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A Criminal Defense Law Firm

Archive for the ‘DUI’ Category

Saying Goodbye

Today is officially my last day interning at The Semrau Law Firm. This month has been a journey filled with tasks ranging from completely updating the website and social media to writing a Petition for Writ of Certiorari to the Supreme Court. I started off this internship thinking I would be getting coffee and making copies for everyone in the office, but that picture was completely obliterated as soon as I walked in the door.

The first day I walked into the office, Scott and I sat down and he gave me a to-do list with at least fifteen different assignments ranging from updating all the website content to writing a daily blog to enhancing all our social media. And on top of this list, every day I came to work Scott and I would spend the morning in court, and then in the afternoon he would give me at least three more tasks to complete. These tasks ranged from researching information for clients to calling different lawyers to set up appointments. But the most interesting, and probably most difficult, was when he asked me to write a Cert Petition.

A Cert Petition is a document a losing party files with the Supreme Court, in our case the Georgia Supreme Court, asking the Court to review the decision of a lower court. It includes a list of parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ. One afternoon Scott dropped me off at the office and told me he had a Cert Petition due at five that night and I was going to write the first draft. He gave me all the previous briefs and documents and the court’s decision and told me to see what I could do in an hour. I have never heard of any other intern my age getting remotely close to being assigned a project like this. When he first told me what he wanted me to do my jaw dropped, but once I calmed down a bit I realized this was one of the most amazing opportunities I could ever have at this age. As the nerves faded away I began to write, and soon realized I was learning more about the law by doing than I ever would by watching or researching. This was just one of the crazy, but amazing, tasks Scott gave me.

One thing I learned about writing is that under all the fancy lawyer words and legal phrasing, we always need to ask: “What was unfair? – What happened to the client that was unfair?” In this case our client appeared at his arraignment, requested an appointed lawyer and was denied. He was immediately arraigned pro se, without a lawyer. At no time did our client waive his right to counsel nor did the Court make an inquiry into the reason why the Defendant did not have counsel. Once the Defendant hired us, the judge said it was too late to file any motions. According to O.C.G.A. 17-7-110, all motions in a criminal case must be filed within ten days of arraignment. We argued that the judge should’ve given our client an extension since the arraignment was legally insufficient without a waiver a counsel, and therefore, the mandate should not have been imposed on our client. We thought it was unfair to require a non-lawyer with a high-school education to write and file his own legal pleadings. Honestly, our client didn’t even know what a “Motion” was supposed to do. We argued that telling the client that he was supposed to file his own motions within 10 days was the same as telling a drowning man that he might want to take swimming lessons! That doesn’t sound fair at all. Now we have to wait for an answer as it usually takes eight or nine months to get a response from the Georgia Supreme Court.

To finish up my last blog post, I want to give a huge thank you to everyone who helped me along the way. Like Scott puts it, being a lawyer isn’t rocket science, but from my experience, I promise you it isn’t as easy as it looks. First, I want to thank Scott for giving me this incredible opportunity. Throughout the month everyone in court kept reiterating how lucky I was to have an internship with Scott, and they were right. I have learned more than I could ever have imagined. I know his goal was to deter me from ever even consider law school, but he did the opposite. It was so interesting to get a back stage look at what lawyers do, and I can’t wait to continue down my pre-law path. Second, I would like to thank Michael. Along the way whenever anything got a little too overwhelming Michael would always step in and help. I would have never been able to make it through all my to-do lists without his help. It was also fascinating to shadow Michael a few times and hear his perspective on being a defense lawyer. Third, I would like to thank Tomeca for all of her help along the way, especially answering all my inane questions. Whenever I had a problem, I knew I could count on Tomeca to know the answer and not get annoyed with how ridiculous I sounded. I don’t think I could’ve made it through this month without her help. Fourth, I would like to thank our officemates Cleve and Pam, and everyone else I met this month who offered me advice and an invitation to reach out to them in the future. This month has been one of the most fascinating months of my life and I can’t thank The Semrau Law Firm enough.

