The Difference Between a DUI Per Se and Georgia’s Less Safe Law
A DUI per se conviction is the crime most people associate with drunk driving arrests. All that the State must prove for you to be convicted of this DWI offense is that you were operating a motor vehicle with a blood alcohol content above .08. Your driving did not have to be visibly impaired for the police to make this arrest.
The key difference between a DUI per se charge and a DUI less safe is the driver’s impairment. If a driver is driving in an unsafe manner, the police can make a DUI arrest even if his/her BAC was less than .08. The State has a heavier burden of proof for a DUI less safe conviction. The prosecution will have to prove that the driver was driving in an unsafe manner such as reckless driving, swerving, or speeding in order to justify the police officer’s decision to make a traffic stop.
Georgia’s 30 Day Rule
Formerly Georgia’s 10 day rule, Georgia Law now states that if you were charged with DUI and you refused to take a breath, blood or urine test — or if you took the test and your blood alcohol content result was .08 or greater — you have 30 days to request an administrative license suspension hearing to avoid losing your license for a year.This hearing is separate than the one for your criminal DUI charges, but our law firm can help you file the necessary paperwork to request an administrative license suspension hearing.
As a result of the law changing, you also have the option of placing an ignition interlock device in your vehicle with the accompanying driver’s permit instead of attending a hearing. Talk to one of our attorneys to see which option is best for you. Your initial consultation with a DUI lawyer at Banks, Stubbs & McFarland is free of charge.
DUI Breathalyzer and Sobriety Tests in Georgia
Field sobriety tests can be so strenuous that even a sober driver could have difficulty completing them. Breathalyzer testing can produce faulty and invalid BAC (blood alcohol content) results. When these requirements work against you or a breath test refusal threatens your freedoms and future, the skilled DUI defense lawyers of Banks, Stubbs & McFarland LLP aggressively protect your rights — and Georgia driving privileges.
If you fail a field sobriety test, the police officer will take you to the station in order to perform or more accurate blood alcohol level test. These tests are normally taken by testing a blood, urine or breath sample. The blood test is very direct and measures the amount of alcohol in your system. The urine and breath tests work off of a mathematical formula to derive your blood alcohol level from the sample. If you test above a .08% blood alcohol level, you will be guilty of a DUI unless you can convince the judge otherwise.
Police will often not inform you that you have the right to refuse to a test. Field sobriety tests are voluntary, which means you have the right to refuse them. And, due to their diminished scientific validity, they are often excluded as evidence in court. The tests are set up for you to fail, and even if an individual has no alcohol in his system he could very well fail the test.
Breathalyzer and blood alcohol tests also can produce inaccurate BAC readings. Defenses to these tests include:
- Improper use or faulty equipment: Whether the test is by blood, urine or breath the machines need to be used properly in order to yield viable results. If the machine is used incorrectly, or not calibrated, it can invalidate the results.
- Improper personal administers a test: The person administering or processing the test must go through proper training and certification. If they are not licensed to conduct the BAC, you can use this as a defense.
- Improper blood storage: Blood must be processed and properly stored. If an error is made, the results may be inaccurate.
- No probable cause: There must be probable cause for the DUI stop (unless at a checkpoint). If you can prove there was, in fact, no probable cause, your case could be dismissed regardless of your blood alcohol level.
- Custody chain is incomplete: Any collected evidence must be processed and documented in a particular way. If there are holes or inconsistencies in the chain of custody, this can be used as a defense.
At Banks, Stubbs and McFarland, we are skilled at spotting police errors during DUI arrests. We also safeguard your interests during every phase of the legal process, from administrative license hearings to any criminal charges that you face as a result of being arrested for driving under the influence of alcohol.
Are DUI Checkpoints Constitutional in Georgia?
According to the Supreme Court, DUI checkpoints are allowed by law as identifying drunk drivers is considered more important than preventing this intrusion on individual Fourth Amendment rights. By law, the checkpoints must be temporary, at random locations and their location must be announced in advance.
Police do not need probable cause to conduct a stop at a sobriety checkpoint. All passing drivers at a DUI checkpoint in Georgia must be stopped and questioned equally. Any indication of discrimination, unnecessarily long detainment or mistakes at a DUI checkpoint can be defenses that beat the State’s charges against you.
Public Intoxication in Georgia
Under Georgia law, “a person who shall be and appear in an intoxicated condition in any public place or within the curtilage of any private residence not his own other than by invitation of the owner or lawful occupant, which condition is made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language, is guilty of a misdemeanor.” If you are charged with public intoxication you can receive a sentence of up to one year in jail and may have to pay up to $1,000 in fines. A judge will determine the appropriate sentence by weighing factors such as your past criminal history and any concurrent offenses.
If you were arrested on DUI charges, you face substantial drunk driving fines and other harsh penalties, including suspension or revocation of your Georgia driver’s license.
The skilled DUI defense attorneys of Banks, Stubbs & McFarland LLP, in Cumming use their more than 90 years of combined experience, reputation for results in DUI cases and attentive personal service to protect your rights.
Even if you were driving while intoxicated, accepting guilt is never your only option. If you plead guilty before a trial, sentencing recommendations typically include a day in jail, a year of probation with random drug and alcohol screening, monthly reporting requirements and fees, hundreds of dollars in fines, court costs and taxes, DUI school attendance and community service.
With Banks, Stubbs & McFarland LLP, a DUI defense attorney will fight right alongside you to help preserve your Georgia driving privileges, so you can continue to get to your job and provide for your family.
I was charged with DUI and failing to maintain my lane. Mr. McFarland took my case as soon as I called requesting him to represent me. He set an appointment for us to review my case in a timely manner and I fallowed all of his recommendations. Mr. McFarland always informed me of what he was doing with my case and where we were every step of the way. His knowledge of the law pertaining to my case was spot on. I could not have asked for anyone better to handle my case. As a person putting all their faith in someone to go to bat for you and wanting them to hit the winning home run in the World Series I would ask for Mr. McFarland every time. To see him work in the court room batting for me was like noting I really expected it was 110% better. I went in to this knowing the worst and as time went on I just had to keep my professional game face on. In side I just wanted to jump up and cheer as he went through his winning innings with the district attorney during my pretrial hearing. Long story short, it was 3 and a half years waiting for a trial. Let’s just say on the day of my hearing to proceed with a trial the judge heard from the district attorney and Mr. McFarland and the expert he recommended for my case Anthony Palaccios. The outcome was what I had prayed for and had come to expect through all the updates and continued Professional advice and support from Mr. McFarland. To say I had nothing to worry about during that time period would be false and immature knowing the severity of my charges. I must say that my confidence in knowing that I had the best Attorney defending me was unwavering and he did give me a sense of great confidence in the fact that he was going to prove my innocence. He never did say he would win my case but he always gave me straight factual answers which I admired and will always respect. You never know what is going to happen in the end until the game is over. My game ended with the Judge seeing the facts and hearing the professional testimony from Mr. McFarland with a verdict of all charges suspended. That means everything I was charged with was dropped! Home Run Game over! I wanted to jump out of my seat but I didn’t. I thanked the judge and simply walked out of the court room with the weight of the world lifted off of my shoulders. I highly recommend Mr. McFarland to anyone that finds themselves in need of a DUI attorney.
Criminal DUI Defense Attorneys in North Georgia DUI Cases
The DUI lawyers at Banks, Stubbs & McFarland LLP serve clients accused of drunk driving in Forsyth County and across North Georgia.
Call today to speak with a legal experts on Georgia’s DUI laws. Call 770-887-1209 or use our contact form to schedule an initial consultation.