Law Office of Paul W. Hamilton

Driving Under The Influence (DUI)


Where We Go

We handle DUI cases in the following South Georgia Counties: Lowndes, Tift, Colquitt, Crisp, Ben Hill, Coffee, Turner, Thomas, Worth, Berrien, Cook, Brooks, Irwin, Lanier, Atkinson, Clinch, Ware, Echols.

We handle DUI cases in the following municipalities throughout South Georgia: Valdosta, Tifton, Moultrie, Thomasville, Douglas, Fitzgerald, Sylvester, Nashville, Adel, Remerton, Hahira, Lake Park, Omega, Sparks, Lenox, Cecil, Quitman, TyTy, Berlin, Doerun, Norman Park, Barwick, Boston, Coolidge, Meigs, Pavo, Morven, Ashburn, Sycamore, Ocilla, Douglas, Broxton, Nicholls, Ray City, Enigma, Alapaha, Lakeland, Pearson, Willacoochee, Homerville.

What We Do

If you have been cited for DUI, it’s in your best interest to contact an attorney. Even if your citation seems straightforward and conviction seems unavoidable, legal representation can help guarantee you get a fair and reasonable sentence. Paul has considerable expertise regarding DUI cases, including over 10 years of experience in preparing for and trying DUI cases. Paul has received the same certification training as law enforcement and knows the ins and outs of DUI law and can help you navigate through this difficult situation.

Results Matter

Testimonials from Previous DUI Clients

“I want to thank you again for all you have done for me and for fighting the good fight. I owe you one.” – Eddie O, client charged with DUI and Found Not Guilty by a jury in Berrien County

“We are still in shock. You are an angel. Thanks is not a strong enough work to express our appreciation.”  – Cheryl, mother of a client charged with DUI that was reduced to lesser offense

Paul W. Hamilton, Esq.

Get your questions answered - call me for your free, 20 min strategy session (229) 232-8056

DRIVING UNDER THE INFLUENCE IN GEORGIA: A PRIMER

By: Paul W. Hamilton, Law Office of Paul W. Hamilton, LLC

DUI TYPES IN GEORGIA

There are six ways that you can be charged with DUI in Georgia. O.C.G.A. § 40-6-391(a)(1-6).

  1. O.C.G.A. § 40-6-391(a)(1) Less Safe (Alcohol): The first way is by proof that you are under the influence of alcohol to the extent that it is less safe for you to drive.
  2. O.C.G.A. § 40-6-391(a)(2) Less Safe (Drugs): The second way that one can be charged with driving under the influence is by proof that one is under the influence of any drug to the extent that it is less safe for the person to drive.
  3. O.C.G.A. § 40-6-391(a)(3) Less Safe (Glue, Aerosol, and Toxic Vapors): The third way is by proof that one is under the influence of any glue, aerosol, or other types of vapor to the extent that it is less safe for one to drive.
  4. O.C.G.A. § 40-6-391(a)(4) Less Safe (Combo of two or more of the above): The fourth way is by showing proof that an individual is under the combined influence of any two or more of the above mentioned substances including alcohol, drugs or toxic vapors.
  5. O.C.G.A. § 40-6-391(a)(5) Per Se: The fifth way to be charged with driving under the influence is by proof showing that one’s blood alcohol concentration is 0.08 grams or more at any time within 3 hours after driving.
  6. O.C.G.A. § 40-6-391(a)(6) Drugs (any amount): The final way one can be charged with DUI in Georgia is by proof that an individual, while driving, has any amount of a controlled substance in the person’s blood or urine, or both. A court case, Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), specifically excludes marijuana from this particular statue. As a result, a DUI for marijuana must always be charged under O.C.G.A. § 40-6-391(a)(2) and the prosecutor must show impairment as a result of the marijuana.

It’s important to note that the DUI law in Georgia specifically states that even if you are prescribed a drug by your doctor, if it impairs your ability to drive you can still be charged and convicted of a DUI. In fact, there are many over-the-counter medications that might impair one’s ability to drive (i.e. Nyquil, Tylenol PM).

CRIMINAL PUNISHMENTS FOR DUI CONVICTION

Individuals that are convicted for a first or second conviction of DUI are guilty of a misdemeanor. A third conviction of DUI subjects an individual to a high and aggravated misdemeanor which essential increases the fine amount. A fourth or later conviction within a 10-year period is a felony. The look-back period for these convictions is 10-years from the date of each arrest.

