New Year’s Eve and Driving Under the Influence
By Eric A. Ballinger, Esq. and John A. Early, Esq.
Drinking and driving on New Year’s Eve has almost worked into iconic cliché in American society, however this year, like every other many people will go out to celebrate and just like every other year, law enforcement will be ready to catch those who choose to drink and drive. The best legal advice for the New Year’s Eve holiday is if you are going to drink, do not get behind the wheel of a car, period. There are many choices, selecting a designated driver who does not drink, taking a taxi, hiring a limousine, getting a hotel room, having a house party where the guests spend the night or even just staying home.
All of these choices may seem like an inconvenience, especially for the casual drinker, however the risks of a DRIVING UNDER THE INFLUENCE greatly outweigh any inconvenience. In Georgia, a DRIVING UNDER THE INFLUENCE is a misdemeanor criminal offense that carries with it mandatory jail time, community service and a driver’s license suspension, even for a first time offender. The legal blood alcohol limit is .08 grams of alcohol per cubic centimeter, which can mean as little two beers, glasses of wine or mixed drinks in an hour would be enough to go over the legal limit. Even the most casual of drinkers can be over the limit without being of even feeling drunk.
New Year’s Eve is the most risky time of year to be drinking and driving. Law Enforcement in Georgia steps up to the task of keeping the road safe this night of the year and they will be out in force with patrols and road blocks. They will keep an eye on all of the most popular watering holes thought the state in order to prevent the deadly accidents that occur when people choose to drink and drive. While is it is best not to drink and drive, here is a little of what to expect if you find that yourself pulled over and investigated for Driving Under the Influence.
Blue Light Special
If you see the flashing blue lights in your rear view mirror or you have pulled up to a road block, the most important thing to do is to stay calm. Under Georgia law, a police officer may pull your vehicle over if he has seen you commit any traffic violation or he has reasonable articulable suspicion that you have committed a crime. Georgia law also allows law enforcement officer in certain circumstances and with permission of their supervisors to set up road blocks to make checks for safety and possible violations of the law. If you are being pulled over, stop your vehicle on the side of the road at the nearest safe spot. If you are stopped at a road block, follow the directions of the officer and try to make note of everything that is going on around you. This could be important later on to determine if the road block was valid or not.
If you have been drinking and driving or if the officer suspects you have been drinking and driving understand you are not going to be able to talk your way out of it. The officer will not drive you home or let somebody come and get you, no matter how close to home you are. Law enforcement will conduct a full investigation and if they believe you have been driving under the influence, they will arrest you for DRIVING UNDER THE INFLUENCE and if they find that you have not, they will not charge you. It is important for you to understand all of your rights during this investigation as many of these rights will not be explained to you and you will have no opportunity to contact somebody who can explain your rights to you.
Smile, You’re on Candid Camera
It is safe to assume that from the moment you see the blue lights in your rear view mirror that you are being video and audio recorded. In the last twenty years, most every police car in Georgia has become equipped with a video recording gear. While these equipment varies from vehicle to vehicle and agency to agency, most police cars are equipped with a video camera that looks though the from windshield of the car and begins recording the moment the blue lights are activated. The officer in the car is normally wearing a remote microphone somewhere on his body to pick up the audio encounter between police officer and the citizen. Some cars are also able to record the video form the back seat of the patrol vehicle as well as the audio from inside as well.
What this means is that from the moment you are stopped, there will be a recording of everything you say or do while you are in the presence of this officer. This includes the way you walk, the way you talk and the way you behave. The video can be a double edged sword. While it allows a jury to objectively consider how you were acting on the night in question, it allows a jury to objectively consider how you were acting on the night in question. It si best to be polite in dealing with the officer and to speak as little as possible. The less said and done the better the video.
