Can you be your own drunk driving defense attorney?
- Can you be your own drunk driving defense attorney?
- Innocent Circumstances can Make You Seem Impaired When You Aren’t
- What You Need to Know
- If You are Stopped
- You Should
- At the Roadside
- Remember, These Tests are Voluntary. You Should Politely Refuse
- The 30-Day Rule and the 1205 Form
- About the Miranda Rights
- At the Police Station
- The “Gray Box”
- Georgia Zero tolerance law
- Georgia DUI Less Safe Law
- Problems With Interpreting the “Gray Box”
- If You are Formally Charged
- Several Types of Bond can Usually be Posted 3
- If You Plead Guilty to a DUI
- How a DUI Lawyer can Help
- What to Look for When Selecting a Lawyer
- Some Common-Sense Tips for You
Police officers’ business is to ensure the safety of our highways and citizens. Questioning whether you should be behind the wheel and forming an impression of your behavior and condition is part of their job. Don’t make it harder on yourself by assuming your condition is not their business. Having a harsh edge or an attitude with an officer, especially one who has just pulled you over, will only make things more difficult for all involved, including you. Please be respectful.
Respect and caution are especially important right now. People are suspicious of the police and their intentions due to so many national reports of officers using excessive force, even deadly force. Police officers are in turn suspicious as they approach cars they have pulled over.
Innocent Circumstances can Make You Seem Impaired When You Aren’t
The fact is that fatigue, illness, even being lost can produce a sense of disorientation that can be mistaken for being under the influence of alcohol. It may also be the case that you have consumed some alcohol.
A combination of impressions about you and your driving could lead to a charge of Driving Under the Influence (DUI).
What You Need to Know
The law does not specify that it is illegal to drink and drive. The issue is whether you are a less safe driver because of the alcohol or drugs you have consumed, thereby causing a safety hazard on the roads.
You don’t have to be drunk to be charged with a DUI. You may perceive yourself as very alert, although perhaps a bit careless. In many cases, drivers do not perceive themselves as drunk.
A DUI is a misdemeanor. It is a criminal, not a civil case, and your liberty is at stake. The consequences of a DUI conviction can be severe. Once you have been stopped on the road, you become involved in the criminal justice system’s process, and you may have to prove your innocence. This could be confusing and frightening.
If You are Stopped
Don’t underestimate the power of the first impression! What the officer sees, smells, and hears during the first moments of contact will create an impression of whether or not you are under the influence. Officers don’t know what to expect. Remember, you’re a possible criminal: Their job is to protect us from unsafe drivers. If you become belligerent or argumentative or in any way give them a hard time, you may be building a case against yourself. They are assessing your sobriety. Your attitude affects their judgment — and their judgment determines the next step.
It is very difficult to reverse a negative first impression. You will face this person again in court, talking to your judge or jury about your guilt or innocence.
Be prepared: Have your driver’s license, car registration, and proof of insurance readily available to show the officer.
Stay calm: Drivers tend to get “blue light fever” and feel guilty, even if they are not. Don’t panic. You may or may not have committed a traffic violation. Take this interaction with the officer very seriously. If you have had a drink, remember that drinking does not necessarily equate to “driving under the influence.”
Be polite: Take this encounter very seriously. Your attitude helps to determine your condition in the officer’s eyes. Be cooperative, but do not volunteer information that could be used against you in court (e.g.,”But officer, I only had four beers … “).
Remain silent: Don’t volunteer information other than your name and address. Remember you have a right to remain silent. You should never reply to questions about where you’ve been and whether (or how much) you have been drinking.
- Always know your limit. If reached, call a cab.
- Always keep copies of receipts and bar tabs.
- Always have your license, registration, and proof of insurance.
- Always pull over quickly and safely.
- Always be polite and respectful. Do not argue or resist.
- Always exercise your right to remain silent.
- Always answer only questions regarding name, address, and similar background.
- Always call your lawyer.
- Never exit the car unless directed to do so.
- Never lean against a car.
- Never answer questions about whether you were drinking or where you were.
- Never blow into a hand-held Alcosensor unit.
- Never agree to perform field sobriety exercises, such as following a light with your eyes, walking heel to toe, or standing on one leg. These exercises are voluntary.
At the Roadside
Typically, you’ll be asked to take one or more field sobriety tests to check your balance and dexterity. Some of the more common tests are described below.
- Horizontal Gaze Nystagmus – officer checks your eyes for Nystagmus – an involuntary jerking of your eyes.
- Walk and Turn Test – walk a straight line (heel, toe, heel, toe), taking 9 steps, turning and taking 9 steps back.
- One Leg Stand – stand on one leg with the other lifted 6 inches from the ground for 30 seconds.
You may also be asked to:
- Recite the alphabet
- Count a certain sequence of numbers
- Estimate the length of time
- Blow into an Alcosensor (This is a handheld instrument which gives a -/+ reading for alcohol and is not reliable enough to be entered into evidence. This is not considered the same as a state-administered breath test.)