First DUI: The minimum penalties for a first conviction of DUI are as follows:

  1. A fine of not less than $300.00 and not more than $1,000.00. It is also important to note that Georgia imposes a 50 percent surcharge on the fine amount on DUI and drug cases. For example, if your fine for a DUI conviction is set at $1,000.00, there is a 50 percent surcharge added to that $1,000.00 which essentially increases the fine to $1,500.00. With other court costs and surcharges fines on DUI and drug cases usually double.
  2. A period of jail time of at least 10 days to 12 months. In most cases the court will probate all of the sentence except for 24 hours to be served in jail. In fact, most courts allow the 8 to 10 hours that one typically spends in jail after a DUI arrest to suffice for the 24‑hour period.
  3. A minimum of 40 hours community service.
  4. Attendance at a DUI alcohol or drug use reduction program that must be completed within 120 days following conviction.
  5. A clinical evaluation and completion of a substance abuse treatment program if recommended by the evaluator.
  6. A mandatory period of probation of 12 months less any days during which the person is actually incarcerated.

Second DUI: The minimum penalties for a second conviction of DUI within a 10‑year period include the following:

  1. A fine of at least $600.00 and no more than $1,000.00.
  2. Jail time of not fewer than 90 days and no more than 12 months. Courts typically probate this entire sentence; however, an individual convicted of a second DUI is required to serve at least 72 hours in jail. In many cases the court allows the service of these hours to occur at a time that does not impact the offender’s work schedule such as on weekends.
  3. A minimum of 30 days of community service.
  4. Completion of a DUI alcohol or drug use risk reduction program that must be completed within 120 days after sentencing.
  5. A clinical evaluation and, if recommended as part of the evaluation, completion of a substance abuse treatment program.
  6. A mandatory period of probation of 12 months less any days during which the person is actually incarcerated.

Third DUI: The minimum penalties for a third conviction of DUI within a 10‑year period of time are as follows:

  1. A fine between $1,000.00 and $5,000.00.
  2. Mandatory jail sentence of at least 120 days and not more than 12 months. Georgia law requires that the offender must serve at least 15 days of jail time the remainder of which may be probated by the court.
  3. A minimum of 30 days of community service.
  4. Completion of DUI alcohol or drug risk reduction program that must be started within 120 days following conviction or within 90 days of release from custody if incarcerated.
  5. A clinical evaluation and, if recommended as part of the evaluation, completion of a substance abuse treatment program.
  6. A mandatory period of probation of 12 months less any days during which the person is actually incarcerated.

Fourth DUI: Note: For the purposes of calculating the 10‑year period, the time frame is measured from the dates of previous arrests for which convictions were obtained. In order to be charged with a felony DUI in Georgia, all four DUI offenses must have been committed on or after July 1, 2008 because that is when the law went into effect. Penalties for a fourth or subsequent conviction of DUI within a 10‑year period of time are as follows:

  1. A fine between $1,000.00 and $5,000.00.
  2. A period of imprisonment between 1 to 5 years. There is a mandatory 90‑day term of imprisonment imposed for a fourth or greater DUI in Georgia.
  3. A minimum 60 days of community service; however, if an individual is sentenced to serve 3 years of actual imprisonment, the judge may suspend the community service.
  4. Completion of DUI alcohol or drug use risk reduction program within 120 days of their conviction. If the defendant is incarcerated and such program can’t be completed within 120 days, it has to be completed within 90 days of release from jail.
  5. A clinical evaluation and, if recommended as part of the evaluation, completion of a substance abuse treatment program.
  6. A minimum period of probation of 5 years less any days which the person is actually imprisoned.
Paul W. Hamilton, Esq.

Get your questions answered - call me for your free, 20 min strategy session (229) 232-8056

LICENSE CONSEQUENCES RESULTING FROM CONVICTION OF DRIVING UNDER THE INFLUENCE IN GEORGIA

This section might be confusing because it notes that license consequences are based on a 5-year look back history instead of a 10-year look back history for criminal punishments. For whatever reason, the Georgia legislature modified the criminal punishment look back period to 10-years but left the license look back period to 5-years. So far, I’ve had several clients benefit from this inconsistency but I suspect it will change soon.

