Sunday, February 15, 2015

Late Fall 2014:  Trial on a DUI representing a driver who went into the "Gore" to get around a vehicle ahead of him that did not move fast enough to suit him.  Learned a lot about the "Gore" and the statutes and Georgia Caselaw regarding it.  My client did a good job on the field sobriety tests.  After a day of trial "NOT GUILTY".  I continue to be amazed at the number of accuseds who just will not hire a lawyer to review and advise them on a DUI charge.  An Georgia it is an incredibly serious and long lasting charge and in my opinion well worth having a lawyer skilled and knowledgeable in this area of the law review your case.  I am limiting my representation to the Coweta and Griffin Judicial Circuits but I know the truly skilled lawyers in the Metro ATL that do this work and I would be happy to recommend several of them to you.  #Newnan #Fayetteville #Griffin #LaGrange #Peachtree City #Carrollton #Greenville # Manchester #Senoia  ~ RKP

Monday, November 18, 2013

A HARD FOUGHT VICTORY

Last Month saw me in trial a number of days during the month.  One trial before a Jury resulted in a Not Guilty verdict in a DUI trial held during the second week of the month.  For the first time I was up against not only several officers on the scene but a new witness, a drug recognition expert ( a DRE).  Despite the uphill fight we prevailed by presenting a strategically well planned defense:  NOT GUILTY


Wednesday, June 12, 2013

June 7, 2013:  Another win, DUI reduced to Disorderly Conduct and actually conditionally discharged upon a fine payment and community service.  How does that happen?  Hard Work and knowing what to do.  The preliminary to negotiating a winning plea to a DUI charge starts with addressing the ALS appeal with seriousness and not as some procedural perfunctory hurdle.  It is an Administrative Hearing and it is governed by a different set of rules, but rules nonetheless and I might add, a lot of them.  The Administrative Hearing Judges take their role|job seriously and every one I have appeared before is prepared to make tough rulings against a prosecuting officer when a clear case is presented that they should consider and make such a ruling.  Not every case is going to be a winning case, no matter who you hire.  But you need to hire a lawyer who knows what they are doing.  DUI is a sophisticated area of the law.  A lot of people think they know what to do or that it is an area of the law that is procedurally based and there is nothing to be done but plead guilty and pay increased insurance rates FOREVER ...  The bottom line is to hire an experienced lawyer with a track record.  Call me if you have been charged with a DUI in Coweta, Fayette, South Fulton, Meriwether or Heard Counties.  If you have one elsewhere I will refer you to a fellow DUI lawyer who knows what they are doing.  770-253-7778 or email me through my website: PraterAttorney.Com.  Good Luck and Godspeed.

Saturday, December 11, 2010

Best Free Advice for a DUI Charge

The best free advice anyone can get if charged with Driving Under The Influence is to engage a lawyer, an attorney, who knows what he or she is doing as soon as possible: A lawyer|attorney who has extensive experience, and study and class certification in DUI defense.  At Prater & Associates we have established a clear, successful and relatively inexpensive system, not a cheap system, for evaluating a DUI case.  From the beginning we immediately engage an FST [field sobriety test(ing)] expert to pour over the video film with us and participate in evaluating the correct path to take to successfully defend the case.  Engaging an expert early on is a critical step.  By law a Lawyer cannot testify in a case and defend it too.  We are either the defendant's lawyer or we are an expert witness, but we cannot be both.  When a Law Enforcement Officer comes to Court in uniform and testifies to his or her special training you had better have an expert witness to dispute what the arresting officer is saying.  Cross examining the arresting officer is only a part of the equation, a counter witness is almost always a must.  In addition to having a team on your side, a properly trained attorney will review the dozens of issues in every  DUI charge, any one of which could be the key to successfully ending the case justly in favor of someone accused.  DUI is a technical offense, not a common law crime, and as a result the Court requires that prosecution of every technical offense dot every "i" and cross every "t" to go forward.  For this reason some DUI "specialists" argue that no general practitioner is good enough to handle a DUI case.  I agree.  A general practitioner is probably not who you want to represent you in a DUI charge.  Who you want is a trial lawyer who knows what he or she is doing.  We are Trial lawyers and we know what we are doing.  Prater & Associates are well versed in Courtroom proceedings and trials.  Any real trial lawyer who has had the special training needed and has a long list of successful outcomes over years representing people accused of DUI violation(s) is approved.  Call us today to represent you 770-253-7778 or email us by going to our website by clicking PRATLAW

Monday, August 23, 2010

Georgia's DUI Statute as of 2010

I post the entire statute below as it stands in 2010 to illustrate what you are up against.  It is a statutory crime, not a commonlaw crime, and therefore every element of it must be proven to have been violated by an accused person for the charge to be upheld.  

