05.16.10

Georgia Imposes a $150 Fee to Appeal License Suspension

Posted in Uncategorized at 9:06 pm by Kimbrell & Burgar, LLC

The Georgia Governor signed into law HB 1055, which mandates that persons charged with DUI submit a $150 fee to appeal any administrative license suspension (“ALS Appeal”). The ALS Appeal, associated with what had been known as the “10-day rule,” had previously only required that a person or his attorney submit an appeal within 10 days of arrest. Now, a substantial fee must also be submitted with the appeal within the same 10-day deadline.

This is a drastic change from previous law.

K&B, llc

03.11.10

Perhaps a law that will help those accused of DUI?

Posted in Uncategorized at 5:00 pm by Kimbrell & Burgar, LLC

It has long been the solid trend in Georgia that any changes to DUI law in Georgia have been strongly against the interests of the accused. However, this year the Georgia legislature is considering HB 24, a bill which would adopt the federal rules of evidence. This may or may not help those accused of crimes generally, but the federal rule as it applies to “similar transactions” is much more favorable to DUI defendants.

“Similar transaction” evidence is evidence of past acts used to prove motive, intent, or in the case of DUI, “bent of mind.” In a nutshell, current Georgia law allows the State to introduce evidence of prior DUIs to show “bent of mind” or a propensity to drive drunk. In most other circumstances, character evidence such as this is strictly prohibited, but the current law allows a unique exception in Georgia for DUIs. Frankly, we consider this to be grossly unfair to our DUI clients.

We’ll monitor the progress of HB 24 and post at a later date. Hopefully the law will be changed to end what can only be considered an unjust law applied to DUI defendants.

K&B, llc

03.08.10

They are a lot stricter elsewhere

Posted in Uncategorized at 3:22 pm by Kimbrell & Burgar, LLC

A frequent complaint we hear from clients is that .08 blood alcohol limit for DUIs is too low. This is certainly a subject for debate, but we must acknowledge the limit tends to be even lower elsewhere in the world:

German Protestant leader quits after DUI incident
By GEIR MOULSON

The Associated Press

BERLIN — Germany’s top Protestant cleric resigned on Wednesday after she was caught driving with a blood-alcohol level three times the legal limit, an incident that she said had undermined her authority.

Germany’s top Protestant cleric has announced her resignation after she was caught driving with a blood-alcohol level three times the legal limit. Margot Kaessmann said Wednesday that she is stepping down as the head of the Lutheran church following the weekend incident. Kaessmann was stopped by police Saturday after running a red light in Hanover.

Margot Kaessmann, who was elected only last October as the first woman to head Germany’s Lutheran church, said she was quitting both that post and her job as bishop of Hannover immediately.

“I made a serious mistake that I regret deeply,” Kaessmann, 51, said in a statement to a televised news conference.

“My heart tells me very clearly that I cannot remain in office with the necessary authority,” she added. “I would no longer have in the future the same freedom that I have had to name and judge ethical and political challenges.”

During her brief time in office, Kaessmann proved willing to give the Protestant church a voice of authority, wading into key political issues including the war in Afghanistan. Her resignation, despite support from her church, commanded widespread regard.

Chancellor Angela Merkel said she accepted Kaessmann’s decision “with respect and regret,” adding that she had valued working with the bishop.

Kaessmann was stopped by police on Saturday after ignoring a red traffic light in Hannover.

A test showed she had a blood-alcohol level of 0.154 percent — well above the legal limit of 0.05.

Kaessmann, who was accompanied by her four daughters as she gave her resignation statement, gave no detailed explanation of her actions and took no questions.

Because her blood alcohol level was above 0.11 percent, it is considered a criminal offense in Germany. Prosecutors in Hannover have begun an investigation.

Kaessmann faces the loss of her driver’s license for at least several months and a fine.

After the story broke on Tuesday, fellow Lutheran church leaders gave her a vote of confidence and left Kaessmann to decide what to do.

Kaessmann’s deputy, Nikolaus Schneider, was to take over until new elections for the post are held in November. A term lasts six years.

She said that she would remain a pastor in Hannover, where she has been bishop since 1999.