Teaming up with the Enemy: Boss Bombs the Field Sobriety Test

In the movies, the relationship between prosecutors and defense attorneys is always a nasty association between two people who seem to dislike each other. In some areas of law this portrayal possesses some truth; however, criminal law is one area where this depiction is rarely true. In criminal law, some prosecutors and defense attorneys are even friendly enough to get drunk together–well, at least the prosecutors get the defense attorney drunk.

That’s exactly what happened a few weeks ago, when two prosecutors from the Cobb County Solicitors Office and a City of Kennesaw Police Officer were kind enough to join Scott in teaching his Criminal Law Class at Chattahoochee Technical College. State DUI prosecutors Cara Convery, Esq. and Adam Abbate, Esq. taught the class about driving under the influence, while Scott prepared to assist in the demonstration of DUI field sobriety test by getting thoroughly intoxicated (a true sacrifice, I’m sure). The prosecutors instructed the class on the when an Officer can stop a motorist and perform a DUI investigation and on the specific DUI penalties.

Officer Wood from the Kennesaw police department lent his expertise and administered the three standardized tests on Scott. The Standardized test consists of the walk and turn test, the one leg stand test, and the horizontal gaze nystagmus test. The walk and turn and one-leg stand tests require you to first listen to instructions and then perform the tasks. The horizontal gaze nystagmus test checks the involuntary jerking of the eye. Scott has cross examined Officer Wood in Court many times, so I’m sure the Officer enjoyed the opportunity to use Scott to demonstrate the “validity” of DUI field sobriety tests. So what was the result? Scott said the tests were hard to perform correctly after drinking four, 12 ounce, high alcohol beers in under one hour. He definitely would not recommend driving under those circumstances. Officer Wood declared Scott an unsafe driver and nobody in the class disagreed! Mr. Abbate was nice enough to offer Scott a ride home!

The consequences of driving under the influence usually consist of license suspension, fines, jail time, DUI school, and increased insurance rates. This chart expands on the specific consequences of driving under the influence.

According to the research concerning DUIs and the field sobriety test, the walk and turn test is accurate 68 percent of the time, the one-leg stand test is accurate 65 percent of the time, and the horizontal gaze nystagmus test is accurate 77 percent of the time.
I asked Scott if his experience changed his mind about field sobriety testing and he said “no”, he still believes that field sobriety tests are designed for failure. These tests are standardized, meaning all tests are administered and graded the same for every person. But everyone knows that no two people are the same. For example, he described a recent case where the officer failed the tests because he didn’t follow his own training when administering the tests. In that case, our client was very overweight and the officer still required him to perform the tests without a coat even though it was raining and very cold.
In the class, the students were able watch the tests performed on Scott and then were instructed to administer and perform the field sobriety test on each other. At the end of class, the students were the big winners and we want to thank the prosecutors and Officer Wood for their assistance. The students came away with a first-hand perspective on field sobriety testing and they were very impressed with the skill and professionalism of the prosecutors and police officer. The students declared the class—best class ever!

To read about other defenses we use and learn about why The Semrau Law Firm should represent you in a DUI case, visit our DUI website.

How did you do that? DUI reduced for high-speed motorcycle rider.

If I told you about a DUI case that involved the high-speed chase of a motorcycle and a blood alcohol content almost twice the legal limit you would probably expect a sure conviction for the defendant.  Take a look at this police report and read how we were able to avoid a DUI for our client in this case.

Police Report

When I first read this report I was not optimistic.  Popping a wheelie in front of an officer never ends well, but there were a few specific things that concerned me.  First, our client could easily have been charged with a felony for attempting to elude the officer.  Georgia law states that anyone who attempts to elude an officer by going more than 20 miles per hour over the speed limit has committed a felony.  In the report the officer estimates our client’s speed at 130mph, well over the felony threshold.  Just because the officer didn’t charge him with the felony, that didn’t mean the court prosecutor couldn’t add the charge once he got the case.  Second, our client agreed to take the State’s breath test and blew a 0.14, almost twice the limit of 0.08.  In my experience breath-test cases are rarely, if ever, reduced.

