Georgia DUI Blog

Just this week the U.S. Supreme Court decided the case of Missouri v. McNeely.  The Court held that the mere passage of time (resulting in the metabolism of alcohol) did not justify a warrantless blood draw.  The Court did not outlaw all non-consensual warrantless blood testing in DUI cases, but they should now be rare across the country.  The Court disagreed with the State of Missouri, which argued that the passage of time created an “exigency” which justified the failure to obtain a warrant.  Georgia law did not purport to allow forced blood testing without a warrant, but some aspects of our implied consent law may now be called into question. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Hunter v. State, 55 A.3d 360. Del. Supr., (2012).

The Supreme Court of Delaware found that the admission of a test result that was not in compliance with the manufacturer’s requirements.? Furthermore, this error jeopardized the fairness of the trial.? Specifically in this case, using the expired vacutainer tubes in the blood test kit was in direct contravention of the manufacturer’s specification sheet for the vacutainer tubes. The same was true of shaking the tubes vigorously, which was also in direct violation of the manufacturer’s instructions for use of the kit.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Alcohol reaches the surface of airways by diffusing from the bronchial circulation. When a person inhales, alcohol is taken from the airway surface and the inhaled breath becomes saturated with alcohol before just as it reaches the alveoli, where “deep lung air” is found. In the alveoli alcohol in the breath is in equilibrium with alcohol in the pulmonary capillary blood. Even though ethyl alcohol may exchange with the blood in the alveoli, since there is no partial pressure difference, there is no net change. The exchange in the airways will happend even though the bronchial blood flow is only about 1% of the total cardiac output because of alcohol’s extremely high solubility.

When a person exhales, the alcohol in the air passing from the alveoli to the mouth re-deposits alcohol onto the surface of the airways. In the meantime, some alcohol has re-entered the blood stream by way of the bronchial circulation. So the airways have been partially recharged with alcohol.

But there is still a net partial pressure driving force toward the airway tissue. With an average exhalation the exhaled air loses about 20% of the alcohol that it had in the alveoli. If a person takes a full and complete inhalation and exhalation, they would lose less alcohol and the measured alcohol in the breath would be higher than it should be. If a short exhalation occurs, then the alcohol measured in the breath will be lower than expected.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     A study published by the Journal of Clinical Forensic Medicine concludes that, although it my might an effect, blood in the mouth will not significantly alter the affects of a breath alcohol test.  There are detractors, who point out the issue is one of saliva and the unmistakeable reduction in BrAC that occurs when rinsing the mouth is permitted before a breath test. 

     This study found some statistically significant changes in breath alcohol concentration, but they were usually confined to third digit.  On the other hand, rinsing the mouth with water routinely leads to reductions of .03 to .04.  This is an issue where both scientists and attorneys who usually are employed by the defense have differences of opinion.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website    

Carlton Fisk, who made baseball history when he hit a 12th inning home run to win Game Six of the 1975 World Series, was charged with DUI and related traffic offenses on October 22, 2012.  He was found asleep in his truck in a cornfield in New Lenox, which is about 35 miles southwest of downtown Chicago.  Police reports indicate that officers found Fisk behind the wheel late that evening with an open bottle of vodka on the truck’s floor. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Voluntary intoxication is not a defense. However, in most jurisdictions involuntary intoxication is a defense to most offenses. In some jurisdictions, involuntary intoxication is treated as an affirmative defense, which means that the prosecution must disprove it beyond a reasonable doubt. In other places, it is simply not available as a defense to a DUI.

A Texas appeals court has which held that involuntary intoxication is not a defense in a DWI case involving both alcohol and Ambien. This same appellate court approved a defense that would be characterized as involuntary intoxication in most jurisdictions in a case of the mistaken pill. The Defendant meant to take Soma and Ultram in the morning. He had taken Ultram for about seven years, and in order to encourage him to take his medication his wife put out the pills for him. On the date of his arrest she apparently put out an Ambien, and he took it believing it to be something else.