Remember, These Tests are Voluntary. You Should Politely Refuse
Field sobriety tests, given to frightened drivers less than 5 feet off a busy highway with lights flashing and cars speeding by, could rattle the steadiest of nerves. If the officer has any doubts, you will be arrested for driving under the influence of alcohol or drugs and for other related traffic Infractions.
You will most likely be searched.
You will probably be handcuffed and put into the back of the patrol car for the ride to the police station or jail.
You will be given your Implied Consent warnings, which tell you that you must take the test that the officer designates, blood, breath or urine.
Ga. Code § 40-5-51 requires that you submit to a state-administered chemical test of your blood, breath, urine or other bodily substance for the purpose of determining alcohol or drug content. Under Ga. Code § 40-6-392, you have the right to an additional test of the foregoing substances made by personnel of your own choosing if you so desire. This additional test in no way satisfies your obligation to submit to the state-administered tests.
Later, after taking the officer’s selected test (blood, breath or urine) at the police station or hospital, you will be allowed to take another test of your own choosing – at your expense. The officer has the duty to transport you to a hospital/clinic for that test.
- Your car may be searched.
- Your car may be towed.
- Your driver’s license will be taken and held by the authorities.
- You will be issued one or more traffic citations.
- You will likely be issued a 1205 form.
The 30-Day Rule and the 1205 Form
It is important to understand the 30-Day Rule if you want to save your driver’s license. When cited for a DUI in Georgia, police officers can (and usually do) issue a 1205 form and take your license. This is an 8 ½ x 11 yellow form. If this happens, you have only 30 days from the date of your arrest to request a special hearing, called an Administrative License Suspension Hearing. This hearing is the only way to prevent your license from being suspended automatically for 1 year beginning 30 days from the date of your arrest.
About the Miranda Rights
You have a right to remain silent. You have a right to an attorney. Anything you say can and will be held against you in a court of law. These warnings that have become so familiar because of TV police series don’t apply in this situation—yet. You should not expect to have Miranda warnings read to you before taking sobriety tests at the roadside or station. In the case of a possible DUI charge, the Miranda warnings do not give you the right to call or see an attorney before you take the officer’s designated tests. Even without having been read the warnings, you should remember not to volunteer information about drug or alcohol consumption.
At the Police Station
While you may be in a somewhat unsteady mental and emotional state coping with fear, shock, anger, or panic—you must still remember that you are dealing with a criminal charge. You are more likely to be treated as a criminal than a customer, even though you can’t see yourself in that light.
What you need most—and are least likely to get—is sympathy. The staff—jailers and clerks—don’t particularly care about you, what you want, or why. Regardless of class or charm, male or female, you weren’t invited. They are there to process you, the drunk driver. And you had best take this matter seriously.
Once you arrive at the jail, you will probably sit and wait, and then fill out papers, and then sit and wait some more. Big town, small town, you can bet that jails up close will have a different atmosphere than you imagined from seeing them from the comfort of your TV room sofa. Don’t count on the police or the other inmates in there with you being pleasant.
The “Gray Box”
The Intoxilyzer is the computerized machine used to measure alcohol in the breath as a way to detect the amount of alcohol in the blood. You will be asked to blow into the mouthpiece. A printout (that looks like a cash register receipt) will show the machine’s judgment of your blood to alcohol ratio.
Laws regarding blood alcohol content have changed dramatically over the past century. The first DUI laws were passed in the early 1900s and simply stated that a driver could not operate a vehicle while intoxicated. Based on the work of the American Medical Association and the National Safety Council, a blood alcohol concentration (BAC) of 0.15 or higher was set as the first legal limit for intoxication in 1938.
In the 1980s, groups such as Mothers Against Drunk Driving (MADD, founded by Candy Lightner) and later Students Against Drunk Driving (SADD) led to stricter DUI laws and penalties. DUI laws became more widely enforced. The legal drinking age was raised to 21 years old in all 50 states.
Georgia Zero tolerance law
As a result of these and other lobbying groups, the legal BAC was lowered during the 1980s to 0.10 and more recently to 0.08. Many states have also passed Zero Tolerance laws making it illegal for people under the age of 21 to drive a vehicle with a BAC of 0.02.
Under current DUI laws in Georgia, if you agreed to take the state-administered test, results would likely lead to the following:
- 00 -.05 Presumed innocent and released
- 05 -.07 May be considered under the influence and charged with DUI-Less Safe
- 08+ Considered driving under the influence under Georgia’s pro se law
Georgia DUI Less Safe Law
Georgia has a “DUI Less Safe” law that allows drivers to be convicted even if their blood alcohol concentration is less than.08 grams. Another common reason for this charge is refusal to submit to a breath, blood, or urine test. According to O.C.G.A. 40-6-391(a)(1), a person shall not “drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that the person is less safe to drive.” “Less safe” means that the driver is less safe to drive as a result of consuming alcohol prior to or while driving as opposed to not having consumed any drugs or alcohol.
Problems With Interpreting the “Gray Box”
The basis for the current law is that approximately 50% of the population would be considered to have impaired judgment (and therefore be a less safe driver) at a 0.08 measure of blood/alcohol.
