Georgia DUI Blog

CHICAGO – Motorists convicted of driving drunk will have to install breath-monitoring gadgets in their cars under new laws taking effect in six states this week.

The ignition interlocks prevent engines from starting until drivers blow into the alcohol detectors to prove they’re sober.

Alaska, Colorado, Illinois, Nebraska and Washington state began Jan. 1 requiring the devices on all motorists convicted of first-time drunken driving. South Carolina began Thursday requiring them for repeat offenders.

Mothers Against Drunk Driving has been conducting a nationwide campaign to mandate ignition locks for anyone convicted of drunken driving, claiming doing so would save thousands of lives. But critics say interlocks could lead to measures that restrict alcohol policies too much.

Users must pay for the fist-sized devices, which in Illinois cost around $80 to install on dashboards and $80 a month to rent; there’s also a $30 monthly state fee. They also require periodic retesting while the car is running.

“It’s amazingly inconvenient,” said David Malham, of the Illinois chapter of MADD. “But the flip side of the inconvenience is death.”

Other states with similar laws include New Mexico, Arizona and Louisiana. Most other states give judges the option of forcing convicted drunk drivers to use the devices. In practice though, they are rarely ordered unless laws mandate them, according to MADD.

Until now, that’s been true in Illinois, said MADD national CEO Chuck Hurley.

“Illinois has excellent law enforcement,” he said. “But the judicial system leaks like a sieve. This law will change the catch and release system to one where people are at least caught and tagged.”

In Illinois, the interlocks are mandated only for the five to 11 months licenses are suspended with a first DUI. Drivers can opt not to install them, but then would be banned from driving at all during the suspension period.

Motorists in Colorado get a similar choice — install the devices or get a longer suspension.

The law taking effect in Washington state actually relaxes penalties on drunk drivers, allowing them to avoid a previously mandatory license suspension by getting an interlock. The bill’s author, Rep. Roger Goodman, said too many motorists were driving with suspended licenses.

Motorists could try skirt the devices by, say, having someone else blow into detector or driving someone else’s car. But if caught trying to circumvent the interlocks, they could go to jail.

Within a year, up to 30,000 first-time offenders in Illinois could be using them, state officials estimate.

New Mexico was the first state to mandate the devices in 2005. Since then, according to MADD, that state has seen its drunk-driving deaths fall 20 percent.

Hurley said other states could see the same percentage decline within a few years.

DUI deaths nationally have plummeted to around 15,000 from around 30,000 annually in the early 1980s.

Malham, who supports the technology, said in the future even more advanced technology will enable cars to effectively sniff car cabins, scan faces and eyes of drivers or even test sweat on steering wheels to assess sobriety before engines start.

Not everyone is as enthusiastic.

One of the staunchest critics of interlock laws for first-time offenders is the Washington, D.C.-based American Beverage Institute, a trade association representing restaurants and retailers.

ABI managing director Sarah Longwell said the group backs interlock laws targeting repeat offenders and those arrested with high blood-alcohol levels.

But she said laws advocated by MADD don’t allow judges to distinguish between those who have a few drinks and go just over the 0.08 blood-alcohol legal limit and those who go way over.

“We want sensible alcohol policies,” she said. “We want 10 people to be able to come in and have one drink and not one person to come in and have 10.”

She said current interlock laws could lead to more draconian measures.

“We foresee is a country in which you’re no longer able to have a glass of wine, drink a beer at a ball game or enjoy a champagne toast at a wedding,” she said. “There will be a de facto zero tolerance policy imposed on people by their cars.”

She argued that MADD puts too much emphasis on links between alcohol and traffic deaths, giving too little regard to the roles excessive speed and driver cell-phone use in deadly accidents.

Proponents of interlock laws say studies back their approach. They cite a 2008 study by the Pacific Institute for Research and Evaluation that found interlock devices in New Mexico helped decrease repeat offenses by approximately two-thirds.

MADD also points to figures showing one-third of all drunk drivers have a prior DUI conviction.

The American Beverage Institute questions studies cited by advocates, saying they other factors, like education programs, also account for the declines.

Malham concedes Illinois’ new law isn’t perfect. For one, it only applies to drivers during relatively short license-suspension periods.