The trial court rejected the defense of accident or involuntary intoxication, and the court of appeals agreed. However, the judges found that the defense of “involuntary act” was available if the Defendant introduced evidence that an independent event, such as the conduct of a third party, that could have precipitated the incident. If, for example, a third party slips a “mickie” in a drink or forces a person to consume an intoxicant and get behind the wheel, then the voluntary conduct defense is available. Although the Defendant voluntarily took the pills his wife laid out for him, he involuntarily took the Ambien because of his wife’s act.

Many courts have concluded that the most difficult cases to decide involve those where a defendant knowingly ingested a prescription drug. There is an Illinois case that stands for the proposition that the unexpected and unwarned adverse effect of a drug taken on doctor’s orders is involuntary. California also has case law holding that intoxication caused by knowingly ingesting prescription medication can be either voluntary or involuntary, depending on whether the defendant had reason to know he/she would become intoxicated.

The best known Georgia case involving Ambien sleep driving is Myers v. State, 302 Ga. App. 753 (2010). In this case the lady had taken two Ambien, her regular daily dose of Xanax, and had a couple of glasses of wine before bedtime. The jury charge instructed the jury that, “The criminal intent element …is simply the intent to do the act which results in the violation of the law, not the intent to commit the crime itself. Consequently, to the extent that the defendant here argues inability to form an intent to commit the crime for which she is charged, it is immaterial, which means it should not be considered. While proof of criminal intent is required to convict the defendant of the crimes with which she is prosecuted, the state is not required to prove that the defendant intended to drive under the influence of alcohol in violation of the law or on the wrong side of the road. Rather, it is required to prove beyond a reasonable doubt only that while intoxicated she drove and drove crossing over…the right line, intending such acts.”

Relying on earlier Georgia case law, the Court of Appeals upheld the conviction. Those older cases had held that the criminal intent required for a conviction is simply the intention to commit the act which results in the violation of the law, not the intent to commit the crime itself. In other words, the Court relied on language that is included in most jury instructions in Georgia DUI cases, which basically instructs the jury that DUI is a crime of general intent and not specific intent. Therefore, and the record is not clear, perhaps trial counsel should have argued that his client lacked the intent to drive as opposed to the intent to commit the crime. Both the jury instruction approved in this case and the older cases do require the intent to drive; however, in this decision the Court of Appeals seemed to emphasize that the Appellant had intentionally ingested Xanax, Ambien, and alcohol, and then drove in an intoxicated state. What is overlooked (or perhaps assumed) is the language from several older cases and the jury instruction in this case - “that she intended to drive.” Therefore, even when faced with a generally hostile jury instruction, the lack of general intent may still be argued.

Despite some slivers of hope and some very narrow openings the courts have left us when considering, and usually rejecting, other defenses, there is really a dearth of case law regarding actus reus in the context of Ambien sleep driving defenses. Georgia has a number of criminal cases stating that it is a requirement but not defining the term. Nevertheless, even the Texas appeals court has recognized that a voluntary act (actus reus) is required, and that may be the best approach of all.

A state may make an offense a “strict liability” offense or a crime of general intent, thus eliminating the need to prove mens rea (intention to commit a crime). But the State must still prove that there was a voluntary act - the actus reus. Sleep driving by its very nature is not a conscious, much less voluntary, act.

The Model Penal Code Section 2.01 lends support to this position.

1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or omission to perform an act of which he is physically capable.

2) The following are not voluntary acts within the meaning of this Section:

a) a reflex or convulsion.

b) a bodily movement during unconsciousness or sleep.

Similarly, in Colorado the applicable statute, C.R.S. 18-1-502 provides that, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.” If a culpable mental state is not required, Colorado law characterizes the offense as a “strict liability” offense. Nevertheless, a voluntary act or actus reus is still necessary to obtain a conviction.