Taking the report at face value anyone might be discouraged.  Even the client had given up.  But I got a copy of the video from the officer’s car and as is often the case, I found a defense I knew I could use to help my client.

When I watched the video what really stood out to me was that the officer read my client the Implied Consent Warning and asked for a breath test immediately after getting him off the motorcycle.  Then a few minutes went by before he came back to my client and informed him he was under arrest for DUI and reckless driving.  Georgia law clearly states that the Implied Consent Warning must be read after a suspect has been placed under arrest for DUI.  Seeing this I knew I could probably have the breath test excluded from the evidence in this case.

Without the breath test there was no other evidence of intoxication.  Go back and look at the report, the officer did not give my client any field sobriety tests.  The other thing that struck me about the video was how polite and apologetic my client was to the officer.  Believe it or not the client’s conduct towards the arresting officers often comes up in plea negotiations.

On my client’s next court date I filed a motion to suppress the evidence of the breath test and discussed the error in the Implied Consent Warning with the prosecutor.  He agreed to dismiss the DUI charge and my client pled guilty to reckless driving.  Considering the potential for a felony charge, this was a great result for my client.

Even when a case appears open and shut, a careful review of the evidence can uncover a defense that can lead to a much better result.

Michael Burns accepts all criminal defense cases including DUI, felony, misdemeanor and traffic tickets in Cobb, Cherokee and other metro Atlanta counties and cities.

HOW DID YOU DO THAT? Officer’s Mechanical and Biased DUI Investigation Leads to 3 NOT GUILTY Verdicts.

This is our second installment of How Did You Do That? If you missed the first, check it out below.   I started writing this series of blog posts after my students, friends and colleagues saw the police reports from recent case wins.   So, while protecting the privacy of the police and our clients, we’ve decided to publish the actual police reports from our cases and describe how we achieved the result.  This week we won a jury trial where our client was charged with DUI by Alcohol, DUI by Drugs and DUI by a Combination of Drugs and Alcohol.  The client was only convicted of Failure to Maintain Lane.  His sentence was a $100. fine and our client walked out of the courtroom with a huge smile on his face!!  Click here on this link to read the Police Report:

Police Report

So, as you can see, this report describes a stoned, drunk and very intoxicated driver.  Look particularly at the field sobriety test sheet and note that our client failed the Horizontal Gaze Nystagmous Test (HGN), the Walk and Turn Test and the One Leg Stand Test.   These three tests are the “holy trinity” of standardized DUI field sobriety tests.  Officers are taught to do these tests in every case.  According to the National Highway Traffic Safety Counsel, a person who fails all three tests can be accurately classified as a drunk driver over 90% of the time.  Unfortunately, the police cruiser video proved that the officer accurately recorded his observations in the police report.  Added to our burden was a prior DUI conviction that the client had just five years previously.

A bad police report is not the end of the case because we never accept a police report as “the truth.”  Even if the police report contains accurate facts, the officer may have left out many important facts that suggest innocence, and the Officer’s conclusions may not be the only rational conclusion.  In this case, as it turned out, the truth was actually in the police report.  Our client had told us that he smoked pot and consumed alcohol, but he smoked a very small amount several hours before driving and the beer he was drinking was a very low alcohol “light” beer.  He sincerely believed that he was a safe driver.  He also told us that he was so nervous, that he was unable to complete the tests properly.  With that in mind, look at the Officer’s written narrative, and you will see that the Officer specifically noted that our client’s “hands and legs appeared to be shaking.”  He attributed this to marijuana or drug use.  However, look on the Driver Impairment Form and you will also see that the client also performed the Romberg Test.  My opinion of the Romberg Test is that it is complete BS, but according to the police, a person under the influence of marijuana should not be able to pass this test—but according to this police report, our client had a perfect score on the Romberg Test!