“But perfection can’t be the enemy of the good, to quote (18th century philosopher) Voltaire,” he said. “I’d like to see more teeth in the law in the future. But this is a start.”

     Charles Barkley was arrested on suspicion of driving under the influence of alcohol early on the morning of December 31, 2008.  An officer with a law enforcement task force that targets drunken driving saw the former NBA star run a stop sign around 1:30 a.m., said Gilbert police Lt. Eric Shuhandler.  Barkley declined to submit to a breath test but was given a blood test, which is common in Arizona where the police don’t just take “No” for an answer.  The results weren’t immediately available.

     After Barkley was processed, he was cited and released.  He left in a cab, Shuhandler said.  Shuhandler said there was nothing remarkable about Barkley’s arrest and that it is customary to release people after they’ve been arrested on suspicion of DUI.  “There was nothing unusual about how he was taken into custody,” Shuhandler said.  “He was treated exactly like we treat anybody else.”  Barkley was arrested in Scottsdale’s Old Town area, one of the trendiest spots in the Phoenix metro area.  Barkley played 16 NBA seasons for the Philadelphia 76ers, Phoenix Suns and Houston Rockets, and played on the USA Olympic “Dream Team” in 1992 and 1996.  He was an 11-time NBA All-Star and league MVP in 1993.

     On September 11, 2008, Eric Carmen, the man that brought you ’80s hits “Hungry Eyes” and “All By Myself,” was arrested for DUI in Ohio after slamming his car into a fire hydrant. The singer, who first gained national attention with the not-so-salacious “Go All the Way” when he was front man for The Raspberries, handed the arresting police officers his credit card instead of a drivers license and then blew a .23, nearly three times the legal limit in the Buckeye State. According to the police report, Carmen had a half-empty bottle of vodka in the front seat.

Here are my top complaints with Georgia’s breath testing program.  It is one of the primary reasons that I tell most people to refuse the breath test.  If you are close to the legal limit, given the problems discussed below, it is hard to have confidence in the test results.  There are license consequences for such a refusal, so if possible, consult with a lawyer.

1.  Georgia uses antiquated technology.  Georgia uses the Intoxilyzer 5000.  Alabama and many other states stopped using this machine years ago.  There is much better technology on the market that uses two different points on the spectrum for measurement.  Some use fuel cell and infrared spectrometry.  I don’t have the time or space here to discuss all of the problems associated with this machine, but think Pong on the old Atari’s, not Playstation 3.

2. Georgia fails to check the calibration frequently enough.  Georgia only requires that the area supervisor check the machine for calibration once every quarter.  Some states require a calibration check in between the two blow.  Most do it before every test.  If you search for images of the Intoxilyzer online, the device to the right of the machine with the beaker and tubing, is the simulator.  It runs a solution through the machine and the Intoxilyzer checks it. When there is a problem discovered, what happens to all of the people that blew into the machine in the four month period between check?  They are not even told when this happens.

3. Georgia hides the data that the Intox 5000 has the capability of recording.  This data is called COBRA data.  One of the standard features on the Intox 5000 is memory and a modem that records much of the data from each breath sample given on the machine.  It has the ability to transmit this data via modem to a central server for review later.  In Georgia, this functionality has been removed from the machine.  Since we don’t preserve it, the data cannot be reviewed for accuracy, trends, testing errors and officer errors/misconduct.

4. Georgia fails to preserve the breath sample for independent testing.  There is a port on the back of the machine where the expired breath can be expelled to and preserved for later testing.  This is not used in Georgia.

5.Georgia fails to require officers to document machine failures. Georgia only requires officers to document all tests in a log book that sits next to the machines.  The COBRA data is not preserved so these logs cannot be checked for accuracy.  I have clients tell me ALL THE TIME that they blew in the machine 3, 4, 5, 6 times.  Yet the come into my office with one printout showing two blows.  Nine times out of ten, when you get the log, it only shows the last test that they are using to try to convict my client.  What was going on with those other tests?  Was it a problem with the machine?  Was it a problem with the testing environment?

     Defense attorneys were in a Miami courtroom on October 23d seeking a judge’s order to inspect the hard drives every Intoxilyzer 8000 used in Miami-Dade County. Before Judge Jose L. Fernandez, attorney Michael Catalano said, “We’re interested to find why she was unplugging breath machines so that she could cover up mistakes and not tell anybody.” This comes after the Florida Department of Law Enforcement fired the examiner who was responsible for testing all the DUI machines, alleging she failed to follow protocol with the inspections.