In a non-DUI case the Washington Court of Appeals has held that, although the legislature has the authority to create a crime without a mens rea element, a minimal mental element is required to establish the actus reus, and that is the element of volition. State v. Deer, 244 P.3d 965 (Wn. App. 2010). As a matter of Federal constitutional law the State bears the burden of proving beyond a reasonable doubt that a defendant committed a volitional act. This argument should certainly be made in any case where a judge is not inclined to recognize the actus reus requirement; if is not merely common law in origin but has become Constitutionally mandated by virtue of the 14th Amendment. While we understand that there are genuine cases of otherwise innocent people sleep driving, we can expect continued hostility from prosecutors (one of whom recently characterized the defense as a “fad”) and skepticism from thebench. Nevertheless, thorough research of the legal precedents applicable in a particular case, and in the event they are sparse, from around the country should yield at least one viable defense theory that even the worst judge will not reject, or face reversal.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     Zolpidem Tartrate, sold under the brand name Ambien, is a non-benzodiazepine sedative hypnotic. The non-benzodiazepines are a class of psychoactive drugs that have pharmacological characteristics similar to the benzodiazepines, with similar benefits, side effects, and risks, although they have dissimilar chemical structures. A sedative hypnotic is a drug that depresses the activity of the central nervous system and is used chiefly to induce sleep and to allay anxiety.

     Barbiturates, benzodiazepines, and other sedative-hypnotics have diverse chemical and pharmacologic properties that share the ability to depress the activity of all excitable tissue, especially the arousal center in the brainstem. Sedative-hypnotics are used in the treatment of insomnia, acute convulsive conditions, and anxiety states and to facilitate the induction of anesthesia. Although sedative-hypnotics are generally sleep inducing, they may also interfere with rapid eye movement (REM) sleep that is associated with dreaming. It has also been noted that when administered to patients with fever some of these drugs may act paradoxically and cause excitement rather than relaxation.

Sedative hypnotics may interfere with temperature regulation, depress oxygen consumption in various tissues, and produce nausea and skin rashes. In elderly patients they may cause dizziness, confusion, and ataxia. Drugs in this group have a high potential for abuse that may cause physical and psychological dependence. Treatment of dependence involves gradual reduction of the dosage because abrupt withdrawal frequently causes serious disorders, including convulsions. Buspirone and zolpidem are among the newer non-barbiturate non-benzodiazepine sedative hypnotics.

     Zolpidem is a benzodiazepine receptor agonist with high binding affinity for the GABA receptor. It was developed as a drug with a structure different from the benzodiazepines in order to provide it with an affinity for only a subset of the benzodiazepine receptors resulting in hypnotic properties without significant anti-convulsant, anti-anxiety, or muscle relaxant properties associated with the various benzodiazepines. Therefore, Zolpidem may be said to “compete” with the benzo’s for the attention of only some of the same receptors.

     Zolpidem has been available in this country since 1993, and for several years has also been available in a time release formula. It is available in both a five milligram and ten milligram tablet. The manufacturer recommends that it only be taken when a person has eight hours available for uninterrupted sleep. The peak concentration of the drug usually appears in the bloodstream between one and a half to two and a half hours. Therapeutic levels are reported as 29 to 113 ng/ml following a 5 mg. dose and 58 to 272 ng/ml following a 10 mg. dose according to the package insert.

     By around 2005 reports of parasomnias began surfacing. These are undesirable motor, verbal, or experiential events that occur during sleep. One of the more common was uncontrolled sleep eating. Raw eggs, uncooked rice, loaves of bread - they were all fair game. Cooking - and we are not talking about dishes that are particularly appetizing - was also reported, as well as sleep walking and sleep driving.

     Initially the manufacturer, Sanofi-Aventis, took the position that four percent of the population already suffered from somnambulism, and that while “events of sleepwalking have occurred during treatment with Ambien, these instances cannot be systemically linked to the product.”

