06.09.09
Posted in Uncategorized at 12:58 pm by Kimbrell & Burgar, LLC
We are often asked by people whether to refuse state chemical testing after a DUI arrest.* It’s not a simple problem, and we generally don’t offer an opinion. On one hand, a test showing a blood alcohol content that is over the limit is generally a very serious problem, certainly one we would hope to avoid whenever possible. However, a potential year-long license suspension without a work permit for refusing the test is a very serious problem for the client, too. If one finds themselves in a DUI situation, you pretty much have to pick your poison.
As attorneys, we devote our attention to the facts and circumstances that resulted in a chemical test or a refusal, and the legal implications that result from the descision. We avoid telling people what to do for the next time they choose to have a drink and the drive.
However, from time-to-time it is a good exercise to see what other people “in the know” would do when faced with the decision to refuse or not to refuse. Here’s a link to a situation where a judge found himself in a difficult spot. We’ll see down the road what impact his decision had on the actual DUI case.
K&B, llc
* Note a distinction between state chemical testing after arrest and field sobriety exams. Field sobriety exams are always voluntary in Georgia. There is no requirement that you participate.
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05.25.09
Posted in Uncategorized at 2:26 pm by Kimbrell & Burgar, LLC
This was not a good idea.
Pa. man nabbed twice in 3 hours on DUI charges
CORAOPOLIS, Pa. — Police said they arrested a Pittsburgh-area man twice within three hours on a charge of driving under the influence of prescription drugs. Police said they first pulled over a 26-year-old man about 8:30 p.m. Friday. They said he had muscle relaxers and another type of pills used to help people withdraw from opiates in his car after he failed a field sobriety test.
Police say they dropped the man at his mother’s house telling him DUI charges would be mailed to him. About 11:15 p.m, police said the man came to the police station seeking medication seized from his car.
Police said the man told them he got a ride to the police station, but they pulled him over when they saw him try to drive away.
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Information from: Beaver County Times, http://www.timesonline.com/
K&B,llc
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05.19.09
Posted in Uncategorized at 9:52 am by Kimbrell & Burgar, LLC
Last night, a colleague of ours forwarded this link to a webpage discussing the statistical inaccuracies of the Standardized Field Sobriety Test battery (SFSTs). While the website is a bit over the top and one-sided in its presentation, it does to some degree point out the numerous problems in attempts the government has made to validate the supposed accuracy of the SFSTs in detecting impaired drivers. What is important to note from that webpage, and others like it, is that SFSTs are not a “magic bullet” allowing officers to perfectly identify DUI drivers. At best they are tools, which when implemented correctly, only give the officer some guidance that a driver may be impaired.
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05.14.09
Posted in Uncategorized at 4:31 pm by Kimbrell & Burgar, LLC
The Intox 5000
The official breath testing device used by the State of Georgia in DUI cases is the Intoxilyzer 5000, manufactured by CMI, Inc. Despite its fancy, futuristic name, it came into service in Georgia in 1995, and most jurisdictions are using the same tired machines they brought into service way back then. It is based on very outdated technology and uses a microprocessor developed way back in 1975! CMI and other manufacturers have developed newer generations of the device, such as the Intoxilyzer 8000, but Georgia has seen no reason to move into the 21st Century.
We don’t bring this up merely to make fun of an antiquated machine that looks like someone built it from parts from a RadioShack, but to make the point that drivers need to be mindful that they will be tested on outdated machinery if suspected of being DUI. Not only is the machine outdated, but Georgia law allows judges to instruct jurors that the results from this piece of junk are “accurate” so long as the officer knows how to operate the machine and it didn’t look to the officer that the machine was broken when he used it. Could you imagine asking your doctor about the accuracy of lab results and he responded “well, the machine didn’t look broken so it must be right!”
The law is definitely written to defend the machine as much as possible from attack. Of course, prosecutors and police officers swear it never makes a mistake. But if that is the case, why does the law allow results from the machine to vary as much as .02 grams per liter and still be considered accurate (see O.C.G.A. 40-6-392)? Said differently, in a borderline case of a .08 blood alcohol content, the State can get away with a 25% variation in test results and the judge may still call it “accurate.” If it’s such a good machine, why do you need a law that permits such a huge range of error? One does not have to be a DUI defense attorney to think a +/-25% permissible margin of error is ridiculous.
