Tag Archives: Avoiding dui

The Problem with Breathalyzers

As we approach the holiday season, parties and alcohol will be as equally present as the increased law enforcement on the road. While it is always the best choice to have a designated driver to take you to and from your festivities, some people choose to drive after having a drink or two. In many cases, taking the precaution of limiting yourself to minimal alcohol leaves you safely under the legal limit. However, Georgia DUI lawyer Mickey Roberts often explains to his clients that if you are stopped and tested by a breathalyzer, you may be accused of drinking far more. How does this happen, and how can you stop it?

mouth alcohol breathalyzer

As part of the 4 simple rules to remember when stopped by the police to avoid DUI, remember not to submit to any voluntary roadside field sobriety evaluations—breathalyzers included.

In fact, it is advised not to take any state tests if you are arrested, especially if you believe you might be over the legal limit of .08. Unfortunately, even if you do not believe you are over the limit, a breathalyzer may show a very different, incriminating result.

The problem with breathalyzers is the false reading sometimes caused by mouth alcohol. When a breathalyzer analyzes your breath for blood alcohol concentration (BAC), the internal computer believes it is reading from air exhaled from deep within the lungs, also known as alveolar air. However, if your last sip of alcohol was recent, the sample very well may come from your mouth or throat. Even if a very small amount remains, the breathalyzer will report a very high BAC.

Another reason the breathalyzer may report higher than accurate numbers is if the DUI suspect has recently belched or is affected by acid reflux, causing what could be alcohol-filled liquids and gases of the stomach to rise into the esophagus and mouth’s soft tissue, where it remains until it is dissipated by saliva. The action of saliva rinsing the mouth and tissues of alcohol takes roughly 15-20 minutes. An additional cause of inaccurate breathalyzer reading is the usage of mouthwash or breath freshener, which you may be better off not using if you are attempting to cover up the smell of alcohol after consumption. Also, if you have dental work or removable components such as dentures, you are subject to much longer periods of holding high mouth alcohol.

To elude the mouth alcohol problem, it is best to stop drinking—even at minimal levels—hours before driving. To avoid DUI, it is best to always have a designated driver on hand to exacerbate the risk altogether.  If you need DUI help, please Contact MRGADUI  today.  Be sure to follow MrGaDUI on FacebookTwitter and Google+ for more information on Georgia DUI laws.

Case of the Month: When Parking the Car is the Best Option

Even efforts to make good decisions can go awry when you do not hire the right DUI lawyer. However, in November’s case of the month, because my client went the correct route in getting out of her DUI case, a good outcome was possible in a not-so-good situation.

My client had been drinking when she found herself in a situation where she needed to leave for her safety. After she started driving, she realized that she might have had too much to drink to drive safely. After pulling into a subdivision and parking on a side street, she turned off the car, took the keys out of the ignition, moved over to the passenger side, and drifted off to sleep. Almost 2 hours later, a resident called the police, who came to the scene to investigate. After waking my client up, the officer arrested her for DUI.

One of the key elements in prosecuting a DUI is that the State must prove that you were in control of a moving vehicle and were impaired to drive.  It is possible to be convicted of DUI, EVEN if the officer does not see you driving. You can be convicted by “circumstantial” evidence. For instance, if you are in a parked car with the engine running, you admit that you had parked the car recently, or if you are involved in an accident and admit that you were driving.

The key elements to not being found guilty of DUI–even though you tried to do the right thing by parking your car–are as follows:
  1. Turn the engine off, take the keys out of the ignition, and move to the back seat.
  2. If approached by the police, do not answer any questions relating to when your driving ended, how much you had to drink, etc.
  3. Do NOT submit to any field evaluations.
  4. Do NOT take any breath test at the scene.
  5. If you think you would register above the legal limit, DON’T take any state test.
 

In this particular case, I was able to find a compassionate prosecutor who agreed to dismiss the DUI charge. One would think that if a person was trying to do the right thing by getting off the road, the State would give you a break. However, this rarely happens in the DUI world. Therefore, you need to exercise your Constitutional rights and protect yourself as much as you can.

For more DUI arrest advice you can connect with me on FacebookTwitter and Google+.  Keep reading the MRGADUI blog for the latest traffic law news.

Remember the 4 Rules If You Are Pulled Over

mrgaduiWith the upcoming holidays, law enforcement will be out in full force, stopping people for suspected DUI.  Just recently, a local news anchor, Amanda Davis of Fox 5 News, was arrested after a wrong-way crash and charged with driving under the influence, reckless driving, and failure to maintain lane. what to do if pulled over by police for drinking and driving

When Davis was asked by the officer if she had been drinking, she said yes – not following rule number 1 of the 4 simple rules to remember when stopped by the police.  However, she did refuse a breathalyzer test and field sobriety test.   As you may have seen in previous blogs or on a MRGADUI koozie, I want to remind everyone of the 4 simple rules:

  1. Never admit to drinking or anything else. This does not mean deny drinking, it means do NOT admit or deny drinking or anything else. You do not have to provide any evidence that may incriminate you.
  2. Do not submit to any roadside field sobriety evaluations.  Roadside tests are voluntary and can include an eye test, walking a straight line, standing on one leg, ABCs, and/or a portable breath test.
  3. Do not take any state tests after your arrest if you believe you might be over the legal limit of .08 limit.
  4. If you are under 21 and receive a traffic ticket, call me! Since many traffic violations in addition to DUI can result in license suspension for underage drivers, it’s best to contact me to see whether your license is subject to suspension.


