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Drug courts will allow persons with prior convictions to be admitted, but require a plea to the drugs that will be withdrawn upon completion of the program but if the program is not completed then the Judge may enter the plea of guilty and consider the appropriate sentence.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.
Our office would like to take a moment and acknowledge current Dekalb County Sheriff Jeff Mann, who is running as the incumbent on May 20th. Sheriff Mann is a genuinely kind man who has served our community well for years.
Last night Andrew and many others from the Dekalb County legal community hosted an event for Sheriff Mann at Manuel’s Tavern.
Please get out and vote for Sheriff Mann on May 20th!
If you have been arrested for a DUI and complied with the officer’s request for a test of your breath what do you need to know?
To Blow or Not to Blow into the State’s Intoxylizer (Breath Machine)?
First, there is no correct answer to whether or not to submit to an officer’s request for you to provide a breath sample immediately after being arrested for a DUI.
The simple rule of thumb is if you do not blow then you are more likely to have a defendable DUI case, however if you are more concerned with being able to legally drive in Georgia then you should submit to the breath test requested by the officer.
What are the Legal Blood Alcohol Limits in Georgia?
If you decided to blow, for persons arrested over the age of 21 the legal limit .08 blood alcohol content and for persons arrested under the age of 21 the legal limit is .02 blood alcohol content.
Can I be Prosecuted if I Blew Under the Legal Limit?
So it is clear, the State can and regularly does prosecute Defendants for Driving Under the Influence who blow under the legal limit of .08. Generally this is referred to as a DUI less safe charge. Essentially the State of Georgia must establish in court you driving ability was made less safe because of your consumption of alcohol. Persons arrested for a Driving Under the Influence who blow under the legal limit should contact an attorney as soon as possible. As a general rule their cases, as you could guess, are very defendable.
What Should I Do If I Blew Over the Legal Limit?
The first line of defense in any DUI case is looking for a violation of your rights.
Generally these are found in three places: either the cop’s initial encounter with you was not reasonable and illegal, the officers arrest decision was not legal and unsupported by probable cause, and/or your right to have implied consent read, similar to a miranda warning for DUI drivers, was not timely or correctly read to you immediately after you were arrested.
Could There be a Problem With my Breath Test?
When a Defendant, blows over the legal limit there are two main areas of attack: the machine’s operator did not follow his training or the machine itself was not functioning correctly. To learn about the state standards clink this link to the Georgia Bureau of Investigation Implied Consent.
Generally speaking there are three basic safeguards for the intoxilyzer test used to prevent inflated reading.
First, and generally the most commonly not done, the arresting officer per the Georgia Bureau of Investigation is required to complete a twenty minute observation period of someone about to use the intoxilyzer. This is to ensure there has not been contamination from mouth alcohol. Mouth alcohol can loosely be referred to as regurgitated alcohol, a burp increasing alcohol in the mouth, or alcohol from a source other than your lungs. The observation period helps to ensure that the air being tested is alveolar air, air from your deep lungs, and not alcohol that has recently been vomited or burped into your mouth.
Second, the State is required to take two breath samples from you and these samples cannot vary by more than .02. An example of this if your first test is .08 and your second test is a .101. If this is present in your case then the variance in the tests are to great and it is not admissible against you in court.
Third, the machine’s alcohol detector must be operating correctly. The alcohol detector’s name in breath testing literature is a slope detector. Defendant’s have access to the records of the machine they were tested on. If the machine was not functioning as required by the Georgia Bureau of Investigation’s published requirements your jury should be made aware.
Any one of these problems can go to the weight a jury is willing to put on the breath test in your case.
A Special Note of Caution for Under 21 DUI Defendants.
For under 21 one year old drivers who blew near the .02 blood alcohol level there is even more reason to look into the working of the intoxilyzer. The intoxilyzer, the breath machine, is calibrated for a .08 blood alcohol content reading, the lower the test, the higher the margin of error with the test.