     Defense attorneys contend it is a scandal that puts suspicion over thousands of DUI cases in Monroe, Broward and Miami Dade. “The number of cases involved could be as many as 10,000 here in Miami-Dade County,” attorney Richard Hersch explained to a local reporter. “The inspector who has been discharged here was on duty for about 18 months before she was discharged.” In a “notice of dismissal”, the FDLE accuses analyst Sandra Veiga of having encouraged police agencies to abort tests on Intoxilyzer 8000 machines that were giving questionable results. “What the inspector was doing,” Hersch said, “was unplugging the machine if the inspection was failing, then plugging it back in; that prevented the machines from reporting the malfunctions to Tallahassee.”

     FDLE documents revealed that Miami-Dade and Miami Beach police apparently blew the whistle on the state’s testing supervisor. Miami-Dade’s state attorney believes the breath test scandal can be overcome, that the machines in question have passed subsequent inspections and have been shown to be operating properly. The devices run on a computerized system. Outside the courtroom on Thursday, assistant state prosecutor Pat Trese said, “We have every belief they’re working accurately and in a responsible way.”

     The Intoxilyzer 8000 is the only breath test machine approved for use in Florida, there are more than 300 in use statewide (30 in South Florida). Defense attorney Justin Beckham observed, “We’re going to try to get the judges to open up these machines and see what the truth is - the truth is supposed to come out, that’s our job.” Late Wednesday, an FDLE spokesperson said the case was “closed” and there would be no criminal charges pursued against Veiga. The FDLE’s Heather Smith added that the inspector “didn’t follow proper procedures.”

     “She failed to follow the correct testing protocol and would pull the plug on the machine, rather than let it finish the test and record her errors,” Smith said.
“It was not machine failure, but operator failure,” Smith said. In his letter firing Veiga, FDLE Commissioner Gerald Bailey wrote that she had “brought discredit” to the department and it’s breath alcohol testing program.

     A major issue with infrared breath testing devices is that they not only detect the ethyl alcohol found in alcoholic beverages but also in other substances that have a similar molecular structure. Stated differently, these devices identify any compound containing the methyl group molecular structure. And the issue with this is that more than one hundred compounds can be found in a human’s breath at any one time and 70% to 80% of these compounds contain the methyl group molecular structure. The consequence of this is that these methyl group molecular structures will be incorrectly identified and labeled as ethyl alcohol. Interestingly, the more ethyl group substances the breathalyzer detects, the higher the false blood alcohol content estimate will be.

     The National Highway Traffic Safety Administration (NHTSA) has found that people who are diabetics or dieters can have acetone levels that are hundreds, if not a thousand of times higher than people who are not diabetics or dieters. The key issue here is that acetone is one of the many substances that can be falsely detected as ethyl alcohol by some breathalyzers.

     There’s also a variety of products found in the environment that can lead to erroneous BAC results with these machines. Some of these products include substances or compounds found in cleaning fluids, celluloid, gasoline, paint removers, and in lacquers. Other common substances that can result in false BAC levels are alcohol, vomit, or blood in the person’s mouth. False BAC readings can also be caused from electrical interference, dirt, smoke, cell phones, police radios, moisture, and tobacco smoke.

     Infrared breath testing devices can be very sensitive to temperature and will result in false readings if they are not adjusted or recalibrated to compensate for ambient or surrounding air temperatures. Moreover, the temperature of the person being tested is also significant. More specifically, each degree (in Centigrade) in the subject’s body temperature above 34 C (98.6 Fahrenheit)  can result in a relatively large elevation (about 8.6%) in apparent BAC.

     Heather Locklear was arrested on suspicion of driving under the influence of a controlled substance in the upscale Santa Barbara area, authorities said on September 28, 2008. Locklear, 47, was pulled over by a California Highway Patrol officer on Saturday afternoon, September 27th, after a resident reported seeing the actress leaving a parking lot and “driving erratically,” CHP spokesman Tom Marshall said.

     The officer noticed Locklear’s car parked on a state highway and blocking a lane in Montecito, a wealthy community about 90 miles northwest of Los Angeles. She was believed to be alone in the car, Marshall said. In talking with her, the officer determined that she seemed to be under the influence of something, Marshall said.