     Finally, in March of 2007 there were two important developments. First, the Food and Drug Administration demanded that the makers of thirteen sedative hypnotic drugs include warnings about possible unusual behavior including sleep driving and recommended that the manufacturers conduct clinical studies to investigate the frequency with which sleep driving and other parasomnias occur in association with each product. Second, the manufacturers notified health care providers (i.e, the doctors prescribing the stuff) that the precautions were being revised to warn patients about the possibility of sleep driving and that such “complex behaviors” had been reported. Sanofi Aventis conceded that these events could occur in sedative hypnotic naive as well as sedative hypnotic experienced persons. Ambien (Zolpidem) was not the only drug affected. The others included Butisol Sodium, Carbrital, Dalmane, Doral, Halcion, Lunesta, Placidyl, Prosom, Restoril, Rozerem, Seconal, and Sonata. While Ambien related sleep driving cases have been encountered by all DUI defense attorneys, cases involving the other drugs are rare. Nevertheless, these drugs are on the same list as Ambien, so if a defense is viable for Ambien, it should be viable for these other medications as well.

     The question remains why would someone who has taken Ambien get out of bed and eat unappetizing food, cook stranger things, drive their cars into telephone poles, and have no memory of the event? A possible explanation for zolpidem induced nocturnal behavior is that after a person is aroused from sleep, he or she will walk, drive, or eat, and subsequently not recall the event after returning to sleep because of the sedation-mediated amnesic properties of zolpidem. Another possibility is that an arousal occurred out of deep sleep with the parasomnia occurring in this electroencephalographically verifiable stage of sleep. The author believes that at least in some cases the latter has been experienced, because the drivers’ interaction with police and other individuals was extremely incoherent, their behavior was “zombie-like”, and they stared blankly at the police as if looking through them.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     Richard Roberts, former president of Tulsa’s Oral Roberts University and son of the the man who founded the school and spoke to millions on his Sunday morning program for decdades, was arrested early on morning of January 24, 2012, on suspicion of DUI and speeding, officials told The Times.

     Shortly after midnight an Oklahoma Highway Patrol officer stopped Roberts, who was reportedly driving a black 2006 Mercedes at 93 mph in a 65 mph zone on a highway west of U.S. 169, according to the arrest report.  After stopping Roberts, 63, the trooper noted that he smelled strongly of alcohol.  Roberts allegedly failed two coordination tests and his breath test result was .11.  Roberts was booked into the Tulsa jail and released a few hours later on $1,100 bail, officials told The Times.

     He resigned as president of Oral Roberts Universityin 2007 after he and his family were accused of abusing university and ministry assets.  Later he was named President Emeritus.  All ORU employees are required to sign a pledge to avoid consuming any alcoholic beverages.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

      Braves pitcher Derek Lowe was charged with driving under the influence of alcohol within days after pitching coach Roger McDowell was accused of making anti-homosexual comments before a game in San Francisco last weekend.  Gordy Wright, a spokesman for the Georgia State Patrol, said a trooper stopped Lowe’s vehicle about 10 p.m. on Thursday, April 28th, on an Atlanta street. The trooper detected an odor of an alcoholic beverage and administered a “field sobriety test,” which resulted in Lowe’s arrest.  Initial reports failed to identify the nature of this test, but additional information should be forthcoming. 

     The 37-year-old right-hander was charged with DUI, reckless driving and improper lane change, according to the Georgia State Patrol.  Lowe declined to take a breath test before he was released, and the officer did not attempt to obtain a search warrant for a blood best, although he could have done so under state law.  The Atlanta Journal-Constitution has reported that Lowe was allegedly racing another vehicle when he was pulled over.

     Hundreds of drunk driving convictions in Ventura County could be tossed out because a defect in some of the handheld Breathalyzer machines purchased earlier this year is causing inaccurate blood-alcohol readings. The Ventura County District Attorney’s Office has sent memos to local attorneys saying that eight Intoximeter Alco-Sensor V breathalyzers have shown “erratic results” in blood-alcohol tests taken between January 20th and March 31st, according to Kevin Drescher, the supervising attorney with the felony unit.