It is normal for a police officer to ask a subject of a DRIVING UNDER THE INFLUENCE investigation to perform some field sobriety tests to help them determine if you are under the influence of alcohol. The one thing they rarely tell those under investigation is that these tests are voluntary. That is right; the subject of these tests does not have to perform them. Most do not question the officer because they feel that they can walk the straight line or stand on one leg and the officer will see that they are not drunk. These tests are not that simple. They are a series of divided attention task with a complex grading system. When coupled with the video, these tests are just part of the officer’s tool kit to make his case against you for DRIVING UNDER THE INFLUENCE.
The problem is that there are a number of other factors that could affect your performance of these tests. These include weight, bone and joint problems, motor skills and just plain nerves. Many police officer’s stand in front of a mirror at their home to practice these same tests that they will ask you to perform in the dark alongside of the road. Give careful consideration of the rights you are giving up when you agree to perform the field sobriety tests.
One of the most controversial of the field sobriety tests is the Horizontal Gaze Nystagmus Test. This seemingly simple test of the eyes is anything but. The test is much more that a test to see if your eyes will follow the officer’s pen but a test of the involuntary eye movement. This is a very complex test that can give a trained officer a lot of information. Some officers are even able to accurately estimate blood alcohol concentration based on the performance of this test. However this is a very technical test and is only to be performed to some very demanding standards. Also, it is very subjective as the results cannot be viewed on video are up to the officer’s interpretation alone. Just like all of other field sobriety tests, this too is voluntary.
Normally, the last sobriety test the officer gives before making a determination to arrest is the preliminary breath test or Alco-Sensor. This is a hand held device that most officers carry in their car. The results of this device are not admissible in court except as to determine if the subject is positive or negative for alcohol; however, it will give the officer a numeric reading as to the blood alcohol concentration. Generally the officer will not disclose the actual reading except whether you are positive for alcohol.
Like all of the other sobriety tests, the Alco-Sensor is yet another tool the officer uses to build his case for driving under the influence, yet this device has its shortcoming. It has none of the fail safes that the State Administered breath test does to prevent false readings. Like all other sobriety testing, this test is also voluntary and there are no legal consequences for refusing to take this test.
Sobriety testing is a tool used by a police officer ostensibly to investigate his case against you for driving under the influence, however the officer has already made assumptions and judgments about whether or not he will arrest you based on any number of subjective criteria to include the odor of alcohol, the way you talk and the way you walk. The field sobriety tests are really a tool to allow the officer to build a case based on more objective criteria so he can make better articulate if you are driving under the influence of alcohol to the extent that you are less safe to drive. While you are free to refuse this testing, the officer will most likely tell you that unless you successfully complete his tests, he already has enough evidence to arrest you for Driving Under the Influence. If this is the case, the field sobriety testing is only going to offer the officer objective data to substantiate his subjective opinion and performing the tests will not change the inevitable next step.
Please place your hands behind your back, you are under arrest.
If you find that you have been placed under arrest for Driving Under the Influence by the officer, the best thing you can do is stay calm. That is easier said than done. Being arrested is a very emotional experience, but if a police officer has made the determination that you are driving under the influence of alcohol to the extent you are less safe to drive otherwise, then he has no other choice to place you under arrest and take you to jail. No amount of pleading with change this next step and you need to remember that you are still most likely on video. You actions at this time will be subject to scrutiny to determine if you were in fact under the influence.
If you are arrested, the officer will handcuff you and place you in the back of his patrol car. In many police cars, there is video camera and a microphone recording what transpires. Unless there is somebody on the scene who can take your car, it will be inventoried and taken by a tow truck to impound. If there is anything valuable in your car, it is certainly best to entrust it to a passenger. If there is anything else illegal in the car, it too may be confiscated and additional charges may come from that as well. The most important thing is to remain calm thought the process and not say or do anything that could further incriminate you, even if the officer is no longer in your presence.
Will you submit to a State Administered Test?
If you are arrested for Driving Under the Influence, the officer will advise you of you implied consent rights, usually from a card the carries in his pocket. This is a very confusing but important step in the process. State law dictates word for word what the officer must advise you of you implied consent rights at the time you are arrested. Since the officer knows he is being recorded, he is not allowed to paraphrase those rights and the law does not give you the opportunity to call a lawyer before you decide whether or not to submit to the State Administered Test. There are real consequences regarding the outcome of your case that will come from your decision.