     Locklear was taken to the police station where she was tested for alcohol and drugs. She was booked at 7:00 P.M. on suspicion of driving under the influence of prescription medication. She was later released from custody. Calls to Locklear’s publicists were not immediately returned. Locklear in June checked into a medical clinic to seek treatment for anxiety and depression. Last year, she got a divorce from Bon Jovi guitarist Richie Sambora after 11 years of marriage.

Sometimes you just have to fight.  It was a weak case and the prosecutor knew it.  It probably should have been reduced to a Reckless Driving, but they wanted to try it anyway.  I am glad we did.  We got a not guilty verdict on the DUI, but as with every jury trial, you learn something more about the way that juries think.  This jury, mostly men, did not like the police officer at all.  If he told them that the sky was blue, they would look out the window to double check.  He was so adamant about his position that he lost credibility with the jury.  They could tell that he was interested in the outcome and testified accordingly.  He was smug too and that hurt him more than anything.  The jury was also upset that the officer did not turn on the video camera to capture what he was observing on the roadside.

ROBERTSDALE, Ala. (AP)—Former NFL star quarterback Ken Stabler was arrested and charged with reckless driving and driving under the influence of alcohol.

Stabler, now a radio analyst for University of Alabama football, was released from jail on $1,000 bond nearly 13 hours after his arrest, police said Monday.

The 62-year-old ex-Crimson Tide quarterback was pulled over for a traffic offense about 12:30 a.m. Sunday, said Brian Middleton, assistant chief of police. He declined to specify what led police to pull Stabler over in the town near the Gulf coast.

Stabler did not immediately return a message left at his office Monday.

Athletic director Mal Moore said it “would be disrespectful and irresponsible” to comment on the allegations against Stabler until the facts are all known.

“Kenny has always been supportive of Alabama athletics, and it’s in times like these that his friends need to be supportive of him,” Moore said.

Steve Gowan, senior vice president of Learfield Communications, which owns multimedia rights for Alabama broadcasts, also said it was too early to comment on Stabler’s situation.

“Our thoughts are with Kenny and his family at this time,” Gowan said. “In circumstances of this nature, our primary concern is for Kenny’s well-being.”

Stabler pleaded guilty to drunken driving following a 2001 arrest in Orange Beach. Authorities dropped drug and reckless driving charges under a plea deal. In 1995, Stabler pleaded no contest to a DUI charge in nearby Escambia County, Fla.

Stabler led the Oakland Raiders to a Super Bowl title in 1977, and also played for the Houston Oilers and New Orleans Saints during a 15-year NFL career.

He was on Alabama teams that won two Southeastern Conference titles, a national championships in 1965 and went undefeated in 1966. He has been the Tide’s color analyst the past decade.

                                                       UPDATE

ROBERTSDALE, Ala. (AP) — Former Alabama and NFL quarterback Ken Stabler has been found not guilty of drunken driving charges in south Alabama.

Stabler was charged with driving under the influence of alcohol after being stopped shortly after midnight June 8 on Alabama 59 in Robertsdale, near Mobile Bay.

After more than three hours of testimony, acting Municipal Judge James Sweet issued his verdict.

“I just don’t think the city has met its burden of proof,” Sweet said.

Stabler, 62, was driving north at 12:32 a.m. when officer Tyler Kane stopped him, according to testimony. Kane, who is now a state trooper, said he was by the side of the road making another stop when Stabler’s vehicle passed within a few feet of him.

Kane said he stopped Stabler’s vehicle.  “His speech was a little bit slurred and I could detect a strong odor of alcohol in the vehicle,” Kane said.

He said Stabler refused to take a breath test. Sweet ruled that police did not observe Stabler for the entire time before the defendant was asked to take the test and would not allow the refusal to be entered as evidence.

Defense attorney Mark Polson said the acquittal will allow Stabler to move on.

“What a relief. Ken has just suffered through this whole episode and this will let him get on with the rest of his life,” Polson told the Press-Register of Mobile.

Stabler played for Alabama from 1965-67 and was drafted by the Oakland Raiders in 1968. He played for the Raiders, the Houston Oilers and the New Orleans Saints before retiring in 1984.

