Before conducting a HGN or horizontal gaze nystagmus test, the officer is required to evaluate your eyes to look for resting nystagmus, equal pupil size and equal tracking or movement of the eyeballs together. Without excluding these elements it is not scientifically possible to rule out an existing medical condition or injury that will inhibit accurate administration of the HGN testing.
To give the test, the police officer will hold a small object (usually a pen or a light) approximately 12 inches from your nose and slightly above eye level. The LEO will slowly move it from one side to the other. You will follow the object or stimulus with your eyes while holding your head as still as possible.
The law officer will look for three different clues in each eye,total of six clues during the test. One clue is a lack of smooth pursuit—where the eyes are jerking or bouncing while tracking the stimulus. If lack of smooth pursuit is detected, the officer will check for nystagmus the begins before the eyes reach a 45 degree angle. If, and only if, the prior clues are noted, the LEO will look for the last set of clues which is known as the onset of nystagmus prior to maximum deviation. This clue is only counted if the eyes begin jerking and continue to jerk for four seconds before the eye is looking all of the way to the side.
If the police officer believes he sees four or more clues, he has probable cause to make an arrest for DUI.
Horizontal Gaze Nystagmus testing can and should be reviewed and challenged in many cases. Even when HGN is administered in the most ideal of scenarios, the horizontal gaze nystagmus is only 77% accurate in determining if an individual is impaired. In the past 25 years of DUI practice Mo Wiltshire has seen many many cases where the HGN testing was done poorly and unreliably and we frequently raise successful challenges to the application of this testing. HGN is difficult to conduct accurately on the side of the road, at night, with traffic whizzing by and otherwise under the conditions that are present in most DUI cases.
The walk and turn is considered one of the three standardized test, which means that the policeman who administers it is required to adhere to an follow the established guidelines to ensure an accurate result. The test is divided into two phases: the Instruction phase and the Performance phase.
As the test begins in the instruction stage, the police officer will direct you to stand with your legs together and to keep your arms straight down by your sides while he explains and demonstrates (correctly) how the test should be performed. When the instructions have been delivered to you, the officer will ask if you understood the instructions.
To perform the test, you will be directed take nine (and only nine) heel-to-toe steps forward on a line that may be a real painted line on a street or parking lot or it may be an imaginary line, then you must pivot as directed, and take nine heel-to-toe steps back. Always, while performing the WNT test, you must keep your arms straight down by your sides and count your steps out loud.
While you are walking, the officer will look for a number of variables described as and considered "clues" that are deemed to indicate a blood alcohol concentration (BAC) level of .10% or higher. These varies are supposed to include the following,
NHTSA has publicized that the walk and turn test has only roughly a 66% accuracy rate—and that is when the testing is administered strictly according to NHTSA guidelines. If you are charged with DUI based on the results of taking the field sobriety tests like the WNT your lawyer will need to obtain any video of the arrest and review the testing procedure closely. Many times out in the field the tests are conducted incorrectly. It may well be possible to significantly challenge the accuracy of the results and the officer's opinion of the results in court. We win a lot of cases based upon incorrectly conducted SFST testing. The Walk and Turn is often administered without proper procedure being followed which leads to compromised results that cannot be relied upon.
https://www.avvo.com/legal-guides/ugc/dui-investigation-roadside-testing-the-walk-and-turn-test
To reduce the likelihood of mistakes and in an effort to increase the reliability of the testing, police officers are required to follow to the National Highway Traffic Safety Administration (NHTSA) guidelines when conducting the one leg stand test. The OLS test consists of two stages, the instruction stage or phase and the performance stage.
During the instruction phase, the investigating police officer will provide verbal instructions on how the driver is to perform the test as well as a provide a brief demonstration. Once this phase is complete, the police officer will ask if the driver understands the instructions before proceeding to the next phase.
During the performance stage, the driver is asked to raise one leg with his foot parallel to the ground, keep his toe pointed and the selected foot (either left or right whichever the driver chooses) approximately six inches off of the ground. With the driver's hands down at his side he will then count in thousands (one-one thousand, two-one thousand, and so on) while keeping his foot raised, toes pointed and while looking at his foot until directed to stop by the officer. The OLS test is designed to last no longer than 30 seconds.
