What exactly is a DUI?
It's a question people would think bears an obvious answer. Most non-lawyers know that the letters DUI stand for “driving under the influence”, but beyond that, just like most things concerning the legal system, it gets a bit more complicated. There are actually 6 different types of DUI in Georgia. There's:
- Being under the influence of alcohol to the extent that you are less safe to drive.
- Being under the influence of any drug to the extent that you are less safe to drive.
- Intentionally being under the influence of any glue, aerosol, or other toxic vapor to the extent that you are less safe to drive.
- Being under the combined influence of any two or more of the above to the extent that you are less safe to drive.
- Having a blood alcohol content of 0.08 grams or more at any time within three hours after driving or being in actual physical control from alcohol consumed before driving or being in physical control ended; and
- Having any amount of marijuana or controlled substance present in your blood or urine, or both regardless as to whether alcohol is present in your breath or blood.
So you see, there are numerous scenarios in which you could be arrested and charged with DUI.
How can one beat a DUI if they fail a breathalyzer, field sobriety test (FST), and even a blood test?
First of all, obviously every DUI case is different, and the facts can vary widely from one case to the next. However, there could be many ways to defend a DUI case before the breathalyzer, FST, and blood test even comes into play.
A good DUI attorney will meticulously examine all the available evidence prior to mapping out a strategy to defend your case. That means determining if in fact your constitutional rights may have been violated, i.e. if you violated no traffic laws and the officer had no other reasonable suspicion to stop you, then there's a good chance that any test or evaluations subsequent to the stop could be thrown, in which case goodbye. The case goes away!!!
What if the police had reason to pull me over and I failed a FST, a breathalyzer, and even later failed a blood test. Is there any possible way to avoid a DUI conviction?
A huge misconception among the general public regarding DUI charges is, with this type of evidence against you it's impossible to beat so you may as well plead guilty. Truth be told, it's not easy to get a not guilty verdict with this kind of evidence against you. But, each type of evidence listed above can be successfully challenged and used as a negotiating tool to get your charges reduced or in some cases dismissed altogether. The following is just a few of the problems with each of these tests that could mean a dismissal of your charges or a not guilty verdict:
Field Sobriety Test – this is a battery of 3 tests performed during a traffic stop in order to determine if a driver is impaired. The 3 tests that make up the FST are the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests. Developed in the 1970s, these tests are scientifically validated, and are admissible as evidence in court in a majority of states, including Georgia.
One word basically sums up why this test is always vulnerable to defense challenges, “SUBJECTIVE”. Yes, the tests are “scientifically” validated, however, there are many sober people who simply could not pass a FST due to existing medical conditions such as arthritis in various joints such as the knees, ankles, and hips. And of course, there's always a question as to whether the officer properly instructed the driver how to perform the tests and whether he accurately observed and interpreted the drivers' performance. The officers' interpretation is 100% subjective.
Breathalyzer – There are many different reasons why a breathalyzer may produce a false-positive. Acetone, for example, is in the breath of an average person. However, diabetics experiencing hypoglycemia may have higher levels of acetone on their breath and could receive a false reading of 0.06% or higher. Many types of mouthwash contain ethanol, which is the same type of alcohol found in alcoholic beverages. If you're stopped by an officer after using mouthwash, it's very possible to blow a false positive on a breathalyzer test.
Finally, breathalyzers are very temperamental devices and must be calibrated regularly to ensure that they are working properly. If a device was not properly calibrated at the time of your test, the results can be dismissed as evidence against you.
Blood Test – most people think that a blood test above the legal limit for a DUI would seal the case against the defendant. As long as there are humans involved in the blood draw and testing process they are subject to scrutiny that could result in the blood evidence thrown out in your case. For example, the blood collection kit, which must be provided by the officer, has an expiration date and it must not have expired prior to it being used to collect your blood. Additionally, the only items that can be used in the blood alcohol test are those found in the kit.
Finally, once the blood sample is taken, just as with any other physical evidence, there is a strict chain of custody that must be adhered. If at any point the blood evidence cannot be accounted for it brings into play reasonable doubt, and it may be enough to have your case dismissed altogether.
Attorney Fleming is not interested in helping you plead guilty to your DUI charge, no one needs to pay an attorney for that. What he will do is meticulously examine every angle of your case and scrutinize all available evidence to achieve the best possible outcome, up to and including taking your case to trial to argue your case.