He has been a color analyst on Alabama football broadcast for 10 years but is taking a leave of absence this season.

     On May 4, 2006, Kennedy crashed his 1997 Ford Mustang convertible into a barricade on Capitol Hill at 2:45AM.  An official who was not on the scene said the congressman had appeared intoxicated when he crashed his car, but Kennedy claimed that he was merely disoriented from prescription medications Ambien and Phenergan.  There was an unconfirmed report that Kennedy was seen drinking at the nearby Hawk & Dove bar prior the accident.  Kennedy also stated to officers that he was “late for a vote.” However, the last vote of the night had occurred almost six hours earlier.

     The standard field sobriety tests were not administered, and Kennedy was not arrested on the spot.  Incredibly, Kennedy was driven home by an officer.  On May 5, 2006, Kennedy admitted he has an addiction to prescription medication and announced
he would be re-admitting himself to a drug rehabilitation facility at the Mayo Clinic in Minnesota where he had sought treatment for prior addictions.  He has stated that he has no recollection of the car crash.   

     On June 5, 2006 Kennedy was released from drug rehab.  After being asked if he expected any special treatment from authorities, Kennedy expressed that he hoped they would treat him as if he “were an African-American in Anacostia”.  On June 13, 2006, Kennedy made a deal with prosecutors and pleaded guilty to a charge of driving under the influence of prescription drugs.  He was sentenced to one year probation and a fine of $350.   Two of the three charges (reckless driving and failure to exhibit a driving permit) were dismissed. He was also ordered to attend a rehabilitation program that includes weekly urine tests, twice-weekly meetings with a probation officer, near-daily Alcoholics Anonymous meetings and a weekly meeting of recovering addicts 
 

     “30 Rock” star and former “Saturday Night Live” regular Tracy Morgan was
arrested in predawn hours in November, 2006, in New York on charges of drunken driving.  The 38-year-old comic was charged at the 33rd Precinct.  Morgan was also on probation in Los Angeles for a DUI conviction. He was charged in January, 2006, for driving with a blood-alcohol level of .13 — well above the .08 legal limit — and a month later he pleaded no contest to a misdemeanor charge.
     The comic was sentenced to 36 months of probation and ordered to attend an
alcohol-education program.  Police sources reported that Morgan was stopped at 4:38 A.M. in the Bronx and “was unable to maintain a position in a lane of traffic.”   Morgan was a “Saturday Night Live” cast member from 1996 to 2003, and was known for such recurring characters as Dominican Lou, Mrs. Parker and Captain Munclair Vanderhousen III.   He left the show when NBC offered him a chance to develop his own “Tracy Morgan Show,” but that venture was short-lived.   Morgan has nevertheless stayed busy, appearing in such films as “Little Man” with the Wayans brothers, and “Head of State” with Chris Rock, before returning to TV in “30 Rock.”

     GLENDALE, Calif. —  In October, 2006, Haley Joel Osment pleaded no contest
to misdemeanor drunken driving and drug possession charges resulting from a July accident in which he crashed his car into a mailbox.
     Superior Court Judge John Doyle sentenced the 18-year-old actor to three years probation and ordered Osment to spend 60 hours in an alcohol rehabilitation and education program, as well as attend at least 26 Alcoholics Anonymous meetings over a six-month period.  Osment, who didn’t attend the court hearing, also must pay $1,500 in fines.  The actor’s attorney, David Wood, entered the no contest pleas on his client’s behalf to one count each of misdemeanor driving under the influence and misdemeanor marijuana possession. Two other charges — another misdemeanor DUI and a vehicle code infraction — were dropped by prosecutors.  Osment fractured a rib and injured his shoulder when he crashed and flipped his 1995 Saturn in La Canada Flintridge on July 20. No one else was in the car, which hit a mailbox mounted on a brick base.

     A Texas state lawmaker instrumental in the passage of legislation increasing penalties on drunk drivers was himself arrested late Wednesday (April 30, 2008) for driving while intoxicated (DWI). Texas State House Transportation Chairman Mike Krusee (R-Round Rock) now faces the special $3000 “driver responsibility fee” that he rushed into law in June 2003.

     “Krusee’s drunk driving, and placing our families in danger, is just yet one more disappointment from an elected official who always ignores the public,” Sal Costello, founder of People for Efficient Transportation, told TheNewspaper.

