George C. Creal Jr., P.C.,

Do I Have a Case? | (404) 333-0706

Every Georgia DUI case has potential, but in order to build a successful defense the facts of the case need to be thoroughly investigated and every opportunity must be sought and exploited. This means, at the very least, pursuing a motion hearing for the suppression of illegally obtained evidence. The State is not required to give you all of their evidence until 10 days prior to trial, which in most cases is when motion hearings are heard. Additionally, in some cases the police will not even speak with you until you get them in court for a motion hearing – many DUI police work the graveyard shift and are asleep during the day.

To truly evaluate your case, a competent DUI lawyer will need to look over the police reports, incident reports, video tape of the arrest, and 911 dispatch tapes, and at least attempt to speak with the police involved, although they are not required to talk prior to taking the witness stand.

Here are a few examples of how we’ve built strong DUI defenses in the past:

1. ILLEGAL STOP  – An individual cannot be pulled over unless the officer has a reasonable and articulate suspicion that a criminal law or traffic violation has occurred. Similarly, a person cannot be seized unless the officer has an articulable suspicion of criminal activity.

1. ANONYMOUS TIPSTERS – A car cannot be stopped simply because an anonymous citizen reports that the driver is drunk. The tip must give specific details regarding the act of driving and be sufficiently descriptive to the point of predicting future criminal activity.

1. STANDARD FIELD SOBRIETY EVALUATIONS ARE JUNK SCIENCE – In healthy individuals, the One-Leg Stand test is 65% accurate, the Horizontal-Gaze Nystagmus (or jerking eye evaluation) is  77% accurate, and the Walk-and-Turn test (or walk the line evaluation) is 68% accurate in determining if a person is impaired by alcohol. There are over 40 different types of Nystagmus other than those caused alcohol ingestion. People with injuries, medical conditions, 50 pounds or greater of excess weight, neck problems, back problems, middle ear disorder, who are wearing heels over two inches, and 65 years of age or older cannot validly be judged by these tests. Further, the tests must be performed exactly as demonstrated or are otherwise meaningless.

1. NON-STANDARDIZED FIELD EVALUATIONS ARE MEANINGLESS – Neither the Federal Government (NHTSA), Georgia Peace Officers Training Counsel (POST) nor the medical community considers the result of touching your finger to your nose, or saying the alphabet, or counting backwards, as a valid evaluation if impairment or non-impairment. There is research that they predict impairment in anyway.

1. BREATH TESTING IS INACCURATE – Virtually all experts concede that one breath test alone is unreliable. Breath testing in Georgia is subject to various inaccuracies: a +/- 25% variance, non-specificity for ethanol alcohol, gender bias, radio frequency interference, interference from acetone, residual mouth alcohol, interference from solvents (benzene, toluene, xylene, ethyl acetate, and methyl ethyl ketones), interference from alcohol vapor from asthma inhalers, alcohol in mouth wash, breath mints, breath strips, menthol smokeless tobacco products, dental problems, etc.

1. INTAKE  VIDEOS – Many police departments videotape suspects at the police station and where they take breath tests. In many instances the suspects’ speech is clear, there balance is normal, they are threatened by police, interrogated without miranda rights, and coerced into taking a breath test in spite of police testimony to the contrary.

1. POLICE CAR VIDEOS – Many police agencies record every aspect of an arrest from the initial stop to the formal arrest. In many instances these recordings betray sober driving, well-performed field evaluations, improper arrests, inaccurate notifications of implied consent or breath test rights, general misinformation, officer threats, and coercion  that discredit the arresting officer and result in dismissals.

1. FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within two terms of court of demand through delays of the court or prosecutor, the charges must be dismissed.

1. CRIME LAB BLOOD TEST INACCURATE – There are instances where crime lab blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations. Samples have been known to have been inexplicably switched. Blood collection kits are expire and blood samples can languish in the U.S. Postal Service unrefrigerated for two weeks or more before being delivered to the crime lab.

1. HOSPITAL BLOOD TEST INADMISSIBLE – Hospital blood tests use different standards and are not certified by a State-approved crime lab. Also, hospital collection and sampling techniques may not be approved by the crime lab.