     The county purchased 128 of the devices, paying about $4,800 for each one. Drescher said he didn’t know how many people charged with DUI were tested with the Alco-Sensor V during that time. “I don’t have the actual numbers,” he said, adding that the office was still looking into the matter. “Obviously, we are trying to do what’s right in this situation.” He added the information on who used the eight defective devices should be easy to obtain since it is data entered into the machine. Drescher said law enforcement has stopped using all Alco-Sensor V devices.Assistant Sheriff Gary Pentis said Alco-Sensor V had a defective mouthpiece resulting in “irregular readings.” He said the defective machines will be fixed, tested and returned to the county in about three months. The department will use the older model, Alco-Sensor IV in the meantime. He said every law enforcement agency in the county uses the device.

     The District Attorney’s Office sent the memo to the Public Defender’s Office on April 15th, said Chief Deputy Public Defender Monica Cummins. She said about 160 clients who were either convicted of DUI during this time or have cases pending, will be contacted by the office. “Some cases are still open,” she said. Cummins said the defective machines had “no evidentiary value” that could be used in court, but could have resulted in people getting convicted or pleading guilty to drunk driving based on erroneous Breathalyzer tests results.Drescher said his office will check on a “case by case” basis where defective devices were used to determine the appropriate thing to do.

     Attorney Robert Sandbach said a client’s arraignment for drunk driving was postponed because he needs more information about the Alco-Sensor V. He and his client went to the Department of Motor Vehicles Tuesday to request a postponement on a hearing to suspend the client’s license. He said his client was “alarmed and shocked” after finding out the machine was unreliable and possibly inaccurate. Sandbach said he is aware of two other clients who were arrested for DUI and were tested by the Alco-Sensor V. 

     Sandbach said on top of the jail time, fines and fees, and getting a license suspended, there is another toll for the wrongly accused. “The embarrassment of going through the process only to find out that the evidence was not reliable,” said Sandbach.

     During a news conference in January, Ventura County Sheriff Geoff Dean said the use of the microphone-sized instrument would improve safety in the community, providing instant reading of a motorist’s blood-alcohol level. The devices were funded through a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration. Officers were given about four hours of training on the devices before being sent out into the field.

     Attorney Mindy McQueen, who specializes in DUI cases, said Breathalyzer devices have never been infallible. She said the technology to make the devices faster, smaller and more economical has resulted in manufacturer design flaws.”These machines have never been infallible and that’s something that defense attorneys have tried to point out for years,” said McQueen, a member of the California DUI Attorneys Association.

     Pentis said the machines passed stringent testing before they were put to use. He said an officer in the field discovered the problem, reported it immediately, and the machines were pulled out and tested. Apparently temperature played a part in the false readings. Pentis said the only way the sheriff’s crime laboratory could duplicate the flaw in the Alco-Sensor V was to put it into a freezer. Pentis said the Alco-Sensor must be 100 percent accurate before it will be used by law enforcement. He did not explain why it was put into use when it was clearly not 100 percent accurate.

     Cummins said the Public Defender’s Office will move to have the convictions dismissed in cases where there may have been blood-alcohol errors. But some people who were found guilty or pleaded guilty as a result of these false readings have already served jail time, paid thousands of dollars in fines and have done community service as part of the conviction, Cummins noted. Also, harsher penalties are meted out to motorists who blow a .15 percent blood-alcohol level, said Cummins. In California, a blood-alcohol reading of .08 is considered the benchmark for being legally intoxicated.

A former MADD chapter president in Gainesville, FL was charged with DUI, see news article.  Debra Oberlin, 48, was arrested around 1:00 a.m. February 18 after police say the car she was driving was swerving on Northwest 39th Street. According to the arrest report she was given two breathalyzer tests and measured .234 and .239. The limit in Florida is .08.  Written by Richard N. Blevins, Jr.

