tag:blogger.com,1999:blog-77869671690820637472024-03-04T20:35:26.113-08:00|| DUI LAWYER GEORGIA || KEITH PRATERA Blog of information on the most serious misdemeanor one could be charged with from trained and certified attorneys, one who has even sat for years as a DUI Judge and who has represented people charged with DUI for twenty-three yearsKeith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comBlogger20125tag:blogger.com,1999:blog-7786967169082063747.post-61656541929435725002020-08-20T09:36:00.003-07:002020-08-20T09:36:59.015-07:00O.C.G.A. 40-6-392 (2010) 40-6-392. Chemical tests for alcohol or drugs in bloodO.C.G.A. 40-6-392 (2010)
40-6-392. Chemical tests for alcohol or drugs in blood
(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person's blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:
(1)(A) Chemical analysis of the person's blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
(B) In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state's or plaintiff's case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver's license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;
(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.
(b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, may give rise to inferences as follows:
(1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391; or
(2) If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391.
(c)(1) In any civil or criminal action or proceeding arising out of acts alleged to have been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.08 or more grams in the person's blood, breath, or urine, the person shall be in violation of paragraph (5) of subsection (a) of Code Section 40-6-391.
(2) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (i) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.04 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (i) of Code Section 40-6-391.
(3) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (k) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.02 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (k) of Code Section 40-6-391.
(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.
(e)(1) A certification by the office of the Secretary of State or by the Department of Community Health that a person who drew blood was a licensed or certified physician, physician assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist at the time the blood was drawn;
(2) Testimony, under oath, of the blood drawer; or
(3) Testimony, under oath, of the blood drawer's supervisor or medical records custodian that the blood drawer was properly trained and authorized to draw blood as an employee of the medical facility or employer
shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.
(f) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:
"This breath-testing instrument (serial no. ) was thoroughly
inspected, tested, and standardized by the undersigned on (date )
and all of its electronic and operating components prescribed by its
manufacturer are properly attached and are in good working order."
When properly prepared and executed, as prescribed in this subsection, the
certificate shall, notwithstanding any other provision of law, be
self-authenticating, shall be admissible in any court of law, and shall
satisfy the pertinent requirements of paragraph (1) of subsection (a) of this
Code section and subparagraph (g)(2)(F) of Code Section 40-5-67.1.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-49573156073563693722020-08-20T09:24:00.002-07:002020-08-20T09:24:41.174-07:00WORK UPDATEFor the past two years I have been working on, and occupied with, 6 Nursing Home Abuse Cases and too many to count large asset divorce cases. Those cases were in Fulton and Cobb Counties. All are now settled and I have returned to Litigating DUIs as well as Large Asset Divorces and Serious Injury Cases. #DUIGEORGIA #NURSINGHOMEABUSE #DIVORCESKeith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-10316612123239392902015-02-15T15:08:00.001-08:002015-02-15T15:08:49.162-08:00<div dir="ltr" style="text-align: left;" trbidi="on">
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<br />
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Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-46819929007610049822013-11-18T14:24:00.000-08:002013-11-18T14:24:04.102-08:00 A HARD FOUGHT VICTORY<div dir="ltr" style="text-align: left;" trbidi="on">
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<br />
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Anonymoushttp://www.blogger.com/profile/06797277327155423370noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-4243005123171660982013-06-12T08:14:00.001-07:002013-06-12T08:25:14.523-07:00<div dir="ltr" style="text-align: left;" trbidi="on">
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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: <a href="http://www.praterattorney.com/">PraterAttorney.Com</a>. Good Luck and Godspeed.</div>
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Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-86905214806071079732010-12-11T03:40:00.000-08:002010-12-11T03:54:27.392-08:00Best Free Advice for a DUI Charge<a href="http://t3.gstatic.com/images?q=tbn:ANd9GcRJd28mKybrOidSk72CCGxZOEecHr5ha7ouEkMQdVlXZ-UV6QEvbA" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://t3.gstatic.com/images?q=tbn:ANd9GcRJd28mKybrOidSk72CCGxZOEecHr5ha7ouEkMQdVlXZ-UV6QEvbA" /></a>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 <span class="Apple-style-span" style="font-family: Georgia, 'Times New Roman', serif;"><b><i>770-253-7778</i></b></span> or email us by going to our website by clicking <a href="http://praterattorney.com/">PRATLAW</a>Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-74462871053945404932010-08-23T11:50:00.000-07:002010-08-23T11:53:19.714-07:00Georgia's DUI Statute as of 2010<div style="line-height: 14px; text-align: justify; text-indent: 30px;"><nllcodesect><span class="Apple-style-span" style="font-family: Georgia, 'Times New Roman', serif;"><b>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. </b></span></nllcodesect></div><div style="line-height: 14px; text-indent: 30px;"><nllcodesect><span class="Apple-style-span" style="font-family: Georgia, 'Times New Roman', serif;"><b><br />
</b></span></nllcodesect></div><div style="line-height: 14px; text-align: justify; text-indent: 30px;"><nllcodesect><span class="Apple-style-span" style="font-family: Georgia, 'Times New Roman', serif;"><b>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."</b></span></nllcodesect></div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;"><b><nllcodesect><br />