There are many defenses to the charge of DUI but only an experienced attorney well versed in Georgia Law regarding the technical "crime" is going to be able to help you.  If you are charged with it and decide for whatever reason not to call me for a charge in the Coweta, Fayette, Troup, Meriwether, and Heard County jurisdictions, then please call someone who knows the statute and all the current caselaw regarding it.  The charge and conviction of it will be an albatross around your neck for years to come.  It is the most serious misdemeanor charge out there and if you have been charged you need to have your case reviewed and represented by experienced counsel.  Call me if you want a referral, remember my motto " if I can't help you I will know who can."

" § 40-6-391.  Driving Under The Influence Of Alcohol, Drugs Or Other Intoxicating Substances; Penalties; Publication Of Notice Of Conviction For Persons Convicted For Second Time; Endangering A Child
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;
(2) Under the influence of any drug to the extent that it is less safe for the person to drive;
(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;
(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;
(5) The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or
(6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.
(b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.
(c) Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor , upon a third conviction thereof, be guilty of a high and aggravated misdemeanor, and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:
(1) First conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous tenyears, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
(A) A fine of not less than $300.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
(B) A period of imprisonment of not fewerthan ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender´s alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;
(C) Not fewerthan 40 hours of community service, except that for a conviction for violation of subsection (k) of this Code section where the person´s alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not fewerthan 20 hours;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program . The sponsor of any such program shall provide written notice of the department´s approval of the program to the person upon enrollment in the program;
(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; provided, however, that in the court´s discretion such evaluation may be waived; and
 (F)If the personis sentenced to a period of imprisonment for fewerthan 12 months, a period of probation of 12 months less any days during which the personis actually incarcerated;
(2) For the second conviction within a ten-yearperiod of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
(A) A fine of not less than $600.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
(B) A period of imprisonment of not fewerthan 90 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewerthan 72 hours of actual incarceration;
(C) Not fewerthan 30 days of community service;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program . The sponsor of any such program shall provide written notice of the department´s approval of the program to the person upon enrollment in the program;
(E) Aclinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and
(F) A period of probation of 12 months less any days during which the personis actually incarcerated;
(3) For the third conviction within a ten-yearperiod of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
(A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
(B) A mandatory period of imprisonment of not fewerthan 120 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewerthan 15 days of actual incarceration;
(C) Not fewerthan 30 days of community service;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program . The sponsor of any such program shall provide written notice of the department´s approval of the program to the person upon enrollment in the program;
(E) Aclinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and
(F) A period of probation of 12 months less any days during which the personis actually incarcerated ;
(4) For the fourth or subsequent conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
(A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
(B) A period of imprisonment of not less than one year and not more than five years; provided, however, that the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose;
(C) Not fewer than 60 days of community service; provided, however, that if a defendant is sentenced to serve three years of actual imprisonment, the judge may suspend the community service;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department´s approval of the program to the person upon enrollment in the program;
(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and
(F) A period of probation of five years less any days during which the person is actually imprisoned;
provided, however, that if the ten-year period of time as measured in this paragraph commenced prior to July 1, 2008, then such fourth or subsequent conviction shall be a misdemeanor of a high and aggravated nature and punished as provided in paragraph (3) of this subsection;
(5) If a person has been convicted of violating subsection (k) of this Code section premised on a refusal to submit to required testing or where such person´s alcohol concentration at the time of the offense was 0.08 grams or more, and such person is subsequently convicted of violating subsection (a) of this Code section, such person shall be punished by applying the applicable level or grade of conviction specified in this subsection such that the previous conviction of violating subsection (k) of this Code section shall be considered a previous conviction of violating subsection (a) of this Code section;
(6) For the purpose of imposing a sentence under this subsection, a plea of nolo contendere based on a violation of this Code section shall constitute a conviction;
(7) For purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of this subsection, only those offenses for which a conviction is obtained or a plea of nolo contendere is accepted on or after July 1, 2008, shall be considered; provided, however, that nothing in this subsection shall be construed as limiting or modifying in any way administrative proceedings or sentence enhancement provisions under Georgia law, including, but not limited to, provisions relating to punishment of recidivist offenders pursuant to Title 17.
(d)(1) Notwithstanding the limits set forth in any municipal charter, any municipal court of any municipality shall be authorized to impose the misdemeanor or high and aggravated misdemeanorpunishments provided for in this Code section upon a conviction of violating this Code section or upon aconviction of violating any ordinance adopting the provisions of this Code section.
