath or the stash of weed in your back seat.

After going through a road block, you may find yourself being arrested for possession of drugs or DUI.  Your reaction will be anger about the fact that you were arrested after trying to attract the minimal amount of attention to yourself.  Luckily, you may be the one in the right. How the police conducted checkpoint may have been a violation of your constitutional rights.  Your attorney may be able to prove in court that your rights were violated and have your pending DUI or drug case thrown put of court.

 

After the case Baker vs. State, 252 GA, App. 695, there are six requirements for the validity of a checkpoint to hold up in court:

 

The Requirements for a “Legal” Roadblock in Georgia:

First, the checkpoint must be authorized by supervisory personnel to exist in the first place.   Supervisory personal is what it sounds like a boss decided to do this.

Second, it must serve a legitimate primary purpose, such as area where there have been high instances of DUIs.  It cannot be random.  It cannot just be fore general crime suppression.

The third requirement is that all vehicles are stopped, there is not allowed to be any profiling of who is stopped. Everyone is supposed to be treating equally.

Fourth, there must be minimal delay, as in the police need to get each car through as quickly as possible, implying they cannot snoop around cars without probable cause.

Fifth, the area needs to be well identified as a police checkpoint, meaning people know that there will be a checkpoint if they choose to drive on a particular road.

Sixth, the officer screening the vehicles that come through must have adequate training and experience to deal with the situation.

 

Luckily, we still have constitutional rights that protect us from overreach by the police.

 

In the Georgia Supreme Court case Brown vs. State, 293 Ga. 787, it was upheld that all checkpoints must serve a reasonable purpose.   In 2000, the United States Supreme Court case was City of Indianapolis vs. Edmond. 531, US 32 limited the powers that police have  when using checkpoints. The key aspect was the appropriate primary purpose requirement.  In a Georgia case Williams vs State, 293 Ga. 883, the sheriff’s department was ruled to have set up an unconstitutional roadblock.  A roadblock must have a legitimate focus.

 

When a roadblock is understaffed, it often correlates to the roadblock being unconstitutional. One of the requirements is that a supervisor must have planned the roadblock in advance. When only two or three officers are manning the roadblock, it is typically a sign that they did not receive proper orders from supervisors, and are therefore manning a poorly planned roadblock. As a result, this violates two of  the six rules.  One of those is that traffic must go through efficiently, as an understaffed roadblock cannot possibly go through many cars in an efficient matter.  The other is that the officer must be highly experienced in conducting a roadblock. If they are understaffed, he may be trained, but he cannot do an efficient job.

 

Avoiding a roadblock can have pros and cons. If the roadblock is not explicitly identified, then if you make a u-turn and leave the area, if you are pulled over, it may be possible for you to prove in a court of law that you did not know that it was a roadblock, possibly an accident, and you were just avoiding the accident.   It is not illegal to simply not go to a roadblock.  The police have to show you were avoiding their roadblock.  If the roadblock is specifically marked, the officer can claim reasonable suspicion that if you turn away close to the roadblock.

 

If you have been stopped and arrested in a roadblock contact Attorney Andrew R. Lynch today!  404-373-7735.

Atlanta Municipal Court D.U.I. Case Flow Managment Plan

If you are charged with a DUI in Atlanta Municipal Court, it is never a good thing or a pleasant experience. However, knowing the exact steps to take after the DUI will help you be prepared and make the entire process go by smoother.

For some people, things are better when they are organized. And it is best when faced with a huge problem, such as a DUI.  Luckily, Atlanta Municipal is one of the courts that makes it easier. By invoking a case flow management plan, the Atlanta Municipal DUI court ensures that the final disposition of the case unless bound over to a State Court of Georgia, the final outcome, will be decided with 180 days, or six months.

It is important to appear in court, at the date and time listed on the yellow ticket paper given to you by the police after you are bonded out of jail.   If you hire an attorney prior to your first appearance the court will allow that attorney to appear for you.

Atlanta Municipal Court’s DUI case flow structure  is systematic and generally moves forward with the following court dates:

 

Arraignment Court Date (Your First Day in Court):

The arraignment occurs within twenty-four to forty-eight hours of arrest.  If you hire counsel prior to this court date the Judge will generally excuse your presence fro this court date and all future court dates with the exception of the final plea court date.  At arraignment Judge Ward of the Atlanta Municipal Court will inform you of your rights and the charges you are facing in his court.  Generally he will not allow you to enter a plea of guilty and the case will be reset for you to hire counsel.  It is best to have counsel to represent you at this date.

 

Inquiry/Status Court Date:

Two weeks, or fourteen days after the arrest, there is a court date where the judge inquires of the prosecutor and the defense lawyers the status of the case. A month into the case, or thirty days, there is another status inquiry with the judge and the prosecuting and defense attorneys.  These court dates are generally to let the court know if the case is progressing as expected or to allow the attorneys to address with the Judge if there are issues involving the case that need to be raised and addressed to keep the case moving through the court system smoothly.

 

Atlanta Municipal Court’s DUI Court Generally:

Once your lawyer files an entry of appearance, a legal motion notifying the prosecutor you have hired a lawyer and are requesting the evidence in your case, you will not have to appear in court until the day when you must make your final plea in Atlanta Municipal Court: Guilty, or not guilty.  This means that for two months, you and your lawyer can work on the case and decide what is your best way of dealing with the pending DUI.  Your lawyer will make appearances for you, so you do not have to miss work, and he will work everything out himself with the prosecuting attorney without you having to even be there.  If you want to appear in court you may, but once an attorney is hired the Judge only requires you to attend on the final plea court date.