Kaessmann was diagnosed with breast cancer in 2006, forcing her to undergo an operation and take a two-month break from her duties. The following year, she and her husband of 26 years divorced.

As top Protestant cleric, Kaessmann offered sharp criticism of the war in Afghanistan, where Germany has more than 4,000 troops. She declared in a New Year’s sermon that “nothing is good in Afghanistan.”

Politicians and clergy valued Kaessmann’s ability to combine down-to-earth sensibility with an interpretation of her faith.

“I personally regret her resignation very much, because I have come to know and value her as a reliable advocate for solidarity and a strong personality who combines theological competence with life experience,” said Sigmar Gabriel, the leader of the opposition Social Democrats.

Copyright 2010, The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

K&B,llc

02.08.10

More People May Become Eligible For Expungment Of Their Criminal Records in Georgia

Posted in Uncategorized at 4:07 pm by Kimbrell & Burgar, LLC

The Georgia Legislature is considering HB 511, which would allow more people to be eligible to have their arrest records expunged.

As many may already know, current Georgia law only allows arrest records to be expunged in very limited circumstances. Frankly, unless an officer arrested someone by accident, it’s not likely they will be eliglible for expungement under current law.

The current version of HB 511 would allow for expungement when an accused is found not guilty, if their charges were dismissed by nolle prosequi or by being placed on the dead docket, or if they completed a pretrial diversion program. These would be a welcome change from the current, almost useless, law.

Furthermore, a specific provision of the current bill is that it specifies that an applicant for employment would not have to disclose the arrest or the fact of expungement to a prospective employer. Again, this would be a welcome change for many clients.

We will post updates as this bill makes its way thorugh the legislature. At this time, we won’t guess if it will make it to law.

k&b, llc

01.22.10

DUI Enforcement at Piedmont Ave & Monroe Dr

Posted in Uncategorized at 11:49 pm by Kimbrell & Burgar, LLC

Over the years the various DUI task forces have focused their attention on various Atlanta locations. They change from time to time as one might expect. In recent weeks we’ve noticed that clients have reported that the Georgia State Patrol Nighthawks DUI Unit has begun DUI enforcement near the Piedmont Ave & Monroe Dr area (Smith’s, Burkhart’s, Cowtippers). It’s been a while since that area has been patrolled regularly. Please be mindful.

K&B, llc

01.03.10

New “Super Speeder” law now in effect

Posted in Uncategorized at 3:13 pm by Kimbrell & Burgar, LLC

Georgia’s “super speeder” law went into effect a few days ago. It doesn’t create a new offense, but it does increase fines associated with higher speeds. Specifically, going over 85 mph on the highway will cost one an additional $200 on top of whatever fines would otherwise be assessed. On two-lanes roads, the additional fine kicks in at 75 mph. These are seperate fines that will be charged to the driver by the State of Georgia once the state is notified of the violation.

This is a new concept that we assume will lead to lots of litigation. We’ll post as the matter gets sorted out in the courts.

K&B, llc

12.31.09

A Friendly New Year’s Reminder

Posted in Uncategorized at 2:34 pm by Kimbrell & Burgar, LLC

As we all prepare to celebrate the coming of the New Year, please be mindful that law enforcement activity will be very high, with emphasis on finding drunk drivers. This is particularly true in the metro Atlanta area. Of course, our best advice is not to drink and drive at all tonight. Designate a driver or take a taxi where possible. It’s simply not worth the risk to drive tonight if you have anything to drink. We have yet to find a good exception to this rule on New Year’s Eve.

For those who do not follow our advice, remember that field sobriety exams are entirely voluntary in Georgia. You’re not going to argue your way out of a DUI, so why give the state extra evidence against you? If you do run into problems, please call us first thing in the morning, 404-781-0400.

This REALLY shouldn’t be possible

Posted in Uncategorized at 2:25 pm by Kimbrell & Burgar, LLC

Another ridiculously high BAC was published in a recent article. A few weeks ago, we were shocked to read of a .40+ test with the driver still functioning. Now we read of a .70+ test! We’re sure the driver’s BAC was way too high, but we suspect the actual number may be an error in the testing equipment (something that occurs regularly at very high readings). A level that high is not survivable.

