Georgia DUI Defense

The DUI Investigation

Police officers are trained to begin their DUI investigation as soon as they believe that you might be impaired by drugs or alcohol Most officers now have dashcam and/or bodycam video to record their encounter and investigation. They are trained to watch your vehicle in motion to identify any traffic violations. Common traffic violations that occur before a DUI arrest include O.C.G.A. 40-6-48 failure to maintain lane, 40-8-20 Headlights Required, 40-6-181 Speeding, and many accident citations like 40-6-70 failure to yield and 40-6-49 following too closely.

After putting on their lights, the officer is then looking at the time and manner you pull your vehicle over onto the side of the road. They approach your vehicle and ask you for your drivers license and they are trying to see if you struggle to give them your license. Can you find it? Is it stuck in your wallet? Do you fumble it while handing it to them? These are all things the officer will use to indicate you are impaired.

The officer then may ask where you are going, do you know what time it is, have you been drinking, what have you been drinking, how much have you had to drink, when was your last drink, and other questions to gather additional information of whether you are impaired. They will often ask you out of the vehicle after these questions, either to ask you to perform field sobriety tests or possibly give a roadside breath sample.

Remember, you have the right to remain silent. That involves not answering any of their questions, or providing any evidence through field sobriety evaluations or the preliminary breath test on the side of the road. If you do agree to perform field sobriety evaluations, officers generally ask you to perform three tests; the horizontal gaze nystagmus (HGN or Eye) test, the walk and turn test, and the one leg stand test. The officers should ask you if you have any issues that would prevent you from performing these tests. Issues with your eyes, back, legs, knees, and feet could prevent you from performing these tests to the best of your ability. You need to let the officer know if you have problems, and assert your right to refuse to perform the tests if you choose.

The Horizontal Gaze Nystagmus Test

The horizontal gaze nystagmus test is a medically verified test use to examine the involuntary jerking of the eye as it moves side to side across your field of vision. Because it is a medical test, the officer must ask you qualifying questions to help determine whether the results will be accurate. These questions should involve whether you have ever had a head or brain injury, do you wear glasses or have problems with your eyes, or any other issue that would make it difficult to perform this test. It is important to let the officer know if you have these issues, because if you say you have no issues, that statement can be used against you later. After asking the medical qualification questions, the officer will then look to make sure your eyes have equal tracking (meaning they move together) and your pupils are the same size. If the officer cannot see equal tracking and equal pupil size, they are not supposed to continue the test.

Once the medical qualification is complete the test begins. The test involves three specific tests, each performed twice, looking for two clues on each test, one in each eye. The first test is lack of smooth pursuit, meaning while the officer is moving his finger side to side slowly across your field of vision, your eyes are quickly jerking back and forth as they move side to side. The second test is distinct and sustained nystagmus at maximum deviation. Here, the officer is looking for continued side to side jerking as they hold their finger at the outer limit of your field of vision. Finally, the last test is the onset of nystagmus prior to a 45 degree angle from the center of your field of vision. The officer moves their finger slowly from the center of your vision, stopping their finger at the point they first notice the nystagmus. If that point is before 45 degrees from the center of your field of vision, they will note it as two clues.

These tests are cumulative, meaning an officer cannot notice clues in the second and third tests, but not the first test, or in the first and third tests, but not the second. The clues should be present in each eye. If they are not present in both eyes, then there is a medical issue that should stop the officer from continuing the test. Officers are trained that 4 out of 6 clues indicates impairment.

The Walk and Turn Test

The second field sobriety evaluation you are likely asked to perform is the walk and turn test. The Walk and Turn test is a motor skills test that will generally begin with the officer asking you to enter a starting position with your left foot on an imaginary line. They will then ask you to place your right foot in front of your left foot, touching right heel to left toe, with your hands by your side. They will ask you to hold that position as they continue the instructions. They will then tell you when they say begin to take nine heel to toe steps, turn making a series of small steps and then take nine heel to toe steps back. They will remind you to keep your hands by your sides at all times, look down at your feet, and count the steps 1 through 9 in each direction, and to not stop once your start the test. After saying the instructions, the officer will perform the test, taking three steps, demonstrating the correct method of turning, then taking three more steps. After asking if you understand, they will tell you to begin. While you perform the test they are looking for 8 clues:

1. Do you break the heel to toe stance with arms by side while listening to instructions?

2. Do you start the test too soon?

3. While walking, do you stop at any point?

4. While walking, do your feet miss heel to toe by more than a quarter of an inch?

5. While walking, do you step off the straight line?

6. While walking, do you raise your arms for balance?

7. Do you perform the turn in the correct manner, keeping your front foot in place as you take a series of small steps to turn?

8. Do you take the correct number of steps in each direction?

The test is designed to look for eight clues, and if you show two of eight clues, it indicates impairment. It doesn’t matter if you exhibit the clue throughout the test, or just once, it still counts as one clue and indicates impairment. There are 76 opportunities to exhibit clues during the test, and the officer is going to claim showing two means your are impaired.

The One Leg Stand Test

The final of the three standardized field sobriety evaluations is the one leg stand test. To perform this test, the officer usually asks you to stand with your feet together, hands by your side. The officer then tells you when the test begins to pick a foot, whichever you choose, and lift it six inches off the ground, stare at the foot and begin counting. While you perform the test, the officer is looking for four clues:

1. You put your foot down any time during the test.

2. You use your arms to balance while performing the test

3. You hop on one foot while performing the test

4. Your body sways while performing the test.

Officers are trained that if you show two of the four clues that it is evidence of being impaired by alcohol or other substances.

Roadside Breath Testing

After the field sobriety tests, the officer may ask you to provide a roadside breath sample. This test is not the official breath test. It does provide a number, but that number cannot be used against you at trial. The officer can only say whether the test was positive or negative for alcohol. Again, it is your absolute right to refuse to submit to this preliminary breath test.

DUI Conviction Punishment

The punishment after a DUI conviction is set by statute in O.C.G.A. 40-6-391. That statute states that for a first DUI conviction within a 10 year period from date of arrest, the punishment is:

• 12 months probation with 10 days to serve in custody, all but 1 of those 10 days can be probated

• $300 fine plus additional court costs and state surcharges

• 40 hours of community service at a federally recognized non-profit organization

• An alcohol and drug evaluation with a licensed counselor and any additional treatment

• A DUI Risk Reduction course

• A 120 day Georgia drivers license suspension, but if it is your first arrest within a five year period, the ability to acquire a limited driving permit for those 120 days to drive to work, school, medical appointments, court, probation, one religious service a week, and to take care of your dependents for the above activities

Additional DUI convictions within that 10 year period will increase the jail time, fines, and community service required.

In regards to your drivers license and multiple DUI convictions, the period they look at is a 5 year period from date of arrest, and starting at the 2nd conviction in 5 years, your license will be suspended without the ability to get a limited driving permit.