</nllcodesect></b></div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-align: justify; text-indent: 30px;"><b><nllcodesect>" § 40-6-391. </nllcodesect><nllcatch> 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</nllcatch></b></div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;"></div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(a) A person shall not drive or be in actual physical control of any moving vehicle while:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(2) Under the influence of any drug to the extent that it is less safe for the person to drive;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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 <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=16-13-21&sessionyr=2010&Title=16&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">16-13-21</a>, 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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(E) A clinical evaluation as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a> and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a>; provided, however, that in the court´s discretion such evaluation may be waived; and</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;"> (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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(C) Not fewerthan 30 days of community service;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(E) Aclinical evaluation as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a> and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a>; and</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(F) A period of probation of 12 months less any days during which the personis actually incarcerated;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(C) Not fewerthan 30 days of community service;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(E) Aclinical evaluation as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a> and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a>; and</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(F) A period of probation of 12 months less any days during which the personis actually incarcerated ;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(E) A clinical evaluation as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a> and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a>; and</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(F) A period of probation of five years less any days during which the person is actually imprisoned;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(f) The provisions of Code Section <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=17-10-3&sessionyr=2010&Title=17&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">17-10-3</a>, 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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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 <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-5-1&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">40-5-1</a>.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(1) Any federal law substantially conforming to or parallel with the offense covered under this Code section;</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(2) Any local ordinance adopted pursuant to Article 14 of this chapter, which ordinance adopts the provisions of this Code section; or</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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 <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=17-10-3.1&sessionyr=2010&Title=17&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">17-10-3.1</a>, and any period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">(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 <a href="http://www.lawriter.net/NLLXML/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=16-12-1&sessionyr=2010&Title=16&datatype=S&noheader=0&nojumpmsg=0" style="color: #1e3c73; text-decoration: none;" target="_blank">16-12-1</a>, relating to the offense of contributing to the delinquency, unruliness, or deprivation of a child.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">______________________________________________________________________________</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;"><b><span class="Apple-style-span" style="font-size: x-large;">amended: 2010:</span></b> 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.</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;"><b><a href="http://www.blogger.com/post-edit.g?blogID=7786967169082063747&postID=7446287105394540493" name="ActSec1" style="color: #1e3c73; text-decoration: none;"></a>SECTION 1.</b></div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">Code Section <a href="http://www.blogger.com/post-edit.g?blogID=7786967169082063747&postID=7446287105394540493" name="40-6-391" style="color: #1e3c73; text-decoration: none;"></a><a href="http://www.lawriter.net/Nllxml/getcode.asp?datatype=S&userid=PRODSG&interface=CM&statecd=GA&codesec=40-6-391&sessionyr=2010&Title=40&datatype=S&noheader=0&nojumpmsg=0" name="40-6-391" style="color: #1e3c73; text-decoration: none;">40-6-391</a> 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:</div><div style="font-family: arial, helvetica, verdana; font-size: 12px; line-height: 14px; text-indent: 30px;">"(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, <u>the</u>name <s>and address</s> of the convicted person, <u>the city, county, and zip code of the convicted person's residential address,</u> 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."</div>Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-64666962283895430762010-05-17T17:56:00.000-07:002010-05-17T18:00:07.087-07:00U-G-L-Y, You Might Have an Alibi, But You’re Guilty, You’re Guilty! - Law Blog - WSJ<div class="separator" style="clear: both; text-align: center;"><a href="http://t0.gstatic.com/images?q=tbn:GkS8EBAMxW5yNM:http://sanlorenzolibrary.files.wordpress.com/2008/10/scales-of-justice.gif" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://t0.gstatic.com/images?q=tbn:GkS8EBAMxW5yNM:http://sanlorenzolibrary.files.wordpress.com/2008/10/scales-of-justice.gif" /></a></div> <a href="http://blogs.wsj.com/law/2010/05/17/u-g-l-y-you-might-have-an-alibi-but-youre-guilty-youre-guilty/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Feedfetcher">U-G-L-Y, You Might Have an Alibi, But You’re Guilty, You’re Guilty! - Law Blog - WSJ</a> 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.