     According to Krusee’s arrest report, state trooper Michael A. Scheffler spotted a black 2007 BMW 530i weaving on Anderson Mill Road near Highway 183 at 10:13pm. Scheffler also noted that the BMW’s registration expired in December 2007 and initiated a traffic stop. The trooper noted Krusee manifested many of the standard indicators of intoxication, including the “strong odor” of alcohol on Krusee, “the driver’s eyelids were red and watery and his eyelids were droopy,” and the failure to pass sobriety tests. Krusee allegedly refused to take a breathalyzer, which means that unless his attorney files an appeal within fifteen days he will be deemed automatically guilty of refusal. Starting June 10, his license would be suspended until he pays a $125 reinstatement fee any time after October 28.

     In his second trial for the same offense, Krusee faces the $3000 driver responsibility fee, a judicially imposed fine of up to $2000 and between three days and six months in jail. Generally, first-time offenders receive probation instead of jail time. This probation involves reporting in to a social worker monthly, attending a 12-hour educational course, performing between 24 and 100 hours of mandatory community service, submitting to various evaluations and attendance at a “Victim Impact Panel.” Each of these additional requirements comes with its own set of additional fees and costs.

     Krusee is one of the most outspoken advocates of toll roads in the state and had been rumored in line for appointment to the Texas Highway Commission. Krusee is not running for re-election.

Wausau, WI. Mar 28 (AP) – Cars lining the street. A house full of young people. A keg and drinking games inside. Police thought they had an underage boozing party on their hands.

But though they made dozens of teens take breath tests, none tested positive for alcohol. That’s because the keg contained root beer.

The party was held by a high school student who wanted to show that teens don’t always drink alcohol at their parties.  Dustin Zebro, 18, said he staged the party after friends at D.C. Everest High School got suspended from sports because of pictures showing them drinking from red cups.

Zebro purchased a quarter-barrel of 1919 Classic American Draft Root Beer, and by 10 p.m. Saturday, the scene outside his rural Wausau home had all the makings of a teen drinking party – cars, noise and kids…

Nearly 90 breath tests were done, and officers even searched locked rooms for hiding teens.

Now, there’s a lesson to be learned here, but it’s probably not the lesson the cops wanted to teach these youngsters.

Richie Sambora has been arrested for DUI in Laguna Beach, California.  According to news reports, he was cooperative with officers and was arrested without incident.  He reportedly took some field sobriety tests prior to getting arrested.  It appears that in addition to the DUI, he will also be charged with child endangerment since his daughter and another juvenile with him.   The Nanny drove the girls home.  Sambora has reportedly checked into rehab.

In Georgia, if convicted, he could actually get 3 DUI convictions for this one episode and lose his license for 5 years as a “habitual violator.”  DUI and DUI child endangerment charges do not merge and count as separate convictions.  I don’t know what the law is in California, but someone had better refer this man to Lawrence Taylor (after he gets out of rehab).

Atlanta ranks 12th on this list.A sort of interesting article.  They rely on various factors such as liver disease, DUI arrests and some statistics from MADD in determining the ranks.

See article HERE.

Thanks to lawyers that have been fighting for the source code that controls the operation of the Intoxilyzer it looks like the tide is turning. Previously, prosecutors all over the country have been objecting to turning it over because it is a “trade secret” and that the State does not have it in their possession.

Some Judges have Ordered CMI to turn it over and the company has been flatly refusing to do so. See Contempt Order here. cmi-turnover-order.pdf

CMI has finally decided to cooperate. They are willing to let it be examined subject to a protective order. I don’t believe this has been accomplished yet and we have not seen the proposed protective order and how restrictive it will be. See attached. CMI memo

CMI’s new “state of the art” machine has more problems.  Now folks are getting charged with refusals through no fault of their own.

See the attached memo. fdle-memo.pdf

Your hematocrit level is the ratio of aqueous portions and solid portions of your blood.  When alcohol enters your bloodstream it is carried in the plasma (liquid portion).  Alcohol does not get absorbed into the red blood cells and other solid material in your blood  Someone with a higher hematocrit level will have more solid parts in their blood and therefore will have less space for the alcohol to disperse in the liquid portion of the blood.  Normal hematocrit differences can elevate a BAC by 10% to 14%.