Seth Gilliam arrested in Peachtree City
Actor Seth Gilliam was arrested early Sunday morning after the police stopped him for speeding. I bet his lawyer wished he had done things a little differently after his stop.
After clocking Gilliam driving 107mph in a 55 zone (super speeder, and then some!), the officer stated he smelled booze and asked Gilliam if he had been drinking. Gilliam allegedly admitted to having had three beers and a shot, and registered a 0.107 BAC.
The Walking Dead star dug his own grave if this is true. Officers nearly always say they smell booze when they stop someone at 2am. And often, it's a good guess. But as any good DUI defense lawyer will tell you, this statement is full of holes. Alcohol has no odor, so what exactly did the officer smell? More importantly, why, why, why, did Gilliam say anything at all? Why did he agree to the breath test?
Then, because the officer was having an excellent stop, he discovered he smelled marijuana! The officer found a joint. Sounds like the searched the car.
In all, Gilliam was charged with DUI, speeding, reckless driving, and possession of less than an ounce. That is a lot, but they released him right away. The next time he faces a judge, it might not go so well. He is looking at a lot of fines, loss of license, and even jail time.
Prosecutors training law enforcement
by Jessica Towne
Prosecutors are re-training law enforcement officers in the wake of the Williams case. Prosecutors are telling officers to ask drivers: "Will you agree to a breath test?" before reading them the implied consent warning. If a driver outright agrees to take a blood or breath test before being read the implied consent warning, prosecutors think they can use that agreement as evidence of free and voluntary consent.
Prosecutors may be encouraging officers to get search warrants, too.
Many counties, including Gwinnett, have video kiosks at local police precincts so that officers can avoid the traffic and simply dial up a magistrate judge who will issue an electronic search warrant. Not so fast, prosecutors! Many Georgia courts have thrown out searches or found that consent to a search is invalid where the person who gives consent is too intoxicated to make an intelligent decision.
How is this relevant in a DUI case? The prosecutor wants to argue that a driver is not too intoxicated to consent to a search, but is at the same time too intoxicated to drive safely. Pick a side, prosecutors!
The Williams Case
On March 27, 2015, the Georgia Supreme Court issued an important decision regarding DUI cases (read State v Wiliams here). The gist of the ruling is that trial courts must determine that a driver freely and voluntarily consented to take a blood test before the result can be admitted in evidence at trial.
Only a small percentage of DUI cases involve blood tests; most involve breath tests. Will this ruling extend to breath tests? I'm arguing it should. Each case will be handled individually, and a result in one of my client's cases will not necessarily mean that I can expect the same result in other cases. My colleagues and I also think this may vary depending upon the county involved.
Regardless of how a judge may rule at the trial level, an appellate court is probably going to review each breath test case. It will be up to me to carefully preserve this issue in my clients' cases. I don't expect this challenge to change the way implied consent refusals are treated, but that, too, will be a decision out of the appeals courts at a future date.
Even though I limit the number of clients I represent at any given time, if this decision has an effect on your case, you should expect a detailed explanation, with a copy of the ruling, in the mail by the end of May. I hope to have some local court rulings to share by then as well.
Massive Change in GA Implied Consent Warning
The Georgia Supreme Court recently decided a case involving the Implied Consent Warning read to drivers arrested for DUI.
Due to the decision, law enforcement officers are just asking drivers to consent to a breath or blood test. DON'T DO THIS! You're not required to. Unless the officer reads the original, required by law implied consent warning, there is no penalty for refusing. Even if the officer reads the warning, you can still exercise your right to refuse, and there may not be any consequence.
Read more: Massive Change in GA Implied Consent Warning
Fighting a Minor In Possession Charge
Prom and graduation season is fast approaching, and these events typically involve alcohol consumption. Way back in the dark ages when I graduated high school, the drinking age was 18, "legally drunk" was 0.15% (it's now 0.02% for those under 21 and 0.08% for those over 21), and getting caught drinking meant the police stood next to you while you told your parents what you'd been doing. Times have certainly changed, and there are now serious consequences to underage drinking. As long as no driving is involved, a teen caught drinking faces a Minor in Possession of Alcohol charge (MIP). If driving is involved, that under-21 year old likely faces a DUI, too. While the best practice for minors is to avoid people and places where alcohol is served to anyone, life happens.
Read more: Fighting a Minor In Possession Charge
Will these bills make good laws?
Your elected officials are busy at work. Do you know what they are up to? The Georgia Driver does. She is keeping an eye on a few bills as they make their way from proposal to law. If you've an interest in any of these topics, contact your representative lawmaker and let him or her know how you feel.
House Bill (HB)5 Allows for drones to capture images for certain purposes, but not for private surveillance. (Each new technology rewrites the law.)
HB9 Makes it unlawful for certain employers to ask whether an applicant has ever been arrested. (Does that mean after you've paid your debt to society you can actually get a job?)
Read more: Will these bills make good laws?
How an out of state DUI can cost your license
By Jessica Towne
Driving in Georgia is a privilege, not a right, and the Georgia DDS has the authority to rescind, cancel, suspend and revoke a driver’s license for certain behaviors. It can even revoke or cancel your Georgia driver’s license based on your out-of-state conduct.
A game-changing case
In a case decided February 9, 2015, the Georgia Court of Appeals upheld the revocation of a Georgia man’s license because of two Illinois DUI convictions. In this particular case, the driver, who had never been an Illinois resident and had never been issued an Illinois driver's license, was convicted of two DUI-related offenses in Illinois before moving to Georgia. After the driver was convicted of yet another DUI, this one in Georgia, Georgia notified other states. After receiving notice of this conviction, Illinois imposed a lifetime ban on this person’s privilege to drive in Illinois. Citing the Illinois ban, DDS cancelled the man’s Georgia driver's license. This case is a game changer for sure. You can read about the case at opinions.dailyreportonline.com/index.asp.
More Georgians refusing sobriety tests
By Jessica Towne
The number of people refusing the sobriety test in Georgia doubled, from 5,608 in 2008 to 11,480 in 2013.
The Georgia Health News service recently published an article that manged to turn this fact into the basis for calling for more DUI convictions. You see, the State of Georgia collects lots of tax money to fund various projects when someone is convicted of DUI. And MADD wants us to believe that DUI convictions are down because drivers are taking advantage of the legal system, when in fact, some drivers are exercising their constitutional and statutorily granted rights. MADD and Georgia prosecutors think the conviction rate is down because more drivers are exercising their right to refuse a breath or blood test.
Read more: More Georgians refusing sobriety tests