* The above information is intended to help educate members of the Georgia motoring public as to their rights under the law and to assist presumptively innocent citizens in properly asserting those rights. Information within this site should not be misconstrued as legal advice.

Contact me if you need DUI help or have questions about another traffic offense.  Don’t forget to connect with me on Facebook, Twitter, and Google+ for the latest information about traffic issues and driver’s rights.

How Motions Can Win a DUI Case

There are many ways of winning a DUI case, and one way is to fight the case with “motions”. Motions are pleadings filed with the court asking it to throw out the case entirely or limit evidence that the State can use against the defendant.

The most common motion I use is called a Motion to Suppress.  This motion serves 3 purposes. First, it could possibly win the entire case, such as when the court rules the stop illegal. Second, it allows me to cross examine the cop to see if he/she can actually articulate why the defendant was arrested for DUI, whether they followed their training, and so forth. This is especially important in cases where there is no video of the arrest. I can cross examine the officer and many times show the State that the officer did not follow basic operating procedures for a DUI arrest, or doesn’t make a good witness.  Finally, sometimes the officer fails to appear for the hearing and the case gets thrown out.

One of my most recent cases shows the importance of motions: my client was stopped for weaving, supposedly failed all of the field sobriety tests, and registered a BAC (blood alcohol content) of .08 on the breath test. At the motions hearing, the officer was unable to remember or articulate my client’s physical appearance, could not articulate how he administered the field tests, and most importantly, NEVER testified that he read the implied consent warning (the warning needed as a prerequisite BEFORE admission of any State breath test). As a result the .08 was excluded from evidence. After the hearing, the State approached me and offered a dismissal of the DUI in return for a plea to reckless driving. My client readily accepted the reduced charge, and the case was over without the further expense of a jury trial for my client.

Motions are an important tool in aggressively defending DUIs, and any good DUI attorney should use motions on most DUI cases.  To learn more about the DUI defense and other traffic related services I offer visit my website and continue to read by blog.  Connect with me on Facebook and Twitter for access to the latest traffic offense news and updates.

Why You Should Not Trust Georgia’s Breath Test Machine

When a person is arrested for DUI in Georgia, suspected of being under the influence of alcohol, most of the time the police will request that the person go to the jail or police station and submit to a “State chemical test of your breath.” It is this “breath test” that is used to convict that person of DUI, simply for having blood alcohol content (BAC) of over .08 grams.

Georgia uses a breath test machine manufactured by CMI, a company out of Kentucky. The machine contains many parts, and operates through an Infrared device used to take a breath sample from a suspect and convert it into an amount of alcohol in the person’s blood. The machine is a computer and operates by using a “source code” as all computers operate. There are many reasons why we should not trust the accuracy of Georgia’s breath machine. Here a just a few:

1. The machine is only inspected by a State employee once every 3 months; it is not inspected before and after every individual test. Therefore, even if the machine is deemed to be working properly, it can only be argued correctly that it was working that day, with only the inspector present.

2. During the “inspection”, the tester never actually opens up the machine to check to see if the electronic components are working properly.

3. The inspector does run a known alcohol solution through the machine. If the machine prints out a reading that is close to the actual alcohol amount, the machine is deemed to be working that day.

4. The alcohol control solution is in no way similar to an actual human sample. It does not take into account how a person with asthma, allergies, braces, gastric reflux, bridgework, or a fever would blow.

5. The inspector runs two test samples, if the two test results are within 25% of each other the machine is deemed to be working properly!

  There are many other reasons why you should not trust the breath test machine, but if you just consider the way Georgia inspects these machines to “verify” that they are working properly, ask yourself the following:

a. Would you allow your CPA to prepare a federal tax return with a 25% potential disparity?

b. Would you pay a lasik surgeon to fix your vision, and accept as “good enough for medical purposes” a CORRECTION that was OFF by these + and – ranges?

c. Would you book a flight on an airline with these variable percentages on their altimeters (the device that estimates the distance between the ground and the wheels at “touch down” on the runway)?

While these scenarios may seem far-fetched, they demonstrate the importance of only seeking the advice of an experienced Georgia DUI attorney if charged with DUI. To learn more about DUI and traffic violation defense, read our blog and connect with us on Facebook, Twitter, and Google+.

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Disclaimer

The above information is intended to help educate members of the Georgia motoring public as to their rights under the law and to assist presumptively innocent citizens in properly asserting those rights. Information within this site should not be misconstrued as legal advice.
Avoiding dui