Woman’s blood alcohol content topples state records
Story Discussion Andrea J. Cook Journal staff | Posted: Wednesday, December 30, 2009 9:15 am

A Sturgis woman had a blood-alcohol level of .708 percent, possibly a state record, when she was found earlier this month behind the wheel of a stolen vehicle parked on Interstate 90, according to Meade County State’s Attorney Jesse Sondreal.

A South Dakota Highway Patrol trooper discovered Marguerite Engle, 45, on Dec. 1 passed out behind the wheel of a delivery truck reported stolen in Rapid City.

Her blood-alcohol level was almost nine times South Dakota’s legal limit of .08 percent.

Checks with local and state labs where blood-alcohol levels are tested suggest Engle’s reading may be the highest ever recorded in South Dakota, Sondreal said.

Sondreal said a state chemist recalled a sample that tested .53, but nothing higher, in his more than 30 years on the job.

Dr. Robert Looyenga, who recently retired from the Rapid City Police Department’s forensic laboratory, told Sondreal that the highest blood-alcohol sample he tested measured .56 percent.

Sondreal’s research indicates that a blood-alcohol level of .40 is considered a lethal dose for about 50 percent of the population.

“Engle’s was almost double that,” Sondreal said.

After she was found, Engle was hospitalized and freed on bond.

She failed to appear in court on Dec. 15, but Sturgis police located her Monday evening in another stolen car sitting in a ditch along S.D. Highway 34 near Fort Meade.

Engle was arrested for second offense driving under the influence and taken to jail.

Engle made her initial appearance in Meade County magistrate court Tuesday. She is being held without bond.

Sondreal said Engle has been living in a hotel after recently moving here from Minnesota.

Engle is most likely facing charges in Pennington County since both vehicles were stolen in Rapid City, Sondreal said.

Andrea Cook

11.30.09

Sometimes even Georgia has reasonable laws protecting the accused

Posted in Uncategorized at 4:25 pm by Kimbrell & Burgar, LLC

With recent news in Florida about police seeking a search warrant to get Tiger Woods’ medical records, we were reminded of a recent article detailing Florida police efforts to get around a driver’s refusal to submit to a breath test.

Apparantly, local police believe Florida law allows them to get by search warrant what they could not get by the driver’s consent. The article details their efforts to get search warrants to force Florida drivers to submit to chemical testing. Georgia law gives greater protection to drivers and respects their decision to refuse chemical testing. In Georgia, while you may have your license suspended for refusing, the police can’t get a search warrant to force you to submit to chemical testing. If you excercise your right to refuse, the discussion ends there.

Vero Beach police use search warrant to draw blood in suspected DUI case, may continue practice
By Elliott Jones
Posted November 25, 2009 at 1 a.m. , updated November 25, 2009 at 7:22 p.m.
VERO BEACH — In an change in policy, city police on Nov. 19 used a court-ordered search warrant to draw a blood sample from a woman who refused to take a Breathalyzer test in a suspected DUI case, police officials said Wednesday.

“We’re looking into feasibility of continuing the practice,” said Capt. Keith Touchberry of the Vero Beach Police Department. “Legally, it can be done.”

Vero Beach is the first law enforcement agency to take that step on the Treasure Coast, according to the State Attorney’s Office.

But defense attorney Bobby Guttridge of Vero Beach said Indian River County’s Criminal Defense Lawyers Association is gearing up to challenge the new practice.

“We understand having safe roads, but holding someone down and taking blood by sticking a needle” in them is unreasonable, Guttridge said.

This year in Vero Beach, 27 percent of the people stopped for DUI refused to take a state-required Breathalyzer. Statewide, more than 30 percent refused, state officials say.

In 2005, Florida had the highest Breathalyzer refusal rate in the nation: 37.1 percent versus 25 percent nationally, according to federal figures. For a first-time refusal, Florida can take away a driver’s regular permit for a year. But drivers can appeal.

