Goad Law, LLC

So you’ve been charged with DUI.   A few considerations:

If You Refuse the Test You Will NOT Definitely Lose Your License for One Year:

If you refuse to take a breath or blood test, a license suspension is not automatic. If you send a letter with the $150 filing fee to the Georgia Department of Driver Services within ten business days of your arrest a drivers license hearing will be scheduled with your arresting officer at the Office of State Administrative Hearings. Only after this hearing can a driver’s license be suspended for refusing a State-Administered Test. In fact, refusal suspensions are rare when represented by an attorney who can negotiate the suspension during the drivers license hearing.

You Can Beat a Breath or Blood Test Result DUI – It is Not Hopeless:

There are many opportunities for a strong defense in cases with State-administered results.  DUI cases with blood and/or breath tests as evidence are beaten every day. For one, was the stop legal? Many cases can be dismissed because of illegal stops. Second, was there enough evidence – probable cause – to arrest you for DUI in the first place? If not, Stacey will file the pre-trial motions and fight to have your case dismissed long before it ever reaches a jury.  Third, did the police officer correctly read you the implied consent rights? This is the most common source of police error in DUI cases. By law, law enforcement officers must  read your “Implied Consent” rights in the correct manner and at the correct time.  DUI cases across the State of Georgia are thrown out due to the Implied Consent rights not being read in the correct manner or at the correct time. Fourth, were the breath test machine or blood testing records maintained or functioning properly? This is another great way to defeat a DUI case. Finally, there are inherent weaknesses in the science of breath testing to create doubt for jurors.

Field Sobriety Tests Are Not Reliable Indicators of Alcohol Impairment:

The three most commonly used field sobriety evaluations are the Horizontal Gaze Nystagmus Test, or eye jerking test, the nine step walk and turn, and the 30 second one leg stand. These tests supposedly correlate specific clues with blood alcohol levels, but not “impairment” as so often testified to by police on the witness stand.

These tests were validated by NHTSA in the 1970’s in a controlled environment using a cross-section of the population and found that they are reliable around 70% of the time. Other non-controlled studies have been done with higher percentages, but they have been by police and in the field after midnight, which tends to focus on a much narrower cross section of the population.

HGN is naturally present in approximately 10% of the population without the presence of alcohol. Medical disorders such as inner ear infections, vertigo, water in the ear and Meniere’s Disease can cause the eye to jerk or HGN as if alcohol had been ingested. DUI police officers tend to use more than the standardized number of passes for the HGN test and move the pen or target object back and forth several times more. They claim to be making sure they are performing the entire test, but in reality they are actually inducing eye jerking or HGN.

Most police officers can’t even name the muscles of the eye they are testing during HGN. The HGN tests the lateral and medial rectus muscles as well as the cranial nerves that innervate the muscles. The 6th cranial nerve, or the abducens, is tested by the HGN procedure. These muscles are like “rubber bands” and easily fatigue and begin to spasm or “jerk” when over-stimulated. That, of course is the same HGN produced by alcohol ingestion.

The Nine Step Walk and Turn and the One Leg Stand are divided attention dexterity tests. These tests are easier to do with practice. The first time you try them they are often impossible regardless of whether you have been drinking. Just ask them about how long it took them to learn to ride their bicycles, ice skate, roller skate or perform yoga balancing moves. Many athletic activities require practice and frequent repetition in order to perform fluidly, which has no relation to alcohol consumption.

The Romberg test is another sobriety evaluation that is misunderstood and misapplied by police in DUI investigations. In the Romberg test, the subject is asked to stand with feet together, tilt the head back slightly, close the eyes, and estimate 30 seconds. The Romberg Test is a test for Upper Motor Neuron disease. Many older adults will fall over when performing this test without the presence of alcohol.

We encourage our juries to try these tests back in the jury room so they can see how easy they are to fail.

The State-Administered Breath Test at the Jail or Police Station, the Intoxilyzer 5000, is Not Always Accurate and Can be Beaten in Court:

The Intoxilyzer 5000 alcohol breath test machine is flawed, because it has to make assumptions. It assumes, for one, that your body temperature is normal. If you have a fever, every degree of body temperature variation from normal will cause a 7% change in the breath test result. It assumes your “partition ratio” is 1:2100. This means that for every particle of alcohol in your lungs, it assumes there are 2100 particles in your blood. Human partition ratios can vary from 1:1500 to 1:3400. It assumes that your blood alcohol level has peaked and is decreasing. It generally takes 30 minutes on an empty stomach and 2 hours on a full stomach for your blood alcohol to peak. If you blow before you peak, then your breath alcohol level can be as much as 50% higher than your blood alcohol level, because breath alcohol comes from your arterial blood system and blood alcohol level is drawn from your veins. Given the same body size, women will have a higher blood alcohol level than men after drinking the same amount of alcohol, so using blood alcohol levels as a per se determination of DUI discriminates against women. Also, the Intoxilyzer 5000 has a margin for error. It can vary as much as .02 between samples because of variations in deep lung air. It can mistake solvents such as acetone and ketones as blood alcohol on the breath. Radio frequency interference from cell phones can cause errors in breath alcohol readings. It can also mistake residual mouth alcohol from burping and belching as blood alcohol. There is significant room for error.  The Jury needs to know this.

Over the course of her career, Stacey has handled HUNDREDS of DUI cases.

Relax and call now for a free consultation.   (912) 209-9000