First DUI: License consequences for a first conviction of DUI in Georgia within the past 5 years include the following:

  1. A 120‑day period suspension.
  2. A limited driving permit is available so long as there is no conviction for mandatory suspendable offenses within the past 5 years. The fee for the limited driving permit is $25.00 and is renewable. It is valid for 1 year from the date of issuance.
  3. Reinstatement requirements for full driving privileges include submitting an original certificate of completion of a Department of Driver Services-approved DUI Alcohol or Drug Use Risk Reduction Program and a $210.00 reinstatement fee.

Second DUI: The license suspension penalties for a second conviction of driving under the influence within 5 years including the following:

  1. Suspension of your driver’s license for an 18‑month period beginning on the date of conviction.
  2. A limited driving permit is available; however, a 120‑day hard suspension is required before issuance of a limited driving permit. Eligibility for the limited driving permit is conditioned on the installation of an ignition interlock device. In addition, before receiving a limited driving permit, the driver must submit an original certification of completion of a Department of Driver Services approved Alcohol or Drug Use Risk Reduction Program, submit original proof of enrollment or an original certificate of completion of a Department of Behavioral Health and Development Disabilities approved Substance Abuse Treatment Program, if it’s required by the clinical evaluation, or permission from the court if the case is handled in a DUI court program, the driver must submit proof of installation of an ignition interlock device from a DDS approved vendor, and pay a $25.00 permit fee.

After 120 days of a hard suspension and 12 months of an ignition interlock limited permit, the driver may obtain a non‑interlock limited permit for the remaining suspension time.

In order to get the license completely reinstated, the driver must show the following:

a) Provide proof that an ignition interlock device was maintained in the vehicle for 12 months, without incident, or

b) An order from the sentencing court exempting the person from the requirement of an ignition interlock device because of undue financial hardship (please note that this requires a 12‑month hard suspension), and

c) The driver must show proof of completion of a Substance Abuse Treatment Program if one was required by the clinical evaluation.

d) Pay a $210.00 reinstatement fee.

Third DUI: License suspension for a third conviction for a DUI within 5 years include the following:

1. Suspension of driver’s license for 5 years.

2. After 2 years of the suspension, the driver can petition for a probationary license for habitual violators. There are onerous requirements for obtaining this probationary license and they are as follows:

a. Successful completion of a defensive driving course or a DUI Alcohol or Drug Use Risk Reduction Program approved and certified by the Department of Driver Services.

b. Driver must show that they have not been convicted of any violations relating to alcoholic beverages or controlled substances.

c. Driver must submit a sworn affidavit that they do not excessively use alcoholic beverages and do not illegally use controlled substances or marijuana.

d. The driver must submit proof of financial responsibility by completing Form SR22.

e. The driver must maintain an ignition interlock device on any vehicle that the person operates for 12 months.

f. The driver must show that refusal to issue a probationary driver’s license would cause extreme hardship to the driver. Extreme hardship is defined as inability to obtain transportation for going to his or her place of employment or performing the normal duties of his or her occupation, receiving scheduled medical care and obtaining prescription drugs, attending college or school at which he or she is regularly enrolled as a student, attending regularly-scheduled sessions or meetings of support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, or attending under court order any driver education or improvement school or alcohol or drug treatment program or course approved by the court which entered the judgment of conviction resulting revocation of his or her driver’s license or by DDS.

g. The driver must pay a fee of $210.00 in order to be issued a probationary driver’s license.

h. DDS may place conditions on the probationary driver’s license that it deems necessary. Examples of conditions include the following: specific places between which the licensee may be allowed to operate a motor vehicle, routes to be followed by the driver, the times of travel that are allowed, the specific vehicles which the driver may operate and any other restrictions that DDS may require.

3. Reinstatement of complete driving privileges cannot take place until at least 5 years have elapsed from the beginning of the suspension date for the third DUI.

Fourth DUI: The license consequences for a fourth DUI are the same as those for a third DUI.

Paul W. Hamilton, Esq.

Get your questions answered - call me for your free, 20 min strategy session (229) 232-8056

Officer DUI Arrest Decision Training

Before reading the following, I want to explain why it is important to a DUI defense attorney. Reports in DUI cases are typically one to two pages long and do not contain much information. A typical report might read, “I observed the offender with red, watery eyes and an odor of alcohol coming from his person. The offender had difficulty balancing when walking to the rear of his vehicle.” What’s powerful about the information below is it lists quite a bit of information the officer is trained to look for, but in most cases, doesn’t include in his or her report. So while this officer in this example might have noticed red eyes, odor of alcohol and balance problems, I can point out about 20 other things the officer didn’t observe or at least didn’t include in his or her report. The line of questioning where I am able to point out all the things the driver did well instead of just focusing on what the driver did bad works well in front of judges and juries.