While performing the driving is being subjected to this OLS test, the police officer will look for a possible six clues. These clues are identified as swaying, using arms for balance, hopping or putting the foot down. If the officer observes two or more clues, the driver will fail the test and can be deemed to be DUI and then arrested for drunk driving.
The one leg stand test is not appropriate for many drivers based on physical condition. Some drivers should simply never be asked to perform this test. Persons over 65 years of age, or more than 50 pounds overweight or those who have physical limitations such as ear, leg or back problems. Ladies who are wearing heels higher than two inches should be allowed to remove their shoes before taking the test...of course this leaves them stuck performing the test barefoot which is hardly ideal.
The OLS test should only be given on level ground and it should be conducted in an area of safety where the driver can concentrate on performing the test not dodging oncoming traffic.
When administered on its own, even when conducted correctly in accordance with NTHSA regulations the one-leg stand has only about a 65% accuracy rate when used as an attempt to determining intoxication. Any arrest that relies upon the administration of the one leg stand test needs to be reviewed carefully by a DUI defense attorney who understands what to look for and how to recognize errors. Many times these tests are compromised and not compelling evidence of impairment because they are administered incorrectly.
https://www.avvo.com/legal-guides/ugc/dui-investigation-roadside-testing-the-one-leg-stand-test
Ordinary Licensed Driver:
If you take the State Breath Test pursuant to an Implied Consent Request from a Georgia Law Enforcement Officer and the result is greater than .08 you can be charged with DUI per se under OCGA 40-6-391(a)(5). If you drive a motor vehicle with an alcohol concentration of 0.08 grams or more at any time within three hours after driving, during driving, or after the driving ended you are over the limit and DUI by law or per se DUI.
Commercial Drivers License:
If you are operating a commercial vehicle the limits are lower. The amount of alcohol present for commercial drivers in the blood, breath or urine may not exceed 0.04. If your BAC is over .04 within three hours after driving, during driving, or after the driving ended you are over the limit and DUI by law or per se DUI.
Drivers who are under 21:
Minors for alcohol purposes are defined as people under 21 years of age. Minors may not have more than 0.02 grams of alcohol in their blood, breath, or urine under Georgia’s DUI law. If you are under age 21 and your BAC is over .02 within three hours after driving, during driving, or after the driving ended you are over the limit and DUI by law or per se DUI.
A driver commits the offense of DUI less safe alcohol when that person drives or is in actual physical control of any moving vehicle drive while that driver is under the influence of alcohol to the extent it was less safe for that person to drive. If the driver consumed enough alcohol so that it renders him less safe than it would have been for him to without drinking the alcohol he consumed he has committed a less safe DUI. OCGA 40-6-391(a)(1).
Please understand that there is no requirement under Georgia Law that the driver actually commit an unsafe act of driving; rather, the violation of OCGA 40-6-391 occurs when a person drives after having consumed sufficient alcohol so that it was less safe for that person to drive.
Driving under the influence of illegal drugs to the extent that it is less safe for the person to drive is another way of committing the offense of DUI in Georgia. OCGA 40-6-391(a)(2). If a person consumes illegal drugs to the degree that he is Basically, the “incapable of driving safely” standard is the same for all practical purposes to the “less safe to drive” standard under the alcohol portion of the DUI law.
Even if the drugs are prescription drugs you can be charged with DUI. The code section is OCGA 40-6-391(b). The law holds that a person commits DUI less safe drugs when that person is “rendered incapable of driving safely as a result of using a drug other than alcohol, which such person is legally entitled to use.” It simply does not matter if there is a legal prescription for the drug the driver took that made him less safe to drive. That's right having a lawful prescription for medication and taking it as directed by your doctor will not grant you immunity from arrest and prosecution for DUI.
A driver can face a DUI charge in Georgia for the offense of less safe DUI while under the Combined Influence of Two or More Specific Drugs. If your driving is less safe as a result of you being under the influence of alcohol combined with any other drug, or multiple drugs then the person has committed DUI under OCGA 40-6-391(a)(4), which is the portion of the Georgia DUI statute that addresses combined influence less safe DUI.