So now you’re probably getting the idea– our defense was that the police officer only saw what he was expecting to see, and that DUI arrests had become so routine for him, that he failed to see the obvious:  that our client was a perfectly sober, and also a very nervous driver.   The complete inconsistency between the Romberg test and the conclusion of marijuana intoxication was our opening.  From that opening we were able to demonstrate consistencies between our theory of nervousness and all the circumstantial evidence of intoxication.  For example, the client did not have slurred speech but he did stutter and his knees were so wobbly that he couldn’t stand on one leg.  Thus, the facts initially pointing to intoxication were in fact proof of nervousness, not drunkenness.

One big problem for us was that the client’s failure on the HGN test was inconsistent with our Defense because the HGN test should not be affected by nervousness.  However, we filed a pre-trial motion to exclude the HGN test based on the Officer’s improper administration of the test and the Judge granted the motion and excluded the HGN test from trial (very cool judge!).

The client testified at trial that he believed he was sober and his poor field sobriety performance was a result of a life-long case of shaky knees caused by nervousness (imagine your 8th grade class presentations).  The Jury deliberated for about four hours.  Apparently they were not deadlocked on the DUI, but rather on whether to convict for Failure to Maintain Lane!  We very much enjoyed hearing all three “not guilty” verdicts!

Scott Semrau is a Marietta DUI Defense Lawyer and a Major Felony Trial Lawyer.  The Semrau Law Firm is a Cobb County criminal defense law firm.   We accept all Cobb County traffic tickets, and all misdemeanor and felony offenses.

HOW DID YOU DO THAT? Officer’s Tainted Credibility Leads to DUI Reduction

Check out this police report from a recent case we defended.  Many people ask us whether we really can get a DUI reduced.  Our answer is yes, overall, we win about 70% or 80% of our cases.  So we’ve decided to post actual police reports and describe “how we did it.”

Click here to view Police Report.

In this case our client had a prior DUI conviction 11 years before the current arrest.  Read the report and you’ll see this is a refusal case, where the client refused to take the state requested breath test.  Without a breath or blood test, the prosecutors were forced to rely on the evidence of bad driving, the field sobriety tests, the officer’s personal opinion, the defendant’s statements and any other circumstantial evidence to prove that the Defendant was a “drunk driver”.   This is an important point to remember:  it is not illegal to drink and drive in Georgia, which is to say that having a couple of drinks and then driving a car is not illegal.

I am old enough to remember when it was legal to actually drink and drive at the same time in Georgia.  I clearly remember back in the 80’s, when I was 19 years old, stopping at the convenience store on the way home from work and grabbing an ice cold beer and drinking it as I drove home.  It was very popular for convenience stores to place huge barrels of iced beer right by the cash register, hoping to entice drivers to grab one for the road.

Without a breath test it is very difficult to prove that an individual is a “drunk” driver as opposed to a “drinking” driver.  In this case, the police report describes a very drunk driver—unable really to do anything right.  But when we subpoenaed the video from the police cruiser, we discovered that the client actually did not appear to look or sound intoxicated.  The officer had clearly exaggerated his case in the police report.  It makes sense, because that is just “human nature,” that an officer will try to write a report that supports his actions—everyone likes to be right!  But in this case, the officer’s report what so lopsided that it compromised his objectivity and ultimately made him a clearly biased witness.

The prosecutor did not want to present the case to the jury with an officer whose credibility would be seriously challenged.  So, he offered us a reckless driving reduction and we strongly encouraged our client to accept and he very happily agreed!

We accept DUI cases in all Atlanta and North Atlanta metro Courts.  Atlanta, Fulton County, Cobb, Smyrna, Marietta, Cherokee, Douglas, Dekalb and Decatur.

Cobb County DUI Court Hits Its Stride – Is DUI Court Right for You?

This week, one of our clients is graduating from the Cobb County DUI Court and he will finally put his DUI conviction in his past.  As DUI Court is a relatively new option for resolving DUI cases, I thought this event presented a good opportunity to talk about the Program and when it may be a good option.

My general impression of the Cobb County DUI Court is very favorable.  The Court team is pretty amazing in their commitment to the individuals in the program.  They genuinely seek success for participants and want them to complete the program.  I would describe the team as highly competent and very much invested in the success of the program.  Dollar for dollar, it’s the best treatment value in town.