Law enforcement officers are taught to base their DUI arrest decision on information gathered in three distinct phases. The first phase is known as vehicle in motion. The second phase is through personal conduct and phase three includes pre‑arrest screening. Each of these phases has two subsections that officers use to make their arrest decision; this is explored in detail below.

Phase I of Arrest Decision: Vehicle In Motion (Observations of Vehicle & Stopping of Vehicle)

Phase one that officers use to assist in making their arrest decision is known as vehicle in motion. Essentially, the officers are trained to make initial observations of a vehicle, followed by observations of the vehicle during the stopping sequence.

1. Vehicle In Motion Observations

a. The things that law enforcement officers are looking for during their initial observation of the vehicle include the following: Difficulty in maintaining proper lane position (some examples include weaving, weaving across lane lines, drifting, straddling a lane line, swerving, almost striking an object or vehicle and turning with a wide radius). Speed and braking problems (some examples include stopping problems such as stopping too far, too short or too jerky, unnecessary acceleration or deceleration, varying speed and 10 miles or more under the speed limit). Vigilance problems (some examples include driving without headlights at night, failure to signal or signal inconsistent with action, driving in opposing lanes or the wrong way on a one‑way street, slow response to traffic signals, slow or failure to respond to officer signals, and stopping in a lane for no apparent reason). Judgment problems (some examples include following too closely, improper or unsafe lane change, illegal or improper turn, driving on other than the designated roadway, stopping inappropriately in response to an officer, inappropriate or unusual behavior such as throwing objects or arguing, or appearing to be impaired).

2. Stopping of Vehicle

a. Observation of the stopping vehicle is the second component of phase one. Some of the things that officers look for during the stop of the vehicle include the following: fleeing, no response, slow response, abrupt weaving, sudden stop or striking a curb or other object and any other violations.

Paul W. Hamilton, Esq.

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Phase II: Personal Contact with Driver

The second phase that the officer considers in determining whether to arrest an individual for DUI is known as personal contact. Personal contact includes the officer’s interview and observation of the driver, as well as observation of the driver exiting the vehicle.

1. Initial Interview

a. In the initial interview and observation of the driver, the officer is examining several things. They are looking for bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers, drugs or drug paraphernalia, bruises, bumps or scratches and other unusual actions. Further, the officer is listening for slurred speech, admission of drinking from the driver, inconsistent responses to questions, unusual statements, abusive language and anything else that might suggest that the individual is impaired. Additionally, the officer is also using their sense of smell for alcoholic beverages, marijuana, cover-up odors such as perfume or mints and any other unusual odors.

b. Law enforcement officers are taught to use certain questioning techniques when talking and interviewing individuals suspected of driving under the influence. Typically, the questions are asked in a way that requires the driver to concentrate on two or more things at the same time. Officers employ these techniques by asking for two things simultaneously, asking interrupting or distracting questions and asking unusual questions. It’s fairly typical for officers to ask the driver to produce their driver’s license and their vehicle registration at the same time, and this is an example of a divided attention test. The officers are looking to see if the individual fails to produce both documents, produces the wrong documents, fails to see the license registration or both while searching for them, fumbles or drops their wallet, purse, license or registration or is unable to retrieve documents using their fingertips. Other questions the officers may ask to divide the driver’s attention include asking the driver what day it is and where they are coming from. Officers are taught to be alert for drivers who ignore the question and concentrate only on the license or registration search, forgets to resume the search after answering the question, and/or supplies a grossly incorrect answer to the question. As far as unusual questions, the officer may ask what is your middle name or any other off the wall question.

2. Exiting of the Vehicle

a. When an officer asks a potentially impaired driver to exit the vehicle, they are also using this as an opportunity to observe for possible clues of impairment. They are looking for the following things: an angry or unusual reaction, whether the driver can follow instructions, whether the driver can open the door to the vehicle, whether the driver leaves the car in gear or, in some cases, climbs out of the car, whether the driver leans against the car, keeps their hand on the car, or anything else.