Essentially, on tests slightly above the under 21 blood alcohol limit of .02, for example a test showing a blood alcohol content of .03, the intoxilyzer is not as reliable from a scientific standpoint as it is when testing an a driver who blood alcohol content is near or above the adult blood alcohol content limit of .08.
If you are charged with a DUI, contact us today for help 404-373-7735.
Should I get an accident lawyer for my not at fault collision? The at fault driver was charged with a dui.
Injured by DUI Wreck Asks: “I was recently in a 3 car accident. My vehicle rolled 2-3 times, and rolled over another car in the process. The person that hit me was arrested for failure to yield and dui. I went to the hospital as well as the person in the car I rolled over. My injuries were not life threatening thankfully. Will this be something my insurance will be able to handle for me successfully or should I get a lawyer.I am really hoping for an expedient process as I have no vehicle to drive. I have an outstanding personal loan that I purchased my vehicle with approximately 6 months ago, along with associated expenses and accessories. Blue book will not pay it off.”
Andrew Answers: “Yes you need a lawyer. When a drunk driver causes a wreck it allows the person struck, you, to pursue damages for your medical bills, pain, property damage, and punitive damages. Because the other driver was drunk you should be seeking a policy limit resolution, as in more money than you might have expected, and generally the insurance company of the drunk driver will want to settle because juries are more willing to side with you here.”
How can a warrant be issued for a person that was never ticketed, never questioned or seen by the police.
Friends Asks: “My friend wreck a car left the scene of an accident but was not caught by the police the passenger said he was driving. the police mailed the tickets to the passenger address although the driver don’t live there.”=
Andrew Answers: “The police only need to establish to a judge that there is probable cause someone was driving this car. There is no magic formula, only that based on what the police know a reasonable person would believe your friend was driving the car that left the scene.”
My mother was arrested 11 years ago for a DUI and possision in Gwinnett County. She got probation but never finished.
Potential Client Asks “When I look up the court case this is the last thing that is posted. 07/24/2008 – order amending sentence – defendants case expired with outstanding balance due – judge
She has changed her life and would like to move on but she is terrified about the possibility of going to jail. She can’t do normal things like cash a check or get on an airplane because she is afraid to get an Georgia ID. Would she still have to go to jail? or can she just pay her fines since it’s expired. I just need some input so that I can know what to do to help her.
Andrew Answers: “If the probation case is expired than the case is over. If instead the probation officer tolled, a legal word for stopped, the time your mother was completing on probation then you should hire a criminal attorney. They can address your mother situation with the probation department, judge, and Gwinnett Solicitor’s Office. A potential leal result could be simply closing your mother’s case and letting her live her life, completing what is owed on probation, to giving a jail sentence.”
Friend asks “Best friend recently got 1st DUI in Georgia. Resides in Georgia. No priors of any kind. Refused roadside breathalyzer. Took all roadside field sobriety tests. Was arrested. BAC measured at the jail. BAC registered .21. Athens.
She has already hired an atty to submit appeal letter to DDS, and it will be submitted within the 10 days. I’m a paralegal. I know that DDS automatically suspends your license, based on roadside breathalyzer refusal and .21 BAC. What are her odds of prevailing at DDS admin hearing and obtaining a permit to drive? I read that Senate Bill 236 (effective Jan 2013) will even help 2nd in 5 convictions, using Interlock Ignition device and alcohol treatment as leverage to obtain a permit for work, court, comm. serv., etc. Odds at DDS AND in Superior Court case?”
Answer: “DDS will allow your friend to reinstate on a first lifetime after completing DUI School, Georgia’s Risk Reduction course. Literally if your friend’s license is suspended at an Administrative License Hearing she can be reinstated the next day.
When she goes to court on the DUI, if convicted she, would be facing a separate but related suspension of her license. Based on the facts you have provided she would be eligible for a limited permit from the Department of Driver’s Services after leaving court. She would be able to get her license back 120 days later.”
