This is an excerpt from one of the recent episodes of 'Do I Need a Lawyer?' hosted by: Gary Martin Hays.
I'm Gary Martin Hays.
Our question today comes from Betty in Macon, Betty asks:
Hi Gary, my husband was pulled over for speeding and the officer thought he smelled alcohol. The officer told my husband to step out of the car and to take some tests. My husband agreed to take the officer's tests even though he didn't understand what the tests would be. My husband thought he passed the tests but after blowing into the hand held machine on the side of the road he was arrested. Does he need a lawyer?
-Betty in Macon
With me today is Attorney George McCranie from the McCranie Law Firm.
George, thanks for being here.
Great to be here Gary.
Gary: George what would you recommend for Betty to do at this point?
George: Well Gary, any time anyone is arrested - the 1st thing I advise them to do is to hire a lawyer.
Gary: Betty said her husband was originally stopped for Speeding. Is this common in a DUI case?
George: Gary as you know, in the State of Georgia officers are trained that simply Speeding does not indicate that a driver is under the influence of alcohol or drugs.
Gary: In her question, Betty said that her husband was instructed to step out of the vehicle by the officer. Why was that?
George: Betty said that the officer stated he smelled alcohol. Now it has gone from a speeding violation to a DUI investigation. In my experience if a driver is asked to get out of the vehicle - his chances of being arrested have just sky rocketed.
Gary: George are the roadside tests mandatory?
George: No the roadside tests are voluntary. In my experience most officers don't explain that the roadside tests are voluntary. You are not required to perform the roadside tests.
George: There are 3 approved roadside tests also known as SFSTs and they should be administered in this order: HGN, Walk & Turn and One Leg Stand.
George: The officers are trained to administer the HGN test first. This test involves the driver's eyes - the officer is looking for nystagmus - or the involuntary jerking of the eyes. The second test that the officer should administer is the Walk & Turn - most people know this as the "walking a line" test. The final roadside or SFSTs should be the One Leg Stand test - and this test is basically where the driver stands on one leg and holds the other foot 6 inches off the ground. In my opinion these tests are not fair tests - they require you to physically perform tasks that you would not normally do and you don't get to practice. After all 3 of the SFSTs have been administered the officer should then administer the hand held breath test also known as the PBT.
George: The hand held breath test is not the official breath test and is only a preliminary test and the numerical results are not admissible in court. The Intoxilyzer is the Official State's test and is usually administered at the police station.
Gary: What are the major issues that can affect the Intoxilyzer's accuracy?
George: There are two major issues that can affect the Intoxilyzer's accuracy. The first issue is proper administration of the breath test. In Georgia officers are trained that their primary objective is an uncontaminated breath sample. However many officers fail to check the driver's mouth for foreign objects, such as dentures, partial plates and the adhesives used with them. And the issue is that dentures or partial plates can trap an alcoholic beverage in the mouth and even the adhesives used with them contain alcohol - this can cause significant problems with the Intoxilyzer.
The second issue is the design, calibration, and maintenance of the machine. An example of this is no one - Not the State Patrol, GBI, FBI, not even the CIA - have ever seen the actual computer program for the Intoxilyzer. Your asked to take it on "faith" that it is good and will be accurate in every location it is used, on every individual test subject and in every possible circumstance.
Gary: George I have heard you talk about people being overcharged with DUI? What do you mean?
George: Here is an example of what I mean by being "overcharged"
I recently had a client that attended a cookout. While at the cookout my client had a couple of beer with his meal and then several hours later drove home. Same as Betty's husband, he was pulled over for speeding. The officer thought he smelled a slight odor of alcohol. The officer did not follow his training in the proper administration of roadside test and my client was "overcharged" with DUI.
Luckily we were able to show that the officer did not follow his proper training and my client was not found guilty of DUI.
George McCranie - Thank you so much for being with us.