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Several years ago, in response to a rise in DUI cases involving Drugs as opposed to Alcohol, the National Highway Traffic Safety Association and the International Association of Chiefs of Police assisted in developing the Drug Classification Program (DCP) in an effort to assist officers in making correct and proper arrest decisions in DUI Drug cases.  Drug Recognition Experts (DREs) are the products of the DCP.  Interestingly, DREs conduct their full investigation after a person is actually arrested for DUI Drugs often times by Law Enforcement Officers who have possibly completed the NHTSA Field Sobriety Training and/or ARIDE (Advanced Roadside Impaired Driving Enforcement).

During the pre-arrest and post-arrest DUI Drug Investigation, DREs and/or initial LEOs may utilize the Horizontal Gaze Nystagmus, Walk & Turn, and One Leg Stand Field Sobriety Evaluations, along with Romberg, Modified Romberg, Lack of Convergence, and checking for reddening of the Conjunctivae and raised taste buds.  Regarding some of these evaluations, recent Georgia caselaw has determined that some of the evaluations in DUI Drug cases have not met the Harper standard and, thus, are not admissible.  Furthermore, the Instructors within the DRE program explain to their students that raised taste buds are not indicative of drug use but rather are indicative of ingesting warm or hot substances.  

If you are arrested for a DUI based upon Drugs (Prescription or Illegal), certain evaluations may be conducted upon you by a DRE or a non-DRE officer.  Even if an “expert” such as a DRE is involved in your case, you should not throw your hands in the air or wave some white flag of surrender just because the State tells you and the Court that an “expert” determined that you were under the influence of a drug.  That “expert” is offering a subjective opinion based upon his interpretation of several factors that can be caused by many things other than drugs.

Contact an experienced and knowledgeable DUI Attorney such as Joey Cowart to assist you in dealing with cases involving DREs.

When the State obtains the Blood, Breath, or Urine of a person who has been arrested for DUI, it does so upon a State-approved machine.  Regarding Breath samples, after years of relying upon the Intoxylizer 5000 and enduring challenges to the reliability and sufficiency of that machine, as of 31 December 2016, all Breath samples in DUI cases must be obtained on an Intoxylizer 9000.  These Breath machines are located in law enforcement agencies throughout the State of Georgia. In Bulloch County, Intoxylizer 9000 machines are located at the Bulloch County Sheriff’s Department, the Georgia Southern University Police Department, and the Statesboro Police Department.  

These Breath machines are supposed to be regularly inspected and certified by the Area Implied Consent Supervisor – a Trooper whose job it is to tell eveyone that the State machine is in good working order.  In addition to the regular, quarterly inspection, certain procedures are supposed to be followed every time that the machine is used.  These are but two (2) of the requirements that must be met by the State in order to ensure that the machine is working properly.  It is important to remember that these are machines that have numerous parts and pieces, and, like all machines, they can be subject to error – human or machine error.  Indeed, something as simple and as prevalent as Police Radios can cause the machine to be in error.

Regarding Blood and/or Urine Tests, when the State obtains Blood or Urine in a DUI case, the substance will be sent to one of the State Crime Labs where the substance will be tested on a Gas Chromatograph and/or a Mass Spectrometer.  Similar to the Intoxylizer 9000, while these devices have fancy sounding names, they too are simply machines that are subject to operator/human and/or device error.  Furthermore, when obtaining Blood, the law allows only certain types of professionals to draw the Blood from the motorist.  

In order to assist you in analyzing Test Results and the machines that provide those Results, contact an experienced and knowledgeable DUI Attorney such as Joey Cowart to assist you.

As soon as is reasonably practicable after a person is arrested for DUI in Georgia, the Law Enforcement Officer (LEO) should read the Georgia Implied Consent Notice in which he requests a sample of the motorist’s Blood, Breath, or Urine.  The motorist can agree to the request, or he can refuse to provide a sample.  If the motorist agrees to the LEO’s request, then the motorist can request his own independent test of his own choosing and at his own expense, and the LEO must reasonably accommodate the request.  If the motorist refuses to provide the sample at the LEO’s request, then he is not entitled to an independent test.  

In order for any results and/or a Refusal to be admissible, the LEO must comply with certain requirements regarding the manner in which he reads the Implied Consent Notice.  However, in addition to the Implied Consent requirements, in order for a test result to be admissible, Courts have now determined that a motorist’s consent must also be actual and voluntary.  As such, additional analysis and consideration must be given to the facts and circumstances of a case to determine whether a Blood, Breath and/or Urine Test is admissible in Court.  

In order to determine whether any alleged Refusal or Test Result is admissible in Court, contact an experienced and knowledgeable DUI Attorney such as Joey Cowart to assist you.

Once a person is stopped by a Law Enforcement Officer (hereinafter referred to as “LEO”), in order to detain the person for further DUI investigation, the LEO must notice something to allow the LEO to further detain the person beyond the time required to process the basis of the original Traffic Stop.  From the odor of alcoholic beverages to red/watery eyes to slurred speech, the LEO may notice some physical manifestations that justify further investigation.  If any such physical manifestations are notice, then the LEO will probably attempt some type of Field Sobriety Evaluations or Field Sobriety Tests (hereinafter referred to as “FSEs”) as established by NHTSA (National Highway Traffic Safety Administration).  