1. BREATH TEST OPERATOR UNLICENSED – A Georgia Breath Test Operator must possess a valid, unexpired operator’s certificate (certificate is only good for 4 years), or the breath test result is inadmissible.

1. PORTABLE BREATH TESTING DEVICE NOT APPROVED – A portable breath testing instrument must be listed on the Georgia Bureau of Investigation Division of Forensic Services approved list of Devices, or the results are inadmissible.

1. FAILURE TO PROVE DRIVING – A defendant’s admission to driving, without corroboration or more evidence, does not prove a charge of driving, literally driving, under the influence.

1. INDEPENDENT WITNESSES – Family members, friends, doctors, nurses, emergency medical technicians, ambulance drivers, other drivers, fireman, restaurant/bar workers and others can provide crucial evidence regarding a defendant’s sobriety.

1. FAILURE TO MIRANDIZE – Prosecutors may not use as evidence the statements of a defendant or field evaluations in custody for a suspected DUI when the police have failed to properly issue Miranda Warnings.

1. OFFICER’S PRIOR DISCIPLINARY RECORD – A police officer’s previous disciplinary record can be requested under the open records act and used to question the officer’s credibility.

1. PORTABLE BREATH TEST NUMERICAL RESULTS ARE  INADMISSIBLE – Georgia law prohibits the use of portable breath testing results other then to provide proof of the presence or absence of alcohol.

1. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.

1. FAILURE TO CONDUCT OBSERVATION PERIOD – Georgia requires that a driver be observed continuously for a minimum of twenty minutes prior to a breath test in order for the results to be considered admissible and valid.

1. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.

1. MEDICAL AND HEALTH PROBLEMS – Medical conditions involving legs, arms, neck, back, eyes, and diabetes can affect the results of field sobriety tests. Also, certain medical conditions can also affect the validity of breath test results.

1. BAD WEATHER / HEAVY TRAFFIC / FLASHING LIGHTS – Weather reports establishing high winds, low visibility, and other conditions may be used to explain poor driving or poor balance.

1. LACK OF PROBABLE CAUSE TO ARREST — A police officer must have probable cause to support any arrest for DUI, or the  arrest will be thrown out, the suspension will be reversed, and the evidence suppressed at trial. In State v. Tousley, 271 Ga.App. 874, 611 S.E.2d 139, 5 FCDR 731(2005), the test of probable cause requires merely a probability–less than a certainty but more than a mere suspicion or possibility

1. INCONSISTENT STATEMENTS BY POLICE OFFICERS – Any statement made by a police officer, verbally, in police reports, in a driver’s license hearing, or at previous court hearings may be used to attack that officer’s credibility or honesty.

1. POST-DRIVING DRINKING – The prosecutor must prove the blood or breath alcohol resulted from alcohol consumed before or while driving. Post-driving consumption of alcohol will cause the test results to be irrelevant to the Georgia standard for per se DUI.

1. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within 24 months or two years of the date of offense, or the charges can be dismissed outright.

1. CIRCUMSTANTIAL EVIDENCE – In Georgia, a person charged with DUI can not be convicted solely on circumstantial evidence or non-direct evidence unless all the evidence is consistent with guilt.

1. FAILURE TO CALIBRATE THE BREATH TEST MACHINE QUARTERLY – the failure to quarterly calibrate a breath test machine as required by GBI DOFS rules and can be used to discredit breath test results with a judge or jury.

1. ILLEGAL ROADBLOCKS – The police may perform road safety checks except under limited circumstances and for limited legal causes.  Further, road blocks must be approved at the programmic level of the police department and not by officers in the field.

1. FULL INFORMATION – Individuals who submit to blood or breath tests are entitled to full information regarding the tests upon request or the tests can be excluded or the trial postponed.

1. ODOR OF ALCOHOL – No police officer can tell how much you have had to drink by an odor of alcohol. One beer smells the same as a case of beer.

Any Georgia DUI case requires expert representation from aggressive, experienced DUI Attorneys. Even if you don’t hire us, please hire somebody qualified to represent you – do not go to court alone!