In Georgia you can be arrested and prosecuted for driving a motor vehicle under the influence of drugs.  Some law enforcement officers have completed the Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) course and are trained to conduct additional tests to determine if someone should be arrested for operating a vehicle under the influence of drugs.  I just completed the course, the same one that law enforcement officer complete in their training.  I learned about the three additional tests that are used on the roadside to determine if someone is under the influence of a drug.  Drugs are broken down into seven categories:  CNS Depressants, CNS Stimulants, Hallucinogens, Dissociative Anesthetics, Narcotic Analgesics, Inhalants, and Cannabis.To test for a subject for operating a vehicle DUI-Drugs, the look at general indicators and place them into a matrix to determine what drug you are under the influence of.   They are required to administer the Horizontal Gaze Nystagmus (HGN), Vertical Gaze Nystagmus (VGN), Walk and Turn and One Leg Stand tests.  Next they perform three more evaluations:  Pupil Size Observation, Lack of Convergence and the Romberg Balance Test.  Written by Richard N. Blevins, visit my website.

Dozens of DUI cases in Philadelphia will be re-tried because of a bad breathalyzer, officials announced on March 9th.  Prosecutors have conceded that at least one of the breath testing devices used in the city was showing incorrect blood alcohol levels.

The district attorney’s office has agreed that in cases where people were found guilty solely because of the test (sounds like only guilty pleas to us), they will get a new trial.  In cases where other evidence was obtained, such as witness testimony (any case that ever went to trial?) or a blood test, the defendants would not be affected by this development.  The problem could affect about 200 convictions.

As of this date we have not been able to determine the exact nature of the problem with Philadelphia’s breath testing device.  We will update this post if more details come to our attention. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

NFL player Braylon Edwards‘ DUI trial has been continued in New York until May.  His attorney is attempting to suppress the breath test taken.  Edwards gave a breath test the registered .16, which is twice the legal limit in Georgia.  Suppressing the breath test is a good way to attack the State’s case against you.  It appears his attorney is doing what our firm would do in a case like that.

     Miguel Cabrera, the slugging first baseman for the Detroit Tigers, was arrested in Florida on February 16th for driving under the influence of alcohol and two counts of resisting an officer without violence.  According to Mark Weinberg with the St. Lucie County Sheriff’s Office, he was booked into the St. Lucie County Jail at 12:20 a.m. and released at 7:45 a.m., after posting $1,350 bond.

     Cabrera had not yet reported to Tigers spring training in Lakeland, Florida, and the arrest complicated matters because there were issues to work through with the office of the Commissioner of Major League Baseball and the players’ association.  He made one very smart move in the days that followed.  Instead of hiring a “celebrity” lawyer or one with a silk stocking civil background, he retained Michael Kessler, who is perhaps the finest DUI attorney in south Florida.  Kessler is well known nationally and highly regarded by other members of the National College for DUI Defense.  This baseball player chose a formidable DUI defense - not a quick guilty plea. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

If you are charged with DUI, you need to find and hire a lawyer that will help you in your case, if you just don’t want to walk in and enter a guilty plea.  Some things to look for in hiring your attorney:  Does he/she know their stuff?  Do they attend seminars, and are they trained in SFST and Intox?  Are they members of any professional DUI or criminal organizations?  Are they current with the latest DUI law?  Ask around the courthouse and see who the bailiffs, lawyers and court clerks recommend.  I am a member of the National College of DUI Defense, National Association of Criminal Defense Lawyers, Georgia Association of Criminal Defense Lawyers, certified in NHTSA and the State of Georgia Standardized Field Sobriety Testing and DUI Detection, certified as an operator of the Intox 5000, 10 years of law enforcement experience with the U.S. Army, DeKalb County Police, Milledgeville Police and Baldwin County Sheriff’s Office, 4 years of experience as a prosecutor in Cobb County with the Solicitor’s office and District Attorney’s office and 7 years as a DUI Defense attorney.  Written by Richard Blevins  visit my website.