Phase III: Pre-Arrest Screening (Field Sobriety Tests & Portable Breath Test)

The final phase is known as pre‑arrest screening. It is during the pre‑arrest screening that the officer employs field sobriety testing and a preliminary breath test. Officers typically administer three “scientifically validated” standardized field sobriety tests. We will explore further the details of the three tests below. The first test administered is known as the horizontal gaze nystagmus test, commonly known as HGN. The second test is known as the walk and turn, and the third test is known as the one leg stand. These tests are designed to divide the driver’s attention and require them to concentrate on more than one thing at a time. They are mental and physical tasks, which generally require the driver to employ information processing, short-term memory, judgment and decision‑making, balance, steady and sure reactions, clear vision, small muscle control and coordination of limbs. Officer training suggests that the average person should be able to complete many of these field sobriety tests when they’re sober, but the reality is that many folks who are absolutely sober cannot complete these tasks. The second component of phase three is the officer administering a roadside portable breath test, commonly referred to as a PBT. PBTs are screening devices that take a breath sample and detect the presence of alcohol. They are used at the roadside by officers to help them make an arrest decision. Current training directs officers to administer the PBT as the very last step of their arrest decision process; however, many use it as their first step, which is not consistent with officer.

STANDARDIZED FIELD SOBRIETY TESTS

There are three so-called scientifically validated standardized field sobriety tests, which are used by law enforcement to determine whether a driver is impaired. The standard tests include the Horizontal Gaze Nystagmus, typically referred to as HGN, the walk and turn, and the one‑leg stand. There have been a number of studies into these tests and these tests have been analyzed by the National Highway Traffic Safety Administration, known as NHTSA. NHTSA has determined that these tests can provide some accuracy as to whether an individual is impaired or not. What’s important to keep in mind is whether these tests were conducted in a proper manner. Failure to conduct the test in the correct manner puts the result of the test in jeopardy. Any DUI attorney worth their salt should know these tests and be able to observe the test to determine whether they were conducted properly. Below we will go into each of these tests in detail showing the correct way they should be administered.

Paul W. Hamilton, Esq.

Get your questions answered - call me for your free, 20 min strategy session (229) 232-8056

Horizontal Gaze Nystagmus, aka HGN, follow the finger/pen test

Horizontal Gaze Nystagmus is defined as the involuntary jerking of the eyes which occur as the eyes gaze from side to side. It is involuntary because the person is usually unaware that the eyes are jerking and the individual is powerless to stop it or control it. One of the reasons this test is employed is that alcohol and other drugs causes horizontal gaze nystagmus. Officers are trained that observation of horizontal haze nystagmus in a driver is the first and most accurate of the three standard field sobriety tests.

The Three Clues

The three clues that officers look for in conducting the HGN test are:

  1. Lack of smooth pursuit,
  2. Distinct and sustained nystagmus at maximum deviation, and
  3. Onset of Nystagmus prior to 45 degrees.

There is a step-by-step list of administrative procedures that the officer must use in employing these tests. Current Georgia case law does not require the officer to follow this absolutely perfectly, but DUI lawyers are allowed to argue in court that an officer did not administer the test properly, which compromises the result.

1. Step 1: The first thing that officers are taught to check for is eyeglasses. If the driver is wearing eyeglasses, they are instructed them to remove them. Officers are taught that drivers do not have to see the stimulus with perfect clarity.

2. Step 2: The second step includes verbal instructions that are given to the driver. The verbal instructions include telling the driver to put their feet together with their hands by their side, keep their head still, look at the stimulus, follow movement of the stimulus with the eyes only and keep looking at the stimulus until they are told that the test is over.

3. Step 3: The third step is for the officer to position the stimulus. The stimulus that I’m referring to is generally the tip of the officer’s finger, the eraser on a pencil or the end of a pen or anything that the individual driver can focus on in front of them. Officers are instructed to position the stimulus approximately 12 to 15 inches in front of the driver’s nose slightly above eye level to commence the test. This is usually one of the first things I look for in the video, as in many cases officers are positioning the stimulus above the individual’s head which is not in compliance with their training.

4. Step 4: The fourth step is for the officer to look and observe the pupil size of the driver’s eyes to see if there is any resting nystagmus.