However, measurements by computers are just that: measures. Consider these factors:
- The “box” does not measure individual physiological differences
- The formula chosen for the computer Is a 2100:1 ratio of blood to breath.
- If your actual ratio Is less (e.g., 1600:1), the machine will give a higher reading than what would be true for you. You would be judged more impaired than you actually were.
- These ratios are not directly connected to body weight or age.
- You’ll be asked to give two samples that need to be within 0.02 of each other, a large margin of error.
Under ideal conditions, the machine should give a fair reading unless…
- Mechanical failures or radio signals could affect machine performance.
- Diabetics and people on high protein/low carbohydrate diets tend to have higher acetone levels, which can affect machine readings.
- A person with a fever might produce a higher reading.
- Denture wearers may show a higher reading because of the alcohol residue in their mouths.
- A good dose of mouth wash or breath freshener could also raise a score!
If You are Formally Charged
- Photographed (the proverbial “mugshot”)
- Allowed one phone call—when the jailer sees fit to accommodate you. No one likes paperwork and you’ve just caused more of it for the staff. Expect to wait… and wait… If you arrive at a shift change, expect a longer delay.
Before you are released, you’ll have to post bond and will normally be given a notice of your pending court date.
Arrests are a matter of public record. Your DUI charge could be published in the local paper or on the internet.
In order to be released, you must post a bond (a pledge to appear in court at the designated time). Use your one phone call for that purpose—your lawyer can neither post bond for you nor legally recommend a bail bonding company.
Several Types of Bond can Usually be Posted 3
- Cash Bond: Bail can be paid in cash. The entire amount of the cash bond (less jail fees) will be refunded after your case is completed in court.
- Commercial Bond: A bonding company can post bail for a non-refundable fee, usually 10-15% of the total bail amount.
- Property Bond: Real estate owned with sufficient equity may be posted as collateral for bail. All property owners must be present when the bond is written.
- Pretrial Services Agency Bond: Defendants demonstrating sufficient community ties (for example, duration of employment) and meeting other requirements may be allowed to make bond upon payment of a percentage of the total bond amount to the relevant Pretrial Services Agency.
- Recognizance Bond: A judge may allow a defendant to sign his or her own bond in lieu of posting bail.
If You Plead Guilty to a DUI
You can plead guilty to a DUI charge with or without a lawyer. The penalties vary depending on the number of DUI convictions you already have, but in most cases, you are looking at jail time, fines, community service, the loss of your license, the insurance companies charging you higher premiums, and a criminal conviction that will remain on your record.
After your second conviction, you may be required to install an ignition interlock device in your car – this is a device that requires you to blow into a mouthpiece, measuring your blood alcohol content, before the car is able to start.
How a DUI Lawyer can Help
Here are some considerations when choosing a good DUI defense attorney. An ideal DUI attorney will:
- Know DUI-related law
- Be familiar with sentencing patterns and recommendations for the county in which you are charged and for the judge and prosecuting attorney to which your case is assigned
- Understand procedures of different types of courts: Municipal Court, Recorders Court, Probate Court, State Court, or Superior Court
What to Look for When Selecting a Lawyer
- Competence / Suitability: Look for an attorney who understands your type of case. A specialty attorney (like corporate law or divorce)—even though a friend—could be less effective. It’s not reasonable to ask the attorney for references since that could violate confidentiality rights. Be a careful buyer. Your trust and confidence in the attorney is very important.
- Fees: Ask if the lawyer is willing to give you an initial consultation at no charge to enable you to carefully evaluate your choice. There may be a minimum fee. Ask how your fees will be billed. A retainer, a down payment toward the fee, is based on the estimated amount of time your case will take to handle. Fees may be set for your type of case (e.g., if you plead not guilty and take the case to trial). If you are to be billed on an hourly basis, be sure you ask when the clock “starts ticking.” In all arrangements, you will be responsible for fines and court costs.
- Accessibility: Make sure the attorney has time for you. Prominent attorneys with big fees and caseloads may not give you the time (and support) you feel you need. Be organized when you meet with your attorney. Don’t waste the attorney’s time.
- Good Communication Skills: The better your attorney helps you understand how your case will be handled and guides you into making critical choices along the way, the better you will feel. If during the interview, the attorney overwhelms you with legal talk and seems impatient with your questions, you may want to choose another.
While you cannot expect attorneys to teach you the law, you can expect them to explain carefully. False expectations can damage an attorney-client relationship quickly. There are probabilities in the legal business, not guarantees.
If you understand how your case is progressing, there will be less stress, and the less you will be pestering your attorney with repetitive questions.
Some Common-Sense Tips for You
- Understand alcohol’s influence on your body. Alcohol’s greatest impact occurs 20 minutes or more after the last drink—depending on an individual’s metabolic rate.
- Stop drinking at least one hour before you must drive in order to have a better assessment of your condition.
- Designate a driver at the beginning of the evening.
- Find someone else to drive you home.
- Call Uber or a cab. The comparative costly savings make it the best bargain you can find!
- Consider these safe drinking habits in order to avoid ever having to deal with a DUI arrest. You may also be saving your own—and someone else’s—life.