If you are stopped and arrested by a law enforcement officer in Georgia for DUI, you may face several things if you are convicted in court. The maximum penalty for a first DUI conviction in Georgia is 12 months in custody and a $1,000.00 fine. The minimum penalty for a first DUI in Georgia is 10 days in jail and $300.00 fine. There are a few mandatory requirements: 40 hours of community service, Risk Reduction course, known as DUI school, an alcohol evaluation and any complete any treatment that is recommended. The is also a one year suspension of your driver’s license. You may be eligible for a temporary driving permit for 120 days.    Written by Richard Blevins  visit my website.

The City of Kennesaw, Georgia and other local law enforcement agencies located in Cobb County are cracking down on underage drinking.   In 2010, 4,197 citations or arrests in Cobb County were reported for DUI and minor in possession of alcohol. As reported in the Marietta Daily Journal.  Our office has experienced this increase through the representation of numerous individuals charged with DUI or minor in possession of alcohol.  In Georgia minor in possession of alcohol carries a maximum sentence of 6 months in jail and/or a $300.00 fine.  You can be eligible for a diversion program or a conditional discharge.  Our law firm has the experience to assist you with these charges to avoid a conviction and work to get your arrest record expunged.  Written by Richard N. Blevins, Jr., a former Cobb County prosecutor and former police officer, visit my website.

Earlier this month, I had the pleasure of undergoing training to be certified in DUI detection and Field Sobreity Testing (FST) in accordance to the standards set out by the National Highway Traffic Safety Administration (NHTSA).  I had priously been certified by the State of Georgia in Standardized Field Sobriety Testing, while I was a police officer in DeKalb County, Georgia.  During the training, I learned how to administer the three standardized field sobriety tests, Horizontal Gaze Nystagmus test (HGN), the Walk and Turn test and the One Leg Stand test.  The HGN test looks for nystagmus in the eyes.  Nystagmus is the involuntary jerking of the eyes.  The officers are trained to look for 6 clues.  The clues are lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees.  If four clues are found, then NHTSA has conducted studies to show that it is 88% accurate that the person has a BAC over a .08.  On the second test, the walk and turn, the officer is looking for eight clues.  Two are in the instructional phase and six are in the walking stage.  They are: Starts too soon, unable to maintain balance, stops while walking, misses heel to toe, walks off line, raises arms, improper turn, and wrong number of steps.  If the officer observes two clues then NHTSA’s study shows it is 79% accurate that the person has a BAC of .08 or more.  The final standardized test is the one leg stand test.  Here, the officer is looking for four clues.  They are: Puts foot down, raises arms, hops, and sways.  If the officers observes two clues then NHTSA’s study shows it is 83% accurate that the person has a BAC of .08 or more.

Hiring the right attorney to look at the administration of the tests and other factors that could compromise the validity of each test is important in your DUI case.  If you are charged with DUI in Cobb County, Georgia or any surrounding county, please visit my website to discuss your case.

Written by Richard N. Blevins, Jr., former Cobb County State Court prosecutor, Assistant District Attorney in Cobb County, and former police officer.

The National Highway Traffic Safety Administration created three standardized field sobriety tests that law enforcement officers use in their DUI investigations.  They are the Horizontal Gaze Nystagmus test (HGN), Walk and Turn test, and the One leg stand test.  Officers are trained to look for a number of clues in each test.  In the HGN they are looking for 6 clues, in the walk and turn, they are looking for 8 clues and the one leg stand they are looking for 4 clues.  NHTSA conducted a study and it was shown that 88% of individuals who exhibit 4 or more clues in the HGN have a .08 or higher BAC (Blood Alcohol Content).  If 2 or more clues are found on the walk and turn test, 79% of the individuals have a .08 or higher BAC in the study.  If 2 or more clues are found on the one leg stand test, 83% of the individuals have a BAC of .08 or higher in the study.Hiring an experienced attorney to assist you in looking to see if these tests are administered correctly, could go along way in helping you with your DUI case.  Written by Richard N. Blevins visit me at my website or www.mariettacriminaldefense.com