Historically, like most DUI Courts, the Cobb Program is young, just five years old.  Over the past five or so years, participation in a DUI Court Program has become an option for almost every person facing DUI charges in the Metro-Atlanta area.  The DUI Court Programs are located only in the County State Courts, but even if a case is in a municipal court, or the Defendant lives in a location that does not have a DUI Court, it is often possible to transfer the case to nearest DUI Court Program.  The idea behind these special courts was to reduce recidivism among repeat DUI offenders.  DUI research statistics show that while most DUI offenders commit one offense and never repeat, a few individuals will be arrested multiple times for DUI—thus a small group of individuals is disproportionately responsible for a large number of DUI events.  Even though the severity of punishment continues to increase with the number of convictions, punishment alone was found to be highly ineffective at breaking the cycle of repeat offenses.  To break the cycle, DUI Courts use their sentencing power to require treatment and rehabilitation and reserve their punishment power as a sanction for non-compliance with rehabilitation.

The typical DUI Court is more likely to resemble a rehabilitation center that a courtroom.  A common schedule for participants includes four or five events each week such as group counseling, meetings with DUI Court staff and Alcoholics Anonymous meetings.  Drug and Alcohol testing is mandatory and frequent.   While there is still a judge and a prosecutor, these individuals play a smaller role, as DUI Courts are (at least in theory) non-adversarial.  Participants will have much more contact with the DUI Court counselors and substance abuse treatment specialists.   Most DUI Court programs can be completed in 12 to 18 months.

For the individual offender, the major benefits of the DUI Court is substantially reduced jail time, early return of driving privileges and reduced community service.  The disadvantages are the time commitment and the cost, both of which are typically higher than just pleading guilty.  Arranging transportation to and from events can also be difficult for the first few months of the court program, but most DUI courts assist their participants in obtaining early return of driving privileges.

My personal complaint with DUI Court is that they involve a tremendous commitment of time without a corresponding legal benefit.  Add

itionally, even successful participants can have their probation revoked for failures and spend time in jail for minor violations of program rules.  I applaud the recent law changes for 2nd in five suspensions, which allows return of driving privileges for DUI Court participants after just four months instead of the previous 12 months.  But I would like to see our legislature go further by providing for conditional discharge or record expungement for those individuals who successfully complete the program:  personal satisfaction aside, show me the money!

When recommending the program to a client, I will typically advise them about the program, but I don’t encourage participation unless there is some real benefit such as substantially reduced jail-time or reduced or dismissed charges.  Keep in mind that a typical sentence for a repeat DUI offender after jury trial can easily be 6 months to one year in custody without the benefit of good-time credits, work release or other early release programs.  So if the chances of success at trial are low, DUI Court may be a good option as the term of incarceration is dramatically reduced – often to just a few or even no days in custody.  For our client just graduating from DUI Court, participation in DUI Court saved his job and his marriage.  His case ultimately proved too risky for trial as the risk of loss and an extensive jail sentence were high.  For him, it was a good option.

Here are the some cool Cobb County DUI Court Statistics:

Total number of participants admitted since 10/28/2008 ………………… 194

Number of current participants ……….………………………………..….. 57

Number of graduates as of March 31, 2013……………………………….. 113

Number of participants terminated from program since inception ….…… 24

Retention rate………..………………………….……………….………. 87.6%

Highest participant blood alcohol content at the time of arrest ……..…… .455

Average blood alcohol content for all participants ………………………… .21

Recidivism rate among graduates (repeat DUI offenses).………….…….. 1%

Expected recidivism rate among non-participants………………..……….24-35%

Cost to house an inmate in the Cobb County jail for one week ….……….. $364

Cost per week to participate in DUI Court – paid by the participant……… $75

Judge Melody Clayton is the presiding judge of the Cobb County DUI Court.  The management team is headed up by Emily Keener, Esq. and Darcy Miller.  The State probation representative is Tiffany Cox.  Here is a link to some basic information about the Cobb County DUI Court: http://w2.georgiacourts.org/gac/files/Program%20Info%20-Cobb%20County%20DUI.pdf