What does this all mean? As we’ve said over and over again, think twice before drinking and driving. The decision to charge you with DUI will result from a machine with technology far less sophisticated that your average digital wristwatch. Please don’t risk subjecting yourself to this nonsense!
K&B, llc
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04.28.09
Posted in Uncategorized at 3:04 pm by Kimbrell & Burgar, LLC
Once in a while in our profession it becomes statistically obvious that police are focusing their energy at DUI enforcement at a particular location. This month it seems clear that the Cobb County Police are devoting considerable time to DUI countermeasures near Cowboys dancehall in Kennesaw, Georgia. While targeting drivers leaving a nightspot may not seem very sporting, it is a perfectly legal police practice.
With this in mind, and while observing the large number of our clients arrested near there this month, we simply remind folks that drinking and driving is a bad idea wherever you do it, and if you do it near Cowboys, you have very good odds of getting arrested. When you go out and have a good time, please remember to designate a driver or make arrangements to take a taxi home.
K&B, llc
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04.27.09
Posted in Uncategorized at 1:53 pm by Kimbrell & Burgar, LLC
Georgia has a lot of counties and an almost endless list of municipalites. Each county has its own court system, and within these counties, the vast majority of municipalities have their own courts as well. These municipal courts generally have jurisdiction to deal with traffic matters and ordinance violations, as well as DUIs and cases involving the possession of less than one ounce of marijuana. Municipal courts, however, do not have the authority to conduct jury trials. If an accused person wants a jury trial on his charge of DUI, for example, the matter will be transferred (“bound over”) to the state court in that county.
The municipal courts themselves are extremely varied. Larger cities such as Atlanta or Sandy Springs have several judges and full-time solicitors (prosecutors). In smaller cities such as Dallas, the police officers themselves serve as the prosecutors. In either circumstance, a municipal court usually offers the an attorney his first opportunity to investigate and negotiate his client’s case.
While not an exhaustive list, these are some of the metro Atlanta municipalities where we frequently defend DUI matters:
Fulton County:
City of Atlanta
Sandy Springs
Roswell
Alpharetta
Johns Creek
College Park
Union City
East Point
Cobb County:
Marietta
Smyrna
Kennesaw
Powder Springs
Gwinnett County:
Lawrenceville
Duluth
Norcross
Lilburn
Snellville
DeKalb County:
Doraville
Clarkston
Chamblee
Decatur
Paulding County:
Hiram
Dallas
Fayette County:
Fayetteville
Peachtree City
Douglas County:
Douglasville
Clayton County:
Riverdale
Jonesboro
K&B, llc
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04.17.09
Posted in Uncategorized at 12:41 pm by Kimbrell & Burgar, LLC
Officer use many techiniques to assist them in detecting impaired drivers. The most common of which are the Standardized Field Sobriety Tests (SFSTs) popularized by the National Highway Traffic Safety Administration. The SFSTs are the HGN test, the 9-step walk and turn, and the 1-leg stand. While the accuracy of the SFSTs is certainly subject to debate, at least these methods have been scientifically studied to some degree. The same cannot be said for many of the homegrown methods commonly used by law enforcement.
Georgia law gives police officers wide latitude in the “tests” they can use to assist them in detecting impaired drivers. This has led to a wide range of homemade techniques from the logical to the wacky. There is no literature suggesting these custom field exams have any scientific validity, but there is certainly broad legal authority in this state for an officer to try them out. Compliance with an officer’s request to perform these tests remains purely voluntary in Georgia (a fact generally not disclosed by most officers).
The most common of these are the variations of the “alphabet” test. Many years ago, local City of Atlanta law enforcement decided asking a suspected driver to recite the alphabet was too easy. Officers began developing their own versions, ultimately to the point it seemed there was a contest among officers as to who could develop the silliest version. Over time, a few versions became the most popular in metro Atlanta:
* Say the alphabet without singing (it’s harder than it seems)
* Say the alphabet from C to Q
* Say the alphabet backwards from C to Q
Whoever came up with the C to Q backwards test was probably a bit of a sadist. If confronted with such a request, you may want to remind yourself that this is a completely voluntary request.
