Don't consent to any search

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 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.

Medical Marijuana in Georgia?

medical marijuana in GeorgiaLawyers David Clark and Jessica Towne are watching the slowly-unfolding of Georgia legislation about medical marijuana with great interest. Attorney Clark helped start Georgia NORML and served as its first Executive Director. Both Clark and Towne regularly defend clients with marijuana possession charges.

Back in the spring of 2014, Towne’s blog asked: “When will Georgia get medical marijuana?” Her guess back then: it’s going to be a slow process. Sadly, she’s been proven right.

A brief history of medical marijuana in Georgia

2014: Governor Deal champions Haleigh’s Hope, an Act to legalize the use of prescription marijuana THC oil for certain medical conditions. It’s not until 2015 that Georgians are finally allowed to use this oil to treat severe forms of eight (just 8!) illnesses. The rules only allow for the use of THC oil, not for its manufacture in Georgia, so patients must travel to other states to get the oil. As the patients only have permission to use THC oil in Georgia, they risk possible criminal drug possession charges in other states. The passing of Haleigh’s Hope is considered merely a stop gap measure by most because it did not establish a medical marijuana program in Georgia.

Establishing a Georgia Medical Marijuana Program

Read more: Medical Marijuana in Georgia?

What happens at a Georgia Administrative License Suspension Hearing (ALS)

gavel on clark & towneThe Georgia Department of Driver Services (DDS) is the agency that regulates licenses. You can find the status of your license after you create an account on the DDS webpage .

DDS can suspend or revoke your drivers license while 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. 

Read more: What happens at a Georgia Administrative License Suspension Hearing (ALS)

The first step to take after you’ve gotten a DUI in Gwinnett County

facebook lockDon't text or talk about your DUI!

Talking about your Gwinnett DUI to anyone makes them a witness against you. Back when I started my legal career, that meant I counseled my clients not to give details to their mothers or friends. Now I tell my clients: don’t share information about your arrest on social media, and mark your online profile as private ASAP. I can’t tell you to remove any incriminating photos or posts already up, and I’d never suggest that. But certainly making your profile private is a good step.

Not only are you turning friends and family into possible witnesses against you, by over sharing you’re giving the prosecution incriminating information. It’s simple and easy for prosecutors to access your online profile to see where you were just before your arrest. Did you take pictures of your fun night out? Did you post where you were planning on going or what you’d do there? Did your friends take pictures and tag you? All of these posts are going to show up on your account for anyone to see unless you keep your settings private. Twitter, Instagram and Facebook are the favorite places for the prosecution to start their case against you.

While we are talking about typing, don’t text a word either. If your phone isn’t password protected, the police can look at what is on it. If it is protected, they’ll wait for a warrant to be issued before they look. What will they see?

If you discuss—by text, social media, or over a cup of coffee—the details of your arrest with others, they can be called as witnesses by the prosecution. There is one exception: your DUI lawyer. Your attorney can't be a witness against you. Telling people about your arrest can damage your reputation, upset your loved ones, and may jeopardize your job. You should discuss your case details only with your DUI attorney.

What happens if your attorney doesn't send in the 10 day letter on time?

how to choose a Georgia DUI lawyerIf your attorney does not send in the 10 day letter ON TIME your license is suspended, says Georgia’s Court of Appeal.

“January 8, 2016 Alert: The trial court erred in overturning the Department of Driver Services’ decision to deny as untimely the petitioner’s request for an administrative license suspension hearing pursuant to O.C.G.A. § 40-5-67.1 subsection (g), as the petitioner’s counsel’s error in failing to mail the request within the required timeframe was imputed to the petitioner.”

There goes that excuse! If the attorney you hired fails to send the 10day letter by day 10, your license is suspended. No exception, not even if your attorney has difficulty counting to 10.

Not sure if that attorney who gave you a free consultation is going to meet this important deadline? Not sure if that attorney who says $500 will get you the best defense money can buy in this county can follow though? I wouldn’t be so sure.