(2) Notwithstanding any provision of this Code section to the contrary, any court authorized to hear misdemeanor or high and aggravated misdemeanor cases involving violations of this Code section shall be authorized to exercise the power to probate, suspend, or stay any sentence imposed. Such power shall, however, be limited to the conditions and limitations imposed by subsection (c) of this Code section.
(e) The foregoing limitations on punishment also shall apply when a defendant has been convicted of violating, by a single transaction, more than one of the four provisions of subsection (a) of this Code section.
(f) The provisions of Code Section 17-10-3, relating to general punishment for misdemeanors including traffic offenses, and the provisions of Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section.
(g)(1) If the payment of the fine required under subsection (c) of this Code section will impose an economic hardship on the defendant, the judge, at his or her sole discretion, may order the defendant to pay such fine in installments and such order may be enforced through a contempt proceeding or a revocation of any probation otherwise authorized by this Code section.
(2) In the sole discretion of the judge, he or she may suspend up to one-half of the fine imposed under subsection (c) of this Code section conditioned upon the defendant´s undergoing treatment in a substance abuse treatment program as defined in Code Section 40-5-1.
(h) For purposes of determining under this chapter prior convictions of or pleas of nolo contendere to violating this Code section, in addition to the offense prohibited by this Code section, a conviction of or plea of nolo contendere to any of the following offenses shall be deemed to be a violation of this Code section:
(1) Any federal law substantially conforming to or parallel with the offense covered under this Code section;
(2) Any local ordinance adopted pursuant to Article 14 of this chapter, which ordinance adopts the provisions of this Code section; or
(3) Any previously or currently existing law of this or any other state, which law was or is substantially conforming to or parallel with this Code section.
(i) A person shall not drive or be in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person's blood, breath, or urine. Every person convicted of violating this subsection shall be guilty of a misdemeanor and, in addition to any disqualification resulting under Article 7 of Chapter 5 of this title, the "Uniform Commercial Driver's License Act," shall be fined as provided in subsection (c) of this Code section.
(j)(1) The clerk of the court in which a person is convicted a second or subsequent time under subsection (c) of this Code section within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall cause to be published a notice of conviction for each such person convicted. Such notices of conviction shall be published in the manner of legal notices in the legal organ of the county in which such person resides or, in the case of nonresidents, in the legal organ of the county in which the person was convicted. Such notice of conviction shall be one column wide by two inches long and shall contain the photograph taken by the arresting law enforcement agency at the time of arrest, the name of the convicted person, the city, county, and zip code of the convicted person's residential address, and the date, time, place of arrest, and disposition of the case and shall be published once in the legal organ of the appropriate county in the second week following such conviction or as soon thereafter as publication may be made.
(2) The convicted person for which a notice of conviction is published pursuant to this subsection shall be assessed $25.00 for the cost of publication of such notice and such assessment shall be imposed at the time of conviction in addition to any other fine imposed pursuant to this Code section.
(3) The clerk of the court, the publisher of any legal organ which publishes a notice of conviction, and any other person involved in the publication of an erroneous notice of conviction shall be immune from civil or criminal liability for such erroneous publication, provided such publication was made in good faith.
(k)(1) A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.
(2) Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section, provided that any term of imprisonment served shall be subject to the provisions of Code Section 17-10-3.1, and any period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.
(3) No plea of nolo contendere shall be accepted for any person under the age of 21 charged with a violation of this Code section.
(l) A person who violates this Code section while transporting in a motor vehicle a child under the age of 14 years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or drugs. The offense of endangering a child by driving under the influence of alcohol or drugs shall not be merged with the offense of driving under the influence of alcohol or drugs for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished in accordance with the provisions of subsection (d) of Code Section 16-12-1, relating to the offense of contributing to the delinquency, unruliness, or deprivation of a child.
______________________________________________________________________________
amended: 2010: To amend Code Section 40-6-391 of the Official Code of Georgia Annotated, relating to driving under the influence of alcohol, drugs, or other intoxicating substances, so as to change provisions relating to the contents of the publication of the notice of conviction for persons convicted for the second or subsequent time; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Code Section 40-6-391 of the Official Code of Georgia Annotated, relating to driving under the influence of alcohol, drugs, or other intoxicating substances, is amended by revising paragraph (1) of subsection (j) as follows:
"(1) The clerk of the court in which a person is convicted a second or subsequent time under subsection (c) of this Code section within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall cause to be published a notice of conviction for each such person convicted. Such notices of conviction shall be published in the manner of legal notices in the legal organ of the county in which such person resides or, in the case of nonresidents, in the legal organ of the county in which the person was convicted. Such notice of conviction shall be one column wide by two inches long and shall contain the photograph taken by the arresting law enforcement agency at the time of arrest, thename and address of the convicted person, the city, county, and zip code of the convicted person's residential address, and the date, time, place of arrest, and disposition of the case and shall be published once in the legal organ of the appropriate county in the second week following such conviction or as soon thereafter as publication may be made."