OCGA 40-6-391(a)(3) deals with the rare instance in which DUI enforcement is targeted against someone suspected of inhaling vapors or fumes or sniffing glue. Huffing DUI charges are rare but the statute is on the books that makes it a specially designated DUI offense.
Unlike alcohol, THC (metabolites of marijuana) can remain in a person’s bloodstream for many days and weeks. There is no way to determine when marijuana was last used. Georgia uses its Less Safe DUI laws to prosecute driving under the influence of marijuana to the extent that the ingestion or smoking of marijuana renders a driver less safe to drive.
Under Georgia’s Less Safe DUI scheme, your ability to drive must be impaired to such an extent that you pose a risk to the safety of others. Your ability to drive must be shown to be less safe than if would have been without your use of marijuana. In addition to meeting the less safe requirement, law enforcement will need either your admission to using marijuana and/or usually also your blood test. The arresting officer will very likely want to draw your blood to have it tested because the State must find the psychoactive component of THC (11-hydroxy-THC) in your system.
The non-psychoactive component of Marijuana 11-COOH-THC will be present in greater levels and work a longer time that the other metabolites of THC. Many times your DUI defense lawyer will need to be prepared to educate the government's lawyers about these facts. There is no such thing as under the influence of 11-COOH -THC marijuana and DUI cases are won and lost on how effective your lawyer is in understanding and communicating the actual facts to the court and the prosecutor.
There are only slight differences in Georgia between a conviction for DUI less safe and DUI per se but those differences may be very important to your individual situation. Call Mo Wiltshire to discuss your circumstances.
In Georgia we do not have a category of offense known as DWI we do not have a "wet reckless" category of offense either. We have driving under the influence DUI and boating under the influence BUI. Sometimes you will hear terms bandied about by persons who are simply uninformed and these terms may be confused for actual legal offenses in Georgia.
A Georgia DUI conviction never goes away. Georgia has a 10 year "look back" time period for enhanced punishment purposes but there is no process to seal or restrict a DUI conviction. Once you are convicted of DUI in Georgia it never goes away. There is no expungement process available.
A DUI conviction in Georgia will show up on a criminal background check forever. Under current law, unless the Governor of the President issue you a pardon a DUI conviction will remain on your background checks and criminal records with the GBI through the Georgia Crime Information Center or the FBI through the National Crime Information Center indefinitely.
Yes it will. Generally, a Georgia DUI conviction will be harmful to your insurance rates and coverage available to you for at least three years. There is a wide disparity in how different insurance companies treat DUI convictions but you can expect higher rates and less coverage for roughly 3-7 years. Some carriers and companies will drop your coverage entirely if you are convicted of DUI.
Generally, a Commercial vehicle DUI conviction will disqualify you from having a Commercial Driver's License and even if and when you can acquire one you are very unlikely to find a trucking company or motor carrier interested in hiring you.
No. Even if the officer seized your license you can appeal the suspension the new law allows you 30 days from the date of arrest to challenge the Administrative License Suspension or ALS. If you file the appeal in time you can continue to drive while you fight the administrative suspension.
In Georgia, it is difficult to get prosecutors to drop DUI charges but we do it all the time. You will definitely need to hire the right lawyer. There are many reasons why you could be arrested on the side of the road but once the case is investigated by your lawyer it becomes clear that the case needs to be dropped and the prosecutors can be shown this reality.
Obviously, having a great lawyer work for you is going to cost money. Having a great lawyer do anything is not cheap. You can find lawyers who will take your case for much less that what a great DUI lawyer will charge you but as with most things in life -- you are going to get what you pay for and there is no such thing as a free lunch. You can expect to pay anywhere from $3.5k to $10k for a really successful, winning DUI lawyer. The fee depends upon your prior record and the location and complexity of the case. We offer split fee arrangements at my firm Prior, Daniel & Wiltshire because we find it makes truly competent review and assistance more affordable to more people. Contact us for details. Don't cheat yourself by trying to go with a discount lawyer instead hire the very best lawyer you can afford.
This is a questions that really depends upon you and it depends upon where you case is being held. Can you live with the question of whether all the difficulty a DUI conviction is going to cause you could have been avoided? How will you know if you could have gotten a result that saves you money and drama later down the road? How important is it to you that you have a real shot to win your case? If you don't have a truly great DUI defense lawyer help you how will you know what is possible.