The NHTSA-approved FSEs are the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (W&T), and the One Leg Stand (OLS).  An experienced and knowledgeable DUI Attorney will know that the HGN is a Scientific Test that is subject to the Harper standard in Georgia Courts.  In addition, when performing these FSEs, the Officer must substantially comply with his training regarding the explanation, demonstration and evaluation of the FSEs.  

Lastly, while attempting to form Probable Cause to believe that the motorist is DUI, the LEO may try to obtain a sample of the motorist’s breath on a Preliminary Breath Testing (PBT) Device.  While the PBT is designed to give the LEO a numerical reading of the motorist’s BrAC (Breath Alcohol Concentration), the only evidentiary value of the PBT is to confirm the LEO’s suspicion of alcohol consumption, for the LEO can only testify in Court that the result was either positive or negative for alcohol.  However, LEO’s can see a numerical reading of the BrAC, and the LEO often-times uses this reading to support his belief that the motorist is DUI.  In order for the LEO to be able to testify about any positive reading on the PBT, a proper foundation must be laid by the State regarding the particular PBT.

In addition to foundational issues and compliance with training, if a person is deemed by a Court to be “in custody” at the time that the PBT and/or FSEs are administered, then the LEO must administer the Miranda warning prior to administration in order for the results to be admissible.  Unfortunately, Georgia Courts have held that Traffic Stops are generally not custodial for Miranda purposes;  however, an experienced and knowledgeable DUI Attorney will know what to look for in order to determine if your particular situation potentially rises to a custodial situation.

Furthermore, given that FSEs and the PBT are seen as “consensual,” a LEO cannot require you to perform and submit to either or both.  However, the LEO is not required to explain to you that the FSEs or the PBT are consensual.  Your particular situation should be evaluated to determine if the particular facts or circumstances made it appear that the FSEs or PBT were not consensual, and, thus, inadmissible.

As you can tell, if you are the subject of a valid initial encounter with a LEO, issues abound as to whether the LEO actually had Probable Cause to arrest you for DUI.  Furthermore, the bases for forming the Probable Cause may be inadmissible for a myriad of reasons.  In order to assist you in determining whether Probable Cause existed for your arrest, contact an experienced and knowledgeable DUI Attorney such as Joey Cowart to assist you.

While the Georgia and U.S. Constitutions guarantee that you will be free from government searches and seizures unless there is probable cause and a Warrant, based upon societal demands and nuances, Courts have carved out limited exceptions that will allow the government to interfere with our freedom and liberty in the absence of probable cause and warrants. For example, in the 1960s, the U.S. Supreme Court established the Terry Doctrine (based upon Terry v. Ohio) which explained that a Law Enforcement Officer can make a brief stop of someone even without a Warrant or even Probable Cause if the Officer has reasonable suspicion of criminal activity afoot based upon articulable facts. Furthermore, the Courts have long held that if a criminal (or traffic) offense occurs within the presence of an Officer, then the Officer can stop/arrest the person without the necessity of a Warrant. Of course, these exceptions to the Warrant requirement are necessary in the mobile society in which we live.

Therefore, while it does not take much to form reasonable suspicion, the first step in defending a DUI or any Traffic Offense is to evaluate the Traffic Stop to determine whether the Officer actually can articulate facts to support a reasonable suspicion that some type of criminal activity was afoot. It is important to understand that the facts may very well not support a traffic or criminal offense in and of themselves, but the facts must be sufficient to support more than a simple hunch that the Officer has that the operator of a vehicle is committing some offense such as DUI. For example, while it is not against the law for someone to weave within one’s own lane, Georgia Courts have hinted that such an action may support a traffic stop. (However, the Courts have not held that such a stop is always justified – it is a case by case anaylsis).

In order to further illustrate and demonstrate this point, let me give you an example. Several years ago, I received a telephone call from a relative. He had been pulled over by a Trooper for travelling 50 mph in a 55 mph zone and “driving a little close to the white [fog] line,” neither of which are against the law. The Trooper immediately began asking this elderly man if he was taking any prescription medications. Thankfully, the Trooper decided not to arrest this elderly man for DUI Prescription Drug. Some people may say, “well, if he wasn’t arrested for DUI, then he must not have been DUI, and what’s the big deal?” The “Big Deal” is twofold: 1) the decision to arrest or not arrest is based upon an EXTREMELY subjective opinion; and 2) this elderly man should not have been stopped in the first place, for neither travelling 5 mph slower than the posted speed limit nor driving “close to the white line” is a violation of any traffic law and neither provides any type of reasonable suspicion of any type of criminal activity afoot. If this man had been DUI, there would have been a good chance that the case would have been thrown out of Court based upon an improper traffic stop.

Therefore, as you can see, the basis for a Traffic Stop may be invalid, and, if it is, then regardless of whether the person is DUI, the case may be dismissed due to the invalidity of the Stop. In order to assist you in determining whether you were stopped for a valid and proper reason, contact an experienced and knowledgeable DUI Attorney such as Joey Cowart to assist you.