 

Final Plea Calendar:

By two months, the defendant must announce either: a guilty or not guilty plea.  It is there that the defendant and his attorney must decide whether or not they wants to do a jury trial or not. If you want a jury trial on the final plea date you and your lawyer will ask Judge Ward to send your case to the appropriate State Court of Georgia.  Generally this is Fulton County State Court, but for DUI’s around Moreland Avenue in Atlanta it can also be Dekalb County State Court.  If you move your case to State Court, you will have a new Judge and Prosecutor assigned to your case.  Generally there is a lengthy period of time before your DUI will make it into court again.

 

Motions Calendars:

If you elect to waive your right to a jury, the court  will place your case on either a motions calendar or trial calendar.   The motions calendar is specifically to raise violations of your constitutionally or legal rights with the Judge and to ask him to make appropriate ruling to limit the admission of this evidence against you in court.

Bench Trial:

A bench trial calendar is available in Atlanta Municipal Court if you are comfortable having a Judge sit as the trier of fact in your case, as opposed to a jury or if you need your case resolved in a short period of time.

Generally speaking the goal of the the Atlanta Municipal Court is to have your case resolved within 180 days of arrest or to let you take your case to the State Court within in 60 days of arrest.

DUI: Limited Driving Permit for Person’s Charged and Living in Georgia but Licensed to Drive in Another State

Recently a client came in with an out of state license but lived in Atlanta and had not switched her license over prior to being charged with DUI in the city of Decatur Municipal Court.

It was important for this client to get her license changed over to a Georgia license at our Department of Driver’s Service prior to filing a challenge to the Adminstrative License Suspension of her license.  The simple fact is, once challenged Georgia’s Department of Driver’s Services would in effect freeze her license status.  By getting a license from the State prior to going to court she is allowed to request a affidavit of first lifetime conviction from the court and will be eligible  for a work driving permit after the her case is completed.

 

 

DUI Per Se’s Blood Alcohol Content Over 0.08 Within Three Hours Of Driving

Most people charged with Driving Under the Influence when their blood alcohol level is over the State’s legal limit of 0.08 never learn that the law requires the prosecutor to show the breath or blood sample provided was taken within three hours of driving the car.

When is this important, always, but it is most important when a DUI case is atypical, specifically when there has been a delay between police involvement and the test of a person’s breath or blood.

An example, a client of ours was in a wreck at two a.m. in a part of town where the DUI task force does not patrol.  EMS, the fire department, and the Atlanta Police arrived.  It took the Officer nearly the entire three hours, almost to the minute, to get our driver, who wrecked her car, to the Georgia Tech Police Department for testing.  Our client did take the Officer’s test and blew over the limit, but the officer was not able to show evidence that she had driven the car within the three hours prior to the test.

It was unclear how long it took for the police to arrive at the scene.  As you can imagine this was a large factor in the outcome once we brought her case to court.

Simply put the law in not driving over the legal limit, it is driving and within three hours having a  blood alcohol content over the legal limit!

DUI: Rescinding Your Refusal Of The Officer’s Request To Test Your Blood Alcohol Content (BAC)

In your typical DUI case an Officer immediately after arresting you will request a sample of your breath or blood to determine if your blood alcohol content is over the legal limit of 0.08.

Many persons charged will at first refuse the State’s breath but later either on their own decision or at the request of the officer rescind their refusal and “consent” to the Officer’s search of your breath.

In cases where you feel the officer badgered or convinced you unfairly to change your mind and you submitted to the breath or blood test it is important to know the standard the Judge will be reviewing your case by in court.  The judge will evaluate whether the officer’s  procedure utilized by the officer in attempting to persuade you to rescind your refusal was fair and reasonable.

Your trial judge alone will decide if what transpired between you and the officer was fair and reasonable.  If the Officer made claims that were untrue or promises that you could go home if you cooperated you should alert your attorney as soon as possible.

Think of your implied consent rescission this way, was the interaction between you and the Officer completely fair and you truly wanted to take the  test or did the arresting officer play on your emotions to get you to make a decision different than you wanted.

 

Dekalb County District Attorney’s Dialogue on Diversion Programs Overview March 25, 2014

Recently the Dekalb District Attorney’s office invited the local criminal defense bar to a lunch and learn to make sure their clients had all the knowledge about programs designed to give members of our community a second chance when facing a felony criminal indictment.  To learn more about the District Attorney’s office talk click here.

This talk made news in the legal newspaper Daily Report.

In short, the District Attorney’s office reviewed eligibility for the Dekalb County Recorder Court’s Diversion Program, Felony Superior Court Pre-Trial Diversion Programs and ARC programs, Drug Court, and Mental Health Treatment Courts.

Generally speaking, diversion programs are an option for first time nonviolent offenders.  Usually upon completion all felony charges are dismissed.  The program’s requirements very but usually are not as difficult as felony probation and expungement of the arrest is usually included when completed.

Drug courts will allow persons with prior convictions to be admitted, but require a plea to the drugs that will be withdrawn upon completion of the program but if the program is not completed then the Judge may enter the plea of guilty and consider the appropriate sentence.  The point of Drug Court is to focus on treatment and sobriety.

A mental health court is an option for persons with mental health diagnosis who have a stable home life.  Essentially the program is 18 months long and has no fees.  Participants focus on treating and stabilizing their mental health issues.  Upon completion their charges are dismissed.