A JD diploma on a wall does not indicate an attorney has the knowledge and ability to handle every type of law case. I am reminded of this weekly. This week it happened while I was sitting in court, waiting to begin my contested hearing. A new attorney asked me about the license suspension form he was filling out. It’s a simple, self-explanatory form requesting the driver’s information. Anyone convicted of DUI (which means entering a guilty plea to DUI) has to sign a form acknowledging license suspension. There’s no way out of it. This young attorney didn’t know how to assist his client getting a limited driving permit. I don’t know what he charged his client, but he should have given a full refund for accepting a case about which he knew nothing.

Make sure you hire the right attorney from the start by asking him or her the right questions. How do you know what questions to ask? Get my book!

Party time?

cheersHosting a celebration this week or next? Here’s a few tips from a DUI attorney who has seen everything:

  • Make sure you serve more than just alcoholic beverages,
  • limit alcohol consumption,
  • encourage the use of designated drivers or ride services like Uber,
  • and consider having “last call” an hour or more before the real end of the party.

If there are underage kids at your party, watch them closely to make sure they don’t help themselves to alcohol. If you are found serving alcohol to under 21 year-olds, you could face criminal charges of up to 12 months in jail or a fine of $1,000.

Out at a party and leaving jr at home alone? Make sure your teen isn’t hosting a party in your absence. I’ve seen cases before where mom and dad were criminally charged for a party their kid hosted at the family home while they were out.

Have a fun and safe holiday season.

'Tis the season for DUI checkpoints

checkpointYou might call them roadblocks, license checks, safety checks but to me, they’re checkpoints. In Georgia, the police can set them up virtually anywhere, any time. This time of year, metro-Atlanta agencies will be checking you like Santa is checking his naughty/nice list.

If you see what looks like an accident at an intersection up ahead, it may be a checkpoint. Before you get discouraged at the slow-moving traffic and you make a safe U-turn, understand that the police probably have a “chase” car watching for you, and they will pull you over if it looks like you’re avoiding the checkpoint.

When you go through the checkpoint, have your license ready. Be polite and calm and since you haven’t been drinking anything, Officer Friendly will waive you through.

If you have been out and have been drinking alcohol, Officer Friendly can probably smell it before you admit imbibing. This is when it’s important to exercise your constitutional right to remain silent: you are not obligated to answer any questions, or even to say that you’re not going to answer questions. Be polite and calm and follow reasonable requests. Assume you are being recorded by a dash or body cam. Your passengers are also allowed to record your conversations with Officer Friendly with their smart phones.

Field sobriety tests are voluntary. That means you can volunteer to do these, or not. Be polite and calm, and treat Officer Friendly with the respect you’d like extended to you..

Use a designated driver. Call a cab. Call a friend. Call Uber or Lyft. Or call me after you’re released from jail and we’ll see what we can do to minimize a DUI charge.

What is on your attorney's wall?

Honors and Awards:

superlawyerI get at least three solicitations each week from “associations” that tell me that I’ve been nominated for being one of the best DUI attorneys in Georgia.

These nominations entitle me to order a plaque, or pay a fee to have a certificate suitable for framing sent to me.

I don’t need to pay for a plaque. As a matter of fact, I find the ones I actually didn’t pay for are just “dustables” in my office, and I’ve taken them off the wall. I’m not sure how they’re manufactured, but I prefer to look at serene photos, or original art work, to looking at a plaque with my name on it.

When you’re interviewing an attorney to represent you, take notes of any awards or plaques you may see, and ask the attorney what he or she did to earn that award, or how much he or she had to pay to join the organization in order to be allowed to purchase the award.

There are few that count. The one I think matters the most is awarded by Super Lawyers. I'm proud to say I've made the Georgia Super Lawyers list every year since 2012. It is only given to the top 5% of lawyers in the state. Who gets it? Well, you have to be nominated and voted on by your peers. That means a lot to me. You still won't see it on my walls (I mean it when I say I like art), but you'll see it on this site!

Easier for young drivers to keep their licenses

ticket being writtenGeorgia recently passed new laws regarding when and how driver’s licenses can be suspended. As some of us know from experience, there are many ways to get your license suspended. As of July 2015, there are now fewer ways.

Your license can no longer be suspended for:

  • purchasing alcohol while under 21,
  • possessing alcohol while under 21 and while driving,
  • lending or borrowing a license for the purpose of false identification,
  • making or distributing fake IDs, and
  • driving away without paying for gasoline.