5. Step 5: The fifth step is to observe for what’s known as equal tracking. The officer is taught to move the stimulus rapidly from the center to the far right to the far left and back to the center.

6. Step 6: The sixth step is for the officer to look for lack of smooth pursuit. In this step, the officer is taught to check the left eye for the lack of smooth pursuit clue. If the eye is observed to have jerked while moving, that is considered a clue. Officers are then taught to check the right eye for lack of smooth pursuit clue and to compare.

7. Step 7: The seventh step in administering the HGN test is to check the right eye and left eye for what’s known as distinct and sustained nystagmus at maximum deviation. If jerkiness is distinct and sustained, that is one clue.

8. Step 8: The eighth step is to observe to see if there is onset of nystagmus prior to 45 degrees. First, the officer is taught to check the left eye for the onset of nystagmus prior to the 45 degrees. If the jerking begins prior to the 45 degrees, that is one clue. The officer’s then taught to check the right eye for onset of nystagmus prior to 45 degrees and to compare.

9. Step 9: The next to last step requires the officer to value up the total number of clues. The maximum number of clues for each possible eye is three and the total maximum number of clues possible for both eyes is six.

10. Step 10: The final step requires the officer to check for what’s known as vertical nystagmus. In vertical Nystagmus, the officer is looking for jerking as the eyes move up and are held for a maximum of 4 seconds at maximum elevation. Essentially, instead of moving the stimulus from side to side, the officer moves the stimulus up and down, observing the eyes for jerkiness.

Officers are trained that 4 or more clues on the HGN test indicates a blood alcohol concentration of 0.08 grams and is 88 percent accurate.

THE WALK AND TURN

The walk and turn is a divided attention test, as well as a mental task and physical task. There are two phases of the walk and turn test. The first is the instructions stage; the second is the walking stage. Officers are taught when administering this test, to implement certain safety precautions. They are taught to keep the subject on the left side during demonstrations; to never turn their back on the subject, to be aware of their surrounds, and that left-handed officers should demonstrate tests at a distance more than arm’s length.

The administrative procedures for an instruction stage include the following.

Paul W. Hamilton, Esq.

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Verbal instructions and Demonstration

Officers are taught to tell the individual to assume a heel-to-toe stance, with their arms down at their sides and not to start until they’re told. At this point, the officer is taught to explain the test requirements by giving instructions, which are also accompanied by demonstrations. The officer is taught to tell the driver, “When I tell you start, take nine heel-to-toe steps on the line, turn, and take nine heel-to-toe steps down the line.” The next instruction that the officer gives is, “When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this.” The next instruction the officer gives is, “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.” The officer then advises, “Once you start walking, don’t stop until you’ve completed the test. Do you understand the instructions?”

One of the first things that officers are looking for in their observation is whether the driver can keep their balance while listening to the instruction. Officers are also looking to see whether the driver is able to maintain the heel–to-toe position throughout the instructions. Other clues that the officer is looking for is whether the individual starts too soon, stops while walking or does not touch heel-to-toe. Additionally, officers are looking for clues such as whether the individual steps off the line, uses their arms to balance, makes an improper turn, or counts an incorrect number of steps. Officers are taught that two or more clues in the walk and turn test indicate that an individual has a blood alcohol concentration at or above a 0.08 and studies indicate that this test is 79 percent accurate, but keep in mind, this accuracy is often compromised by improper demonstration, instruction or interpretation of the test itself.

ONE-LEG STAND

The one-leg stand is the third of the three standardized field sobriety tests. It is composed of two stages; the instruction stage and balancing and counting stage. Officers are taught that conducting a one-leg stand requires a reasonably dry, hard, level and non-slippery surface. I’ve observed this test administered hundreds of times on dusty dirt roads, on hot pavement where individuals have to remove their shoes so they’re able to balance better, and on the shoulder of the interstate that is full of gravel and other road debris. These conditions are not exactly in line with what the officer’s training suggests and this is important to note when observing this test being conducted. Interestingly enough, there’ve also been studies that have stated that this particular test should not be conducted on individuals that are 65 years of age or older or with people with back, leg or inner ear problems or people who are overweight by 50 or more pounds. It’s important to note whether these conditions are present in the driver who has taken the test. I’ve had cases where this test result was discredited because my client fit one of these categories.

