There are many myths and misconceptions surrounding DUI charges in Atlanta. The following addresses some of the most prevalent myths and how an experienced Atlanta DUI lawyer can assist those arrested or charged with this offense.
Answer: Sometimes true
People often ask whether or not they should submit to the portable breath test before they are arrested. The PBT or portable breath test is commonly used by the police departments in Georgia to give the officer a digital readout of the person’s estimated blood alcohol concentration. This device is not approved for evidentiary purposes in court, however, the officer can tell the jury during trial is that the driver submitted to a portable breath test and it either did or did not detect alcohol. Many police officers say their decision to arrest often relies heavily on the portable breath test reading. Although those tests might not always be reliable of getting the same result every time, they can be accurate enough to give an officer a gauge regarding how much alcohol the person has consumed.
If a driver knows that they have had only a little bit of alcohol, where they would be well below the legal limit, an attorney might encourage them to take the portable breath test. If an adult driver gives a portable breath test and it shows that they are only 0.02, there is a good chance the officer will let them go home. If they test over the legal limit, it will likely lead the officer to arrest them.
If a person is 0.08 or higher, they are automatically considered to be DUI per se or DUI as a matter of law. However, a person can still be arrested and prosecuted if you are below 0.08, 0.07, 0.06, and 0.05.
If a person is going to drink, they should find alternate transportation and study some of the blood alcohol calculators to have an idea of how high their BAC might be. If they think they are going to be below 0.04 then it is probably okay to do the portable breath test. If they think they are going to be 0.05 or higher, it is not recommended to take it.
Answer: The jury is still out.
If a person has been arrested for DUI in Georgia and taken to the police station to give a breath test, they will most likely give the breath sample on a machine called the Intoxilyzer 9000 made by CMI Incorporated. It is currently being phased into operation in Georgia, replacing CMI’s predecessor called the Intoxilyzer 5000.
One of the key problems that the defense has with these machines is a lack of understanding of its inner workings due to the trademarked, and therefore secret, software. All the defense knows is that a person blows into it and a number appears on the screen. The courts of Georgia have said many times that the defense attorneys representing clients should be allowed to have access to the software. However, CMI Incorporated is headquartered in Kentucky and the courts in Kentucky have backed CMI, ruling that they are not required to turn over that software.
The new 9000 devices are just beginning to learn about its accuracy and occasionally seeing some problems with the readouts reflecting inconsistent results. For example, if the person blows twice for no reason, the two readings will be widely apart from each other.
The blood alcohol concentration is not always an accurate reading of someone’s level of impairment because alcohol is a drug and people have different tolerance levels to alcohol. A novice drinker, someone who does not drink very many times, will often appear to be impaired at a 0.05 or 0.06 level. An experienced drinker, someone who has consumed alcohol several times over several years, would generally not show any effects at 0.05 or 0.06. So, the blood alcohol concentration is not always a reliable indicator of a person’s level of impairment.
Answer: The jury is still out
There is a big campaign in Georgia where the governor’s office of highway safety says that buzz driving is drunk driving. They are saying that if you are under the effects of alcohol at all, you fall under the category of DUI.
Georgia’s DUI statute refers to a person driving under the influence of alcohol to the extent that they are less safe to drive. That is very nebulous and often hard or impossible to quantify. When is a person less safe to drive — when they first feel the effects of alcohol or the just had a little bit of a wine with dinner? It is very hard to say.
Depending on a person’s alcohol tolerance level they may or may not show many symptoms of alcohol intoxication when they are pulled over. Increasingly, officers are relying on a test called the horizontal gaze nystagmus test. Nystagmus is an involuntary jerking of the eyeball, which can be caused by alcohol consumption.
Officers have people stand still and watch a pen move left to right. They are looking for the nystagmus or flickering of the eyeball. The test is important to the officers because it is not a test that a person can practice and it has nothing to do with the person’s tolerance level.
In contrast, the other common field sobriety tests, the one-legged stand and the nine-step walk and turn, are tests where the outcome has a lot to do with the person’s physical ability, age, weight, health, etc. The horizontal gaze nystagmus test is supposed to only detect alcohol concentrations.
In Georgia, a person could be arrested for driving under the influence even on private property. As a result, people have been arrested in golf carts on sidewalks. Basically, a person can be arrested if they are driving any motorized vehicle anywhere in the state of Georgia.
One misconception that people have is that by extension they can be arrested for just sleeping in their car. However, the offense of driving under the influence in Georgia requires that a person be driving or in actual physical control of a moving motor vehicle. For example, if a person goes in a bar drinks too much to drive, goes out to their car, says, “Wow, I shouldn’t drive,” gets in the car, starts the car, puts on the air conditioner, puts on the radio, and goes to sleep, under Georgia law that person will not have committed the offense of driving under the influence because the car never moved. The car has to go at least a little bit.
However, if that same person says, “Well I’m not going to drive home, but I’m going to take my car from this side of the parking lot and move it to the other side of the parking lot where it will not be in the way, and then go to sleep.” They have committed the offense of driving under the influence.
1) People think that if they put up a copper penny in their mouth when they take the breath test it will negate the machine from detecting the alcohol. False.
2) A DUI charge will be thrown out because they were never read their Miranda rights. False. Not being read Miranda rights is the rule, not the exception. Miranda rights only have to be read by an officer if he or she is going to question an individual after they have been placed under arrest. So while Miranda rights will come up from time to time in a DUI arrest, the fact that the officer did not read someone their Miranda rights does not automatically equate with a case being dismissed.