While on summer vacation this year, my sister-in-law asked me “so do you believe that Tiger Woods really did not have any alcohol in his system?  If he did not, then how did he get arrested for DUI?” A few minutes later after I had explained how someone can be charged with a DUI in so many different ways, her opinion of individuals charged with DUI who hire a DUI attorney had changed drastically.  The following is a summary of that brief explanation.

In Georgia, like in most States, someone can be charged with DUI based upon alcohol, drugs, vapor/glue, and/or a combination of any of the above.  The age of the person and/or the type of vehicle being driven may also have an impact on the type of DUI charge that can be brought.

We will first deal with the DUI charge with which most people are familiar – DUI based upon alcohol.  Specifically, in Georgia a person cannot drive or operate a moving vehicle  when alcohol has made someone “less safe” to operate that vehicle.  “Less Safe DUIs” are based upon physical manifestations that lead a Law Enforcement Officer to believe that you are Under the Influence of Alcohol to the extent that is “Less Safe” for you to operate that vehicle.  In addition, if the State obtains a sample of Blood, Breath, Urine or other Bodily Substance, and if that sample indicates that your Alcohol Concentration is higher than what the State has established as the “Per Se Limit,” then you can be charged with a “Per Se DUI” regardless of whether you are “Less Safe” or not.  (If you are 21 or older, then your “Per Se Limit” is .08% if you are driving a non-commercial vehicle;  if you are under 21, then your “Per Se Limit” is .02%;  if you are operating a Commercial Vehicle, then your “Per Se Limit” is .04%).

Now that we have addressed the different “types” of Alcohol DUI Offenses in Georgia, let’s discuss another area of DUI law that has been growing in recent years.  Just like you cannot consume too much alcohol to make you “Less Safe” to operate a moving vehicle, you likewise cannot consume a drug or drugs – illegal or legally prescribed – to the extent that it will make you “Less Safe” to operate a moving vehicle.  Furthermore, if the suspected drug is an illegal drug (except for Marijuana), then you may be charged with a “Per Se Drug DUI;”  in cases involving illegal, non-prescribed drugs, you can be charged and convicted of DUI regardless of whether you are “Less Safe” or not.  

In addition to Alcohol and Drug DUIs, you can be charged with driving under the intentional influence of glue, aerosol, or other toxic vapors to the extent that it is “Less Safe” for you to drive.  Unlike Scarlett O’Hara in Gone with the Wind, these “vapors” are associated with what has become known as “huffing.”  Specifically, a person may intentionally inhale Dust-It or similar aerosols or paint vapors or glue in an effort to become “high.”  As you can see from the use of the italics, this is the only type of DUI where the State must actually prove specific intent.  

Therefore, as a result of the voluntary ingestion of alcohol, drugs (prescription or illegal), glue/vapors/aerosol, and/or a combination of any of these substances, a person can be charged with DUI in Georgia.  Given the complexities involved, if you are arrested for DUI, consider consulting with an experienced and knowledgeable DUI attorney to assist you in defending your rights and protecting your future.

Like most people, you have probably heard someone say “if he was charged with DUI, he must have been DUI and just needs to plead guilty in Court.”  Unfortunately, if more people understood the requirements and intracies of DUI charges, you would probably instead hear “if he was arrested for DUI, that does not necessarily mean that he was actually DUI and he needs to make sure that the State has sufficient evidence and has acted properly.”  The former saying is supported by events in history such as the Spanish Inquisition or the Salem Witch Trials, while the latter is supported by our forefathers’ belief that we are innocent until proven guilty, a belief that should be at the absolute core of our thoughts and actions.  While we are all taught this fundamental aspect of our Legal System as early as in Middle School civics classes, as we all mature and suffer through some of life’s difficulties, it becomes easier to become jaded and simply believe that if someone is arrested for an offense, then (s)he must be guilty.  Put simply, it is easier to assume the worst than it is to take the time and energy to actually consider the particular circumstances in each situation.

In addition, in order to ensure that everyone is treated fairly by the government, certain constitutional and statutory processes and procedures must be followed by the State.  Occasionally, the State deviates from those processes and procedures, and in such situations, a person charged with a criminal offense may have certain defenses or protections from prosecution.  Specifically regarding DUI charges, an experienced DUI Attorney will understand that each DUI offense can have unique circumstances or facts that may provide substantive and/or procedural defenses to the charge.

If you are charged with DUI – or any other criminal offense – a qualified and knowledgeable attorney can assist you by objectively reviewing the legal requirements that the State must prove to successfully prosecute you along with the facts and circumstance of your particular situation so that a determination can be made as to how best to proceed in your particular situation.  An experienced criminal defense attorney can also review the manner in which the State pursued or processed the investigation and case against you in order to determine if your constitutional and/or statutory rights have been violated during the process.

Do not assume that simply by being arrested that the State has enough evidence to convict you or that the Government has acted properly or appropriately in processing charges against you.  Consult with an experienced and knowledgeable criminal defense attorney to ensure that your rights and future are protected.