The instruction stage of the one-leg stand requires the officer to tell the driver to stand with their feet together and their arms down by their sides, and not to start or perform the test until told to do so. Then the officer is required to explain the test requirements and demonstrate the test. Basically, the officer states that when he tells the individual to start, they are to raise either leg with the foot approximately 6 inches off the ground. The driver is instructed to keep both legs straight and their arms at their side. Then, the driver is told to hold that position and count out loud in the following manner, “one thousand one, one thousand two, one thousand three” until told to stop. The driver is also told to keep their arms by their sides at all times and keep watching the raised foot. After asking the driver if they understand, the officer instructs the individual to perform the test. The officer is instructed to track time for 30 seconds and that the test should be stopped after 30 seconds.

The clues that the officer is looking for in the one-leg stand test include the following:

a) Whether the driver sways while balancing,
b) Uses their arms to balance,
c) Starts hopping, and
d) Whether the driver puts their foot down.

Officers are taught that two or more clues on this test indicate a blood alcohol concentration at or above 0.08. Officers are taught that in this test, the driver’s attention is divided among such simple tasks as balancing, listening and counting aloud, and that these combinations can be very difficult to accomplish if someone is under the influence of alcohol.

Paul W. Hamilton, Esq.

Get your questions answered - call me for your free, 20 min strategy session (229) 232-8056

ADMINISTRATIVE LICENSE-SUSPENSION HEARINGS

Georgia administrative license-suspension hearings are handled by the Office of State Administrative Hearings. Usually, these administrative hearings are held before the criminal case on the DUI. When I first meet with clients who have been charged with DUI, they are often surprised to learn that there are two ways their license can be suspended in Georgia. First, their license can be suspended administratively because having a license to drive in Georgia is considered a privilege, not a right. The other way that one’s license can be suspended is by an actual conviction for driving under the influence. This section deals strictly with the administrative suspension of one’s license. It’s important to note that not all DUI cases result in an administrative license hearing. It is generally left up to department policy or the officer’s individual discretion whether to initiate an administrative license suspension. This is done by the officer completing what’s known as a DS1205; it’s a sworn affidavit that the officer submits to the state informing the state of the driver’s arrest for driving under the influence. A copy of the DS1205 is usually given to the driver at the same time as the citation for DUI. If a driver receives a DS1205, they MUST submit a hearing request to the Department of Driver Services within 10 business days requesting such hearing. Failure to request a hearing will result in an automatic suspension of the driver’s license 30 days after the arrest for the DUI. In addition, a hearing fee of $150.00 must also be included with that written request. The written request for a hearing should include the following information:

  1. The name, address, driver’s license number and date of birth of the licensee,
  2. The suspension type and effective date thereof,
  3. The names and addresses of all interested parties,
  4. A clear and concise statement of the facts upon which the contested case arises,
  5. The legal authority under which the appeal is filed, including all Code sections,
  6. A prayer setting forth the relief sought, and
  7. If the party filing the request is represented by counsel, the name and address of the counsel will also be needed. Appeals submitted by attorney should be signed by the attorney.

After a request for hearing is submitted, it usually takes anywhere from 30 to 60 days for a hearing to be held. The hearing is conducted by an administrative law judge. Interestingly, many of these hearings used to be heard by former state troopers and members of the Department of Driver Services – talk about the fox guarding the henhouse.

The scope of an administrative license-suspension hearing for driving under the influence is limited to the following matters:

  1. Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle, while under the influence of alcohol or a controlled substance, and was lawfully placed under arrest for violating Georgia’s DUI law, or
  2. Whether the person was involved in a motor vehicle accident or collision resulting in a serious injury or fatality, and
  3. Whether at the time of the request for the test or tests, the officer informed the person of the person’s implied consent rights and the consequence of submitting or refusing to submit to such test, and
  4. Whether the person refused the test or whether a test or tests were administered, and the results indicated an alcohol concentration of 0.08 grams or more; for a person under the age of 21 an alcohol concentration of 0.02 grams or more, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more, the final item that is contained in the scope of the hearing is whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences, of the Georgia Bureau of Investigation, on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the test was operated with all its electronic and operating components, prescribed by its manufacturer, properly attached and in good working order, which shall be required.
Paul W. Hamilton, Esq.

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As noted above, the only way for an administrative license-suspension hearing to be initiated is by the officer’s completion of the DS1205. If the officer did not submit a DS1205 form, then there will be no administrative license suspension; that is one less hurdle that someone who has been cited for driving under the influence in Georgia has to get over. It has been my experience that a DS912 is submitted in approximately 70 percent of DUI cases I handle.