And here is a link to the DUI Court Handbook:  http://w2.georgiacourts.org/gac/files/Handbook%20rev%209-26-10%20-Cobb%20County%20DUI.pdf

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The Trial of the Total Refusal Case: Not Guilty in Fulton Part I of 4

Introduction

A “total refusal”  DUI case refers to the type of DUI case where a person refuses to answer any questions about consumption of alcohol, refuses to participate in any field sobriety tests and then refuses to take the official blood or breath test requested by the Officer.  Among DUI lawyers sometimes we refer to a total refusal case as a “No, No, No” case.  I recently had the opportunity to try one of these cases and I thought it was worth sharing the experience.  It took the Jury about two hours to reach a verdict of “not guilty” on all counts.  First, here is the redacted police report:

Police Report

As you can see, my client was charged with Failure to Maintain Lane and DUI.  For starters, Failure to Maintain Lane (FTML) is a constant companion to DUI.  Especially among DUI Task Force Officers, FTML is an extremely popular basis for an initial stop of a vehicle and in my opinion it is almost always a false charge.  As an aside here, I often like to ask Jurors first, how many of them have had a ticket (they all raise their hands) and then ask how many of them have received a ticket for FTML (nobody raises their hands).  This question illustrates a point that I will come back to in closing argument:  DUI Task Force officers play a numbers game.  Their protocol is to stop as many cars as possible, for even the smallest offense, because they will sooner or later come across a driver that has consumed alcohol.  Once they do, then arrest is a forgone conclusion.  The odds are in their favor as they typically work an area late at night that has lots of restaurants and bars.  So in this context, FTML is a classic trumped up charge.  People aren’t commi

tting any more FTML offenses, it’s just that the Task Force Officer is looking for any basis to stop vehicles and FTML provides a good excuse.  Task Force Officers especially like this charge because it is difficult to challenge as a basis for an initial stop and of course it is ubiquitous—everybody switches lanes without using a blinker and everyone occasionally drifts to the left or right while driving.  Moreover, it can be easily spun to support a charge of drunk driving:  “He was so drunk that he couldn’t keep his car within one lane.”

Moving on, as you can see from the police report, the primary charge against my client was  DUI.  The first thing I would say about a Total Refusal is that this is a trial like all trials, which is to say that most things true elsewhere are true here also.   Thus, a good defense (1) uses all phases of the trial to present and further the theory of the case and (2) tells a story of actual innocence.

Actual innocence is something that defense lawyers too often forget.  I appreciate that the defense has no burden of proof and the State bears all the responsibility for proving guilt beyond a reasonable doubt.  But I am a believer in presenting a case for actual innocence—not just invalidating the State’s case.

So, in my case, our theory of the case was that an overzealous DUI Task Force officer erred on the side of arrest when in fact he had no real evidence of drunk driving.  But our story for actual Innocence was that our client, a professional poker player, was at a bar for three hours working at the game of poker and was not the slightest bit intoxicated.  The observations of the DUI Task Force Officer such as red eyes, smell of alcohol, and three hours at a bar, were in fact by-products of the poker business, not clues of alcohol impaired driving.

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WOW!!! Expungement for Georgia DUI Covictions Pending in Legislature

Driving Under the Influence is a serious offense.  Having a DUI conviction on your record carries serious consequences that last much longer than your time in jail or period of probation.

Three cheers for Representative Rusty Kidd from Milledgville, who proposed a law that would give one-time offenders a second chance.  House Bill 799 would allow for the expungement of a DUI conviction after 5 years if the violator has had no more driving offenses within that time period.  Check out this link for an Atlanta Journal article:  http://www.ajc.com/news/georgia-government/dui-record-could-be-1316786.html)

Currently, there is no relief in Georgia from a DUI conviction being on your criminal record.  Not a day goes by when we don’t get a call from a person who recieved a Marietta DU

I or an Atlanta DUI and now wants to clear their record.  The problem is that even if the offense was 5, 10, 15, or more years ago, offenders can be denied jobs, scholarships, or other considerations based upon their record.  Often, these people were not aware of the impact of a conviction and entered a guilty plea without the advice or guidance of qualified legal counsel.

