GA Alcohol DUIs Down, Drug DUIs Up?

From 11Alive: “Drunk driving arrests are down sharply after decades of aggressive enforcement while drugged driving arrests are climbing. That’s why Georgia has more than 250 officers with special ‘Drug Recognition Expert’ training. But the 11Alive Investigators discovered those ‘experts’ sometimes put innocent people behind bars.”

11Alive investigated a Cobb County officer with “DRE” certification who has had several drug arrests dismissed due to lack of scientific evidence. DRE stands for Drug Recognition Expert (although apparently law enforcement is trying to back off and claim the E stands for Evaluator). Some 250 Georgia officers, including those who work in Gwinnett, hold DRE certifications.

Some people are really nervous when they interact with police. And some people use marijuana. Most people do not. A blood test is far more accurate than a trained and experienced police officer’s opinion, no matter how much training and experience that officer has. Every human makes mistakes; police are human and should admit mistakes when they occur. Holding them to 100% correct decisions every time is unrealistic. But it’s terrible the three people highlighted in this special report had to suffer arrests, hire attorneys and convince prosecutors to dismiss their charges. While I’m not surprised that complaints filed against this officer were resolved in the officer’s favor, these falsely-accused citizens can never be restored to their pre-arrest status.

Ben Franklin said: “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.”

I agree.

ALS Hearings

The Georgia Department of Driver Services (DDS) has the right to suspend or revoke your drivers’ license while criminal (usually DUI) charges are pending if:

  • you took a breath test and the results are above the legal limit for your class of license, or
  • you refused to take a test at the officer’s request

During the hearing, an Administrative Law Judge (ALJ) will decide whether the police officer had a legal right to stop you and a legal right to arrest you.

This means that just about anyone who has a DUI charge needs to go to a hearing in order to get their license back.

If you took a test, the judge will also determine whether your test for alcohol content was legally above the limit.

If you refused a test, the judge will determine if you in fact refused, or whether you were justified in refusing to take a test. If the evidence supports the arrest and evidence against you, your license will be suspended.

It’s a good idea to bring your lawyer to this hearing.

Expungement for DUI in Georgia

I get hundreds of calls each year asking how a driver gets a DUI conviction expunged. In Georgia, an expungement is reserved for those who are arrested for a crime but never prosecuted for some reason.

  • If a formal charge is filed against you (an indictment or accusation), you cannot legally have that arrest expunged from your criminal record.
  • If you are originally charged formally with DUI and your attorney convinces the prosecutor to dismiss the DUI by entering a plea to Reckless Driving or some other violation, you cannot legally have the DUI arrest expunged from your record.
  • If you have been arrested and later acquitted by a judge or jury for that offense, you may have the arrest removed or pardoned by application to the Board of Pardons and Paroles.

There is no way to legally remove a DUI charge from your criminal record. Your record will be supplemented with the information of what happened in court:  dismissed, acquitted, convicted, pled guilty.

Don’t Consent to Any Search

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The Georgia Court of Appeals recently determined that a driver can implicate himself, simply by honestly answering Officer Friendly’s questions.

In State vs. Martin, deputies were responding to a noise complaint from a car.  They found the car, parked in a driveway, with Martin and his buddy standing outside it.  The deputy asked the men about the loud music and what they were doing. The deputy then asked Martin “if anything was in the vehicle that the deputy needed to know about or be concerned about.” Martin responded, “yes.” When the deputy asked what was in the car, Martin stated that there was “some marijuana and a pipe.” The deputy asked Martin to retrieve the items, and Martin produced a small bag containing a green leafy substance and a glass pipe and placed them on the roof of the vehicle. The officer then arrested Martin for possession of marijuana and possession of a drug-related object.

In this case, the deputy’s inquiry, which Martin was free to decline, does not even rise to the level of requesting consent to search, which itself would have been permitted during a first tier encounter. Merely approaching an individual to request consent to search does not constitute a seizure. Rather than terminate the encounter, as was his right, Martin offered an honest response to the deputy’s question.

What’s the takeaway? Don’t consent to the search. If you’re asked by Officer Friendly if there’s anything in your car he needs to know about, the answer is NO. If Officer Friendly hints that since you have nothing to hide, you certainly don’t mind if he looks in your car, do you? The answer is YES, I DO MIND.  NO, YOU MAY NOT LOOK IN MY CAR.  I DO NOT CONSENT TO ANY SEARCH OF ME, MY CAR OR MY HOME.

Honesty is the best policy, said Benjamin Franklin.  No, it’s not.  State v. Martin, A16A0512 decided August 2, 2016.