After the ALS hearing is conducted, the judge usually issues a final decision within 2 to 3 weeks. Since the threshold for overcoming an ALS is so high, many suspensions are granted as a result of the hearing.

ALS suspensions are governed by a 5‑year look-back period instead of a 10‑year look‑back period. I do not believe it will be long before the Georgia Legislature also adjusts the administrative look-back time to 10 years also.

First Administrative License Suspension for DUI: The consequences for a first suspension that is done administratively are as follows:

  1. Suspension for a minimum 30‑day period.
  2. A limited driving permit is available and requires payment of $25.00. It is valid for 30 days from the date that it is issued and is renewable every 30 days for $5.00. A limited driving permit is available only in person at any Georgia Department of Driver Services location.
  3. In order to get your complete license reinstated the driver will have to submit an original certificate of completion of a DDS‑approved DUI alcohol or drug use reduction program as well as pay a $210.00 reinstatement fee.

Second Administrative License Suspension for DUI: The consequences for a second administrative suspension within 5 years are as follows:

  1. Suspension of driving privileges for a minimum 18‑month period beginning on the effective date.
  2. There is no limited permit available for a second suspension.
  3. Reinstatement requirements require submission of an original certificate of completion of a DDS‑approved DUI alcohol or drug-use risk reduction program and payment of a $210.00 reinstatement fee.

Third or Subsequent Administrative License Suspension for DUI: The license consequences for a third or subsequent administrative suspension within 5 years are as follows:

  1. Suspension of the driver’s license for a 5‑year period beginning on the effective date.
  2. There is no limited driving permit available; however, the licensee may make application for a probationary license after a minimum suspension period of 2 years.
  3. Reinstatement requires for full licensing privileges require submission of an original certificate of completion of a DDS‑approved DUI alcohol or drug-use risk reduction program and payment of a $210.00 reinstatement fee.

IMPLIED CONSENT REFUSAL: What happens if I refuse the test?

If an officer suspects a driver is under the influence and requests the driver to submit to a breath, blood or urine test and the driver refuses to comply, his or her license can be suspended for a 1‑year period. This is a hard 1‑year suspension without any temporary or limited driving permit. There is no requirement to reinstate one’s license as a result of a refusal. The suspension essentially ends after the 1‑year period passes and no reinstatement fee is required.

Paul W. Hamilton, Esq.

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LIMITED DRIVING LICENSE PERMITS

Limited permits that are issued are restricted to the following uses:

  1. Going to the holder’s place of employment, or performing the normal duties of his or her occupation,
  2. Receiving scheduled medical care or obtaining prescription drugs,
  3. Attending a college or school at which he or she is regularly enrolled as a student,
  4. Attending regularly scheduled sessions or meetings of treatment support organizations for persons who have addiction or abuse problems related to alcohol or other drugs,
  5. Attending under court order any driver education or improvement school or alcohol or drug program or course approved by the court which entered the judgment of conviction resulting in suspension of his or her driver’s license,
  6. Attending court, reporting to a probation office or officer, or performing community service, or
  7. Transporting an immediate family member who does not hold a valid driver’s license to work, medical care or for prescriptions, or for school.

I have seen situations where individuals that were driving on a limited permit were cited for driving in violation of that permit and losing those privileges. It is important for any holder of a limited driving permit to adhere closely to these limitations to avoid further legal trouble.

It is also important to note that if an individual is driving with a limited ignition-interlock driving permit, the uses of that permit are even stricter than the limited permit above. Specifically, ignition-interlock limited driving permits are limited to the following:

  1. Going to the holder’s place of employment, or performing the normal duties of his or her occupation,
  2. Attending a college or school at which he or she is regularly enrolled as a student,
  3. Attending regularly scheduled sessions or meetings of treatment support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, and
  4. Going for monthly monitoring visits with the permit holder’s ignition-interlock device service provider.

Preparation of the above material relied heavily, and in some cases; verbatim from the following sources: Georgia laws on DUI, Georgia Department of Driver Services Regulations, 2015 Georgia Traffic Court Reference Manual.

Paul W. Hamilton, Esq.

Get your questions answered - call me for your free, 20 min strategy session (229) 232-8056