Monday, May 17, 2010

U-G-L-Y, You Might Have an Alibi, But You’re Guilty, You’re Guilty! - Law Blog - WSJ

   U-G-L-Y, You Might Have an Alibi, But You’re Guilty, You’re Guilty! - Law Blog - WSJ The element of caprice in judging whether an accused is guilty of a crime BEYOND ALL REASONABLE DOUBT is always a concern but this study appears to really substantiate the concern. A twenty percent caprice rate is absurd and highlights the unAmerican trend to ignore the legal standards that are mandated in criminal cases. In a society that values freedom it is always going to be better that the guilty go free than that a single person lose liberty because proof was not required beyond all reasonable doubt.

Tuesday, April 13, 2010

Victory & Defeat | The Tale Of Two Cases


State v. Webb, a local State Court case, promised to be a difficult case with charges of running a stop sign, expired tag, open container, DUI and Possession of Marijuana but ... First John Duncan of our office won at the Suppression Hearing and successfully eliminated most of the video tape as evidence for the State; then in picking a jury yesterday I got the jury talking about drinks and how everybody's chemistry is different and it is hard to tell what will make one person drunk to the point where they are not a safe driver. This morning before trial started we struck a deal eliminating the DUI charge and agreeing that the Marijuana charge would be handled on first offender status, the remaining charges were dropped or merged. A difficult case to be sure but an illustration that each case proceeds on a different course and it is only through difficult and intense preparation that a DUI case can be positioned to "win".

The second case, State v. Hill, was a difficult case that involved a wreck in a construction zone and a video in which the Defendant cussed up a blue streak. The case, however, at the 'get-go' had a lot more going for it in terms of evaluating it as a potential success than the Webb case discussed above. We were unsuccessful at the Suppression Hearing in eliminating the video in which the client had made some admissions but we were still confident that our intense preparation would position the case for a good shot at a "win". John Duncan picked a good jury and discussed cussing with them at length and made the jury promise not to hold that against Mr. Hill. In an unusual turn of events the prosecutor brought in out of state witnesses that were involved in the minor collision and testified that they saw our client drive erratically, and our own client's insurance adjuster was brought in to testify that our client had made admissions to him that were used against him ~ these two factors were in our opinion the difference in the case and the Jury returned a guilty verdict after two hours of deliberation.

What can be learned from the two cases? First, it is only by properly preparing a DUI case that a successful outcome can be obtained, but there can never be a guarantee that success will happen only that your case will be as thoroughly prepared as it can be to be positioned to "win". Second, if you don't hire us please hire an attorney who has experience and success and therefore knows how to properly prepare a DUI case for the possibility of a "win".