The regular C to Q test is a particularly clever divided attention exam. Like the SFSTs, it is intended to examine the ability to process multiple tasks and remember instructions: know and say the alphabet, remember to start at C, and most importanly, remember to stop at Q. Most drivers are not threatened by this exam so they do it voluntarily. However, there is a good chance that by the time one gets to “L, M, N, O”, he has completely forgotten the instruction to stop at Q. Many a sober driver has gotten caught up in a lengthy DUI investigation, and sometimes a DUI arrest, for forgetting to stop at Q.
What is to be learned by this? Above all else, remember that field exams are voluntary in Georgia. Beyond this, be sure to practice your alphabet. You never know when you will be called to recite it!
For your viewing pleasure, a truly difficult field exam:
Steve Martin DUI Exam
K & B, llc
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04.07.09
Posted in Uncategorized at 3:33 pm by Kimbrell & Burgar, LLC
You do not want to be arrested for driving this.
DUIs come in all shapes and sizes, and folks must remember that the prohibition against driving under the influence does not just apply to cars and trucks. Any vehicle would apply, which includes every device upon which a person may be transported upon a highway.
Two recent examples have reminded us that it is not a good idea to go drink and drive golf carts and bar stools.
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Posted in Uncategorized at 3:11 pm by Kimbrell & Burgar, LLC
A local Atlanta incident last week showed how a DUI can get from bad to worse very quickly:
Wrong-way DUI driver begs cops to shoot him
By MIKE MORRIS
The Atlanta Journal-Constitution
Friday, March 27, 2009
An overnight high-speed chase of a driver who police said was “highly intoxicated” ended when the suspect wrecked while going the wrong way on an Alpharetta road, then asked officers to shoot him.
Instead, the officers subdued the man with a stun gun and took him into custody, Alpharetta police spokesman George Gordon said.
Gordon said the incident began about 1:45 a.m. Friday when officers tried to pull over a Mercedes on Windward Parkway.
Thomas Lackey, who Gordon said is in his early 30s, did not stop and continued south on Ga. 400, reaching speeds of more than 130 mph before exiting onto Old Milton Parkway and going west in the eastbound lanes.
“It’s every officer’s nightmare,” Gordon said. “You’ve got a highly intoxicated driver fleeing at a high rate of speed with no regard for the public.”
On Old Milton Parkway, Lackey struck an Alpharetta police car before hitting a tree in the median of the road.
After wrecking, Lackey got out of the Mercedes “and started yelling to the responding officers to shoot him.”
“He was highly combative, belligerent,” Gordon said. “He resisted arrest and one of our officers Tasered the suspect and took him into custody.”
Lackey was charged with driving under the influence, fleeing and eluding, aggravated assault by motor vehicle and resisting arrest, along with numerous traffic charges.
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03.24.09
Posted in Uncategorized at 2:49 pm by Kimbrell & Burgar, LLC
Last month we posted an update on HB 92, a bill which seeks to impose mandatory ignition interlock devices for first-time DUI offenders who tested over.15 grams/liter. The bill has not progress too far, but it is clear MADD has made it a priority item for its efforts in Georgia and several other states. If passed, this bill would represent the most significant increase in DUI penalties we have seen in quite some time.
In other matters, it seems that legislative efforts to require seat belt usage in pickup trucks has failed again. The legislature has tried to make seat belts a requirement for pickup trucks for decades, but these efforts have always met with stout resistance from rural legislators. Legal or not, our firm strongly suggests everyone use their seatbelts. We see far to often what happens when folks fail to use these safety devices.
The proposed “super speeder” law, HB 160, has passed in the House and has moved to the Senate. This bill, among other things, adds an additional $200 fine to all speeding tickets where the alleged speed is over 85 mph on highways, or 75 mph on other roads. For those with any familiarity with driving habits in Georgia, this bill, if passed, is likely to effect everyone as we all seem to be leadfoots in this state.
K & B, llc
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