Under Georgia law, if a police officer has enough evidence to place you under arrest for Driving Under the Influence or you have been involved in a serious accident, that officer can request that you submit to a State Administered Chemical Test of you blood, breath urine or other bodily substances to determine if you are under the influence of alcohol. If you take the test that the officer requests of you, you are entitled to an independent test of your blood, breath urine or other bodily substances by qualified personnel of your own choosing. That means you can get an independent test from people you trust and the officer has to make arrangements for you to get this test, even if it means taking you to the nearest hospital. However, you must take the State Administered Test first.
If you refuse to take the State Administered Test, or the State Administered Test result shows that you have a blood alcohol concentration over the legal limit for your age, your drivers license of privilege to drive in the State of Georgia can be suspended. While most officers will not always write up the suspension if the test is over the legal limit, they certainly will for a refusal to take the test. The administrative license suspension process is separate from the criminal prosecution for Driving Under the Influence and is handled through the State Office of Hearings and Appeals. If the officer starts the suspension process, he will hand you a document that will serve as you driver’s licenses for the next thirty day. Unless you appeal that suspension within the time allowed, generally ten business days, you license will be suspended at the end of the thirty days.
The decision whether or not to take the State Administered Chemical Test is a choice that must be weighed carefully. On one hand, it is very difficult for the government to prosecute a Driving Under the Influence case without a test result, despite the fact that they can use the fact that you refused to take the test. On the other hand, the possibility of losing your driver’s license while the criminal charges are pending can be a very serious consequence in and of itself. In cases where you have not been drinking or been drinking very little, the test result may actually exonerate you or least mitigate the consequences. This is one of the most serious decision you will have to make and you will have to make it very quickly.
In most cases, the officer will select the breath test as the State Administered Test as it is usually the quickest and most expedient means. In Georgia, this test is performed on the Intoxilyzer 5000. This model of this device sold to law enforcement agencies in Georgia is manufactured to specifications set by the Georgia Bureau of Investigations Division of Forensic Sciences. The Intoxilyzer 5000 is designed to measure deep lung breath as a reflection of blood alcohol concentration. While breath testing has always been very controversial, this is method is very expedient in that it is easily administered and gives the operator a printed read out in a matter of minutes. The device is equipped with a number of fail safes that are designed to prevent false readings, including picking up mouth alcohol such as a recent swish with mouthwash. Despite this, the controversy is that that fail safes may not rule out certain chemicals in the blood that can mimic alcohol chemically but do not effect intoxication. In taking the breath test, the device requires you to blow very hard to give two breath samples. The device knows when it has enough air for a reading based on air pressure so there is no sense in trying to fool the device. If you are not able to produce a sufficient breath sample, the officer will write up the test as a refusal, which could cause a suspension of your driver’s license.
Blood and urine testing are still considered the most accurate, but these tests require law enforcement collect samples from medically qualified personnel and send the samples to the State Crime Lab for testing. This can take several weeks for the test to come back. Also, these tests can also determine if the subject has consumed other illegal substances. Law enforcement will select these tests if they believe that there are other intoxicants that the subject may be under the influence. You have the right to request a blood or urine test at your own expense if you believe that State Administered Test is inaccurate or incorrect.
If you have been arrested for Driving Under the Influence, as soon as you are released from custody, make an appointment to speak with an attorney experienced in handing these cases. There are certain actions that need to take place in order to protect your liberties as well as your driver’s license, but those actions are time sensitive. Driving Under the Influence is very serious charge that the government and its lawyers prosecute expeditiously and ardently. The consequences of this arrest can affect your liberty, your job, your family, your driver’s licenses and your insurance rates. A trained and experienced lawyer can best help you navigate facts and circumstances of your arrest as well as the possible consequences and help you get the best result.