How do I get a copy of my preliminary hearing “court recording” ? Can I have these charges lessened , expunged or sealed?: I was accused, arrested and convicted of Simple Battery, “Habitual offender” In the Court room at the Bond hearing my Ex-Husband told the judge as well as my witnesses that I didn’t hit him. They were then told that since I was arrested as a habitual offender for simple battery that it was to late to withdraw the charge.
Also charged with “Possession of a controlled substance with the intent to distribute” Name and quantity of controlled substance is not listed on the record I have obtained from my local Police Department.”
Andrew’s answer: “Convictions do not take place at the preliminary hearing level. The process, simply described, is you are arrested, a judge may consider whether there is probable cause supporting the warrant at a preliminary hearing, if so, the case will move to the prosecutor’s office, who then will formally file an accusation or pursue an indictment with your county’s grand jury, which is your notice the charges will not be dropped and the State is seeking a condition, after this point you may be convicted at trial or enter a plea of guilty or no contest to the charges in court.”
Defendant asks “I was pulled over for a tag light being out. the officer smell alcohol on my breath and ask me to step out of the vehicle. i complied to the field test and also the breath test. the officer told i wasn’t doing anything outside the norm,he just pulled me over because of my tag light. i blew a .138. this is my first offense and would like it to be dropped off my record. i also would like help in filling out the appeal to keep my license to travel back and forth from work.”
Andrew’s Answer: “A DUI can be dismissed or reduced to a charge less serious than DUI when your attorney investigates and finds a weakness in the Officer’s DUI case. To increase the chance of a good outcome for your case, hire an experienced DUI attorney soon. They will immediately challenge your license suspension, what you refer to as filling out an appeal, and should investigate the strengths and weaknesses of your case between today and your first day in court. When you enter court you have a plan and already know what path you are going to pursue in fighting your case and getting an outcome you want.”
The state of Georgia offers a deal for people who have committed their first offense. As one would expect, it is called the First Offender’s Act. However, like all deals, it comes at a price. There are pros and cons to the first offender’s act.
Many people who live outside of the criminal life are shocked and chilled to the bone when they find themselves in a situation where they need to deal with police, lawyers, and judges. Most people have one thing in common, they just want it to go away, as fast as it possibly can, so they can move on with their lives.
Here are the positives of First Offender’s. You have been charged with a felony or misdemeanor crime. Believe it or not, that felony arrest and conviction can be sealed. The charge will still be there while completing first offender, but once completed the hope is your move forward without future arrests. If you are ever asked if you have been convicted of a crime, you can honestly answer “no”. Most employers will be unable to access your criminal arrest record. However, even though employers cannot access it, keep in mind that law enforcement can access this. If you are arrested again, the police and courts will still know about your first offender sentence.
In order to receive the First Offender’s, you must be sentenced by the court under the First Offender’s act. First Offender’s can be used for either a felony or a misdemeanor. Therefore, if you use it on misdemeanors, and end up later being charged with a felony for the first time, you would not be able to use the first offender act for a second time on your subsequent felony case.
There are responsibilities that come with taking the First Offender’s plea: you must uphold your end of the bargain with the judge. That means, first and foremost, staying out of anymore legal trouble, complete any special conditions of your probation ordered by the judge, pay all fines to the courts, and attend meetings with the probation officer. If you fail to uphold the conditions of your plea you can be re-sentenced, lose the benefit of your First Offender’s status, and be sentenced to the maximum penalty your originally faced, meaning you could now be going to prison.
The greatest fear of everyday people when arrested for a crime is that they are going to be mixed with the worst of career felons. There are uncomfortable truths about the First Offender’s Act. It is not a free pass out of jail. You can be sentenced to jail time by the judge. After you do your time your first offender status allows you to move on with your life with the hope your criminal history will not follow you.