Earlier this year Indian River County Administrator Joe Baird didn’t take a Breathalyzer when Vero Beach police arrested him on DUI charges. A jury later found him not guilty and the jury forewoman said jury members felt they didn’t have enough evidence to convict Baird.

“(Requiring blood samples) is all about crime prevention and preventing people from drinking and driving,” Touchberry said.

The officer said police agencies in Brevard County and in the Jacksonville area are already using search warrants to get blood samples.

Having blood tests “would be to our advantage” in prosecuting cases, said Assistant State Attorney Chris Taylor, who is in charge of the Indian River County office. He said what Vero Beach is doing will help set a standard for possibly expanding the practice to other local law enforcement agencies.

On Nov. 19, the blood sample was drawn from Tamara Iannuzzi, 31, of Vero Beach, who was stopped on suspicion of DUI around 9:30 p.m. on Indian River Boulevard. After the stop, police went to a county judge and got a search warrant.

Indian River Shores Public Safety drew the blood. Now Indian River Shores is reviewing whether it will continue the practice because of manpower shortages and the time it takes to handle the cases, a spokesman said.

Iannuzzi is charged with misdemeanor DUI. Results of her blood alcohol test are pending, Touchberry said.

Indian River County DUI defense attorney Andy Metcalf said the forcible taking of blood in such DUI cases “is an outrageous assault on our privacy rights.”

Metcalf said he doesn’t object to drawing blood in DUI cases where there is serious bodily injury or death.

But, he said, drawing blood “just because officer has hunch someone is impaired” is wrong. “That is not the American justice system I believe in.”

This shouldn’t even be possible!

Posted in Uncategorized at 4:12 pm by Kimbrell & Burgar, LLC

In our profession, we see quite a few BAC readings on the extreme end. This case from Cincinnati is about as high as we’ve seen. Frankly, we have some doubts as to the precision of a test at this extreme given the machine used and her apparant ability to function to some degree, but we’ll leave that issue for another post. When a blood alcohol content actually exceeds .40, there’s a good chance that it is going to be lethal.

Grandma didn’t get run over, but she did blow a .415
By Jennifer Baker and Kimball Perry • jbaker@enquirer.com | kperry@enquirer.com • November 25, 2009

A grandmother who police said was driving at more than five times the legal limit for alcohol was ordered jailed on a $32,000 bond Wednesday.

“I think she’s where she needs to be (in jail) at this time of year, so we don’t get her back on an aggravated vehicular homicide charge,” Charlie Rubenstein, a Cincinnati prosecutor, said.

Maria Krull, 46, of West Price Hill was charged Tuesday with driving drunk, registering a blood-alcohol content of .415 percent, more than five times Ohio’s legal limit to drive of .08 percent.

“I’ve never seen one that high before,” Hamilton County Municipal Court Magistrate Melissa West noted in ordering Krull jailed on the $32,000 bond.

Rubenstein said Krull was arrested for drunk driving while her 5-year-old granddaughter was in the vehicle.

Krull was pulled over by Cincinnati police for speeding just after 4 p.m. Tuesday in the 100 block of West Third Street downtown.

“That’s crazy high,” said Blue Ash Police Officer Mark Ziegler, who oversees the Hamilton County OVI Task Force. “That’s probably one of the top five tests that I’ve seen in my 23-year career.”

According to blood alcohol statistics, someone at her weight – 180 pounds, according to her ticket – would have to consume at least a dozen drinks to register that high. There is a possibility of coma and death due to respiratory arrest.

“When you see someone who’s in the mid .2s, they are unable to perform any remedial task,’’ Ziegler said. “For her to be a .415, she’s definitely got some kind of alcohol problem.”

It wasn’t Krull’s first drunk driving arrest. She was charged Sept. 27 by Cincinnati police in a case that remains pending. When she was pulled over again this week, she was driving her 2000 Ford Windstar minivan on a suspended license, records show.

In addition to a second OVI offense in two months, Krull also faces charges of child endangering and driving with a high blood alcohol level. Her vehicle also did not have proper license plates.

Children’s case workers plan to launch an investigation into the incident, said Brian Gregg, spokesman for the Hamilton County Department of Job and Family Services.

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