Georgia law currently allows for first-time offenders of nearly every other crime imaginable to have their offense expunged from their record.  Folks, this is a great opportunity to get involved.  Contact you local state representatives and tell them that a DUI should be treated just like any other offense.  Here is a link  to find out how to contact your local state representative: http://www.congress.org/congressorg/officials/congress/

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Forced Blood Draws for a Misdemeanor Crime is Cops Gone Wild

Apparently it’s not enough to take your money, now the Federal Government wants your blood.  Don’t laugh, nine States including Texas, Arizona, Florida, Idaho, Illinois, Kansas, Louisiana, Missouri, and Utah want your blood too.  A Twilight sequel?  No way, this is real life because the Federal Government has started a new initiative encouraging States and local governments to adopt a “No Refusal” policy when it comes to DUI breath or blood tests.  So far, only the Georgia State Patrol and the Douglas County Sheriff’s Office are following this new initiative.

For the record, I think this new policy is cops gone wild.  The idea behind this new policy is that DUI is such a huge problem, and it is killing so many people, that we have to hold citizens down, stick needles in their arms and extract blood if they won’t cooperate when asked to take a breath test.  True enough, every evil has a remedy, but if we follow this logic to its conclusion, then we would save many more lives by forcing blood-cholesterol tests on people leaving McDonalds and Kentucky Fried Chicken!  Really, more than one in eight deaths in Georgia are the result of obesity related illnesses, and that’s 100 times the number of people who die in alcohol related car deaths.

Well, I say enough is enough.  First, I would say that  DUI is a misdemeanor offense and there are limits to what we should do as a community to enforce misdemeanor laws.  We have tough DUI laws already:  refuse to take the test and your license can be suspended for a year.  And if you hurt someone else as a result of a DUI, then it becomes a felony.

Second, I say forced bloods draw for a misdemeanor is creepy and gross—it’s like beating a kid with a belt for spilling milk!  Your body is the ultimate place of privacy.  Nobody should violate that unless it’s really, really important.  I don’t like needles and it turns out I’m not alone.  The biggest reason why people pass up flu shots is because of the needle.  The idea of holding someone down while you take their blood sounds violent.  The government should resort to physical violence as a last resort in only the most serious cases.  These new policies are aimed at routine suspicion of DUI.

Lastly, I would say that a conviction for DUI is not that important.  Let me give you an example.  Let’s assume that a man – John Smith — is arrested for suspicion of DUI because he admitted using alcohol and he was weaving.  But after the arrest Smith refuses all breath or blood tests.  The case goes to the prosecutors who decide they can’t prove DUI.  That isn’t the end, because the prosecutor can still insist on alcohol counseling and DUI school as part of any conviction—even for a reduced charge like Failure to Maintain Lane.   The value of the DUI conviction verses the value of a Failure to Maintain Lane conviction is very slight when the sentence is exactly the same.

This is a hot issue right now.  Speak up and say no because your silence will be taken as approval.

WSB TV Interviews, Scott Semrau on the Intoxilyzer 5000 Controversy

Follow this link to see the WSB TV interview with Scott Semrau on the Intoxilyzer 5000 blood alcohol breath testing controversy.

http://youtu.be/_3PQQ3pUMuM

The Semrau Law Firm has a pending DUI case in Cobb County State Court where we have subpoenaed CMI, Corporation, the maker’s of the Intoxilyzer 5000, demanding that they bring the machine’s “source code” to Georgia.  The “source code” is essentially the operating parameters for Intoxilyzer 5000, the alcohol breath testing device used in Marietta, Cobb County and all of Georgia for suspected drunk and impaired drivers.  The attorneys for CMI, have filed motions opposing our subpoena in Kentucky.  This case is pending, with further hearings scheduled for this month, so we will keep you posted!