If you were passed out in the line for an Egg McMuffin at 6:00 a.m. and then confessed to drinking, had a six pack in your lap and blew a big number of the Intox test you are unlikely to get your DUI reduced or dismissed but you may well still need a lawyer. You may desperately need help to minimize the sentence a try to save or restore your license or driving opportunities.
Yes. We do it all the time but it is a qualified yes. It is not easy to beat DUI charges. If it was easy everyone would be doing it. If you want to win your DUI case you need to hire the very best lawyer you can afford and you are off to a great start by doing research. There is a lot of information on this page about how to select a DUI attorney and what you should look for in a winning DUI attorney. We don't take every case and not everyone is a good fit for my firm. The principles of how to select a DUI attorney apply even if we decide that we cannot work together.
If you are arrested for DUI in Georgia, whether it is by a city police officer, a county deputy sheriff, a campus police officer or a Georgia State Trooper, the officer is supposed to read you Georgia’s Implied Consent Notice. This written warning informs you of the stated requirement to submit to testing, the penalties for refusal of the request for testing, and the right to request an independent test. The officer is then required to ask whether you will submit to the chemical test designated by the officer. The test is almost always either blood, breath or urine.
If you refuse the fact that you refused can be offered as evidence against you and the jury will be told of your refusal and given a specific jury instruction on how to treat that evidence. You will also be subject to an administrative license suspension via a Department of Public Safety Form 1205. You have only 30 days from the date of arrest to file an appeal of a 1205 ALS suspension of your license.
DUI, Alcohol or Drug Use Risk Reduction is an intervention program mandated by law for people convicted of Driving Under the Influence (DUI), possession of illegal drugs, underage possession of alcohol while operating a motor vehicle, or Boating Under the Influence (BUI). It consists of two components: an assessment component and an intervention component. Both components must be successfully completed in order to obtain a certificate of completion.
The Assessment Component is completed first. It is a 130-question comprehensive screening instrument used to evaluate the extent of an individual's alcohol and drug use and its impact on driving.
The Intervention Component is administered after completion of the Assessment Component. It is a 20-hour course comprised of several sessions covering several days and delivered in a group environment. The Intervention Component is designed to offer therapeutic education and peer group counseling about alcohol and drug use and its effect on driving.
A complete list of all DDS certified DUI, Alcohol or Drug Use Risk Reduction Programs may be found on the DDS Department of Driver Services website.
It is a 20 hour course. The time it takes to complete a course depends on a variety of factors; but, in most cases, the entire 20 hour course can be completed in less than a week. It is best to discuss course schedules and any specific needs or concerns you may have with the school you choose to attend.
No. In Georgia it is almost always a bad idea to take a DUI school course online. Certificates of Completion from online DUI, Alcohol, or Drug Use Risk Reduction courses cannot be accepted by the DDS for any purposes related to an individual’s driver’s license or driving privileges.
No. Not until the mess is cleared up in the State where your DUI conviction occurred. If your driving privileges are currently under suspension in another state or commonwealth based on a DUI conviction, you will be unable to obtain a Georgia license until all reinstatement requirements have been met and the suspension has been reinstated.
The cost of a DUI, Alcohol or Drug Use Risk Reduction course is set by law. Effective July 1, 2014, the total cost of the course is $355.00. This includes the Assessment Component ($100.00), the Intervention Component ($235.00), and a workbook ($20.00).
An SAE is a clinical assessment to determine whether you have a substance abuse problem that requires treatment. Laws and regulations related to clinical evaluations and substance abuse treatment providers are administered by the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD). Detailed FAQs related to clinical evaluations and substance abuse treatment providers can be found on the Georgia Department of Behavioral Health and Developmental Disabilities website.
Documented proof of having completed a state-approved clinical evaluation is required of all persons that wish to reinstate a suspension of their Georgia driver’s license or driving privileges resulting from two or more convictions of driving under the influence within the past ten (10) years. Laws and regulations related to clinical evaluations and substance abuse treatment providers may be found on the Georgia Department of Behavioral Health and Developmental Disabilities website.