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-16906373446947683912010-04-13T07:28:00.000-07:002010-04-13T08:37:37.569-07:00Victory & Defeat | The Tale Of Two Cases<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://t1.gstatic.com/images?q=tbn:ZGAFxqF63TEc7M:http://www.paduiblog.com/uploads/image/Harrisburg%2520DUI%2520Lawyer%2520horse%2520dog.JPG"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 130px; height: 79px;" src="http://t1.gstatic.com/images?q=tbn:ZGAFxqF63TEc7M:http://www.paduiblog.com/uploads/image/Harrisburg%2520DUI%2520Lawyer%2520horse%2520dog.JPG" border="0" alt="" /></a><br /> <span style="font-style:italic;">State v. Webb</span>, 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".<br /><br />The second case, <span style="font-style:italic;">State v. Hill</span>, 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.<br /><br />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".Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-19447448691818607662010-03-03T11:57:00.000-08:002010-03-03T12:14:16.542-08:00NEWNAN PRATLAW|| 14th amendment essay<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://t3.gstatic.com/images?q=tbn:Yja32zPCoAtHJM:http://www.notconformedthoughts.com/UserFiles/Image/SupremeCourt.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 140px; height: 95px;" src="http://t3.gstatic.com/images?q=tbn:Yja32zPCoAtHJM:http://www.notconformedthoughts.com/UserFiles/Image/SupremeCourt.jpg" border="0" alt="" /></a><br /> The Supreme Court is reviewing a Chicago gun ban statute this term. The case is McDonald v. Chicago. Mr. McDonald, an elderly man, was upset that on 3 different occasions "Utes" came to his home to "visit", would not leave when he asked, demanded that they vacate his property and then stole everything he owned that was valuable. Mr. McDonald decided to purchase a gun to help him persuade the "Utes" the next time they came to visit that they should leave his home without looting it. Mr. McDonald's acts were apparently illegal according to Chicago's handgun ban. Legally, the case poses the prospect of the Supreme Court finally issuing a decision as to the extent of the scope of the 14th amendment and if they take on that topic the case could be one of the most important cases in our lifetime. It is more likely that the Court will just strike down the handgun ban and limit its decision to the specific statute. I posted the link on my blog at <span style="font-weight:bold;"><a href="http://pratlaw.wordpress.com/">HOT LEGAL TOPICS</a></span> <span style="font-style:italic;">[Click it to go there]</span>. Hope you find the topic relevant enough to follow and keep up with the Court's decision.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-42378264639875488352010-02-23T01:06:00.001-08:002010-02-25T05:35:12.321-08:00HGN: A State Supreme Court Tells It Like It IsThe Supreme Court of Illinois has recently issued a definitive opinion regarding the HGN test: <a href="http://www.state.il.us/court/OPINIONS/SupremeCourt/2010/February/102372.pdf">Illinois v. McKown</a> <br /><br />In the <span style="font-style:italic;">McKown<span style="font-weight:bold;"></span></span> case that Court found the following: <br /><br />1. The HGN field test was originally developed by Burns and others as a tool to screen drivers to determine whether blood-alcohol concentration testing was justified. The test was not designed to determine whether the subject is impaired for driving and its use for this purpose has not been validated by controlled studies. Further, Rubenzer asserts that the developers of the test, along with prosecutors, have “oversold” the test.<br />2. In the 1970s, NHTSA sponsored research by psychologist Dr. Marcelline Burns of the Southern California Research Institute into the reliability of field-sobriety testing. Based on her research, which found a correlation between the ingestion of<br />alcohol and the presence of HGN, law enforcement agencies adopted this clinical test for use as a field-sobriety test.<br />3. The question of general acceptance must be determined from the testimony of experts and the literature in these scientific fields [ophthalmology, and optometry] and not from the testimony or writings of law enforcement officers or agencies.<br />4. We, therefore, adopt the trial court’s finding that HGN testing is generally accepted in the relevant scientific fields and that evidence of HGN test results is admissible for the purpose of proving that a defendant may have consumed alcohol and may, as a result, be impaired.<br />5. We hold that evidence of HGN field-sobriety testing, when performed according to the NHTSA protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired. <br />6. In sum, we adopt the trial court’s findings on remand that HGN testing is generally accepted in the relevant scientific fields as evidence of alcohol consumption and possible impairment. We also adopt the trial court’s five conclusions of law regarding the admission of HGN evidence and its use at trial. The admissibility of HGN evidence in an individual case will depend on the State’s ability to lay a proper foundation and to demonstrate the qualifications of its witness, subject to the balancing of probative value with the risk of unfair prejudice.We find that admission of the officer’s testimony regarding HGN<br />testing in this case was reversible error. Thus, we reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court for a new trial. <br /><br /> The <span style="font-style:italic;">McKown<span style="font-weight:bold;"></span></span> opinion defintively finds that the HGN test is limited to evidence of the consumption of alcohol and possible impairment; anything more is JUNK science.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-51841339033209165992010-02-21T05:45:00.001-08:002010-02-25T05:44:28.621-08:00CAN THE STATE WEAN ITSELF FROM THE REVENUE STREAM?Over the past 22 years of representing clients charged with DUI it has become obvious that a large group of people charged with the created crime were pretextually charged: Legal Scholars would say because <span style="font-style:italic;"><a href="http://www.oyez.org/cases/1980-1989/1989/1989_88_1897">Terry v. Ohio</a></span> was in fact a slippery slope decision which has resulted in a game being played as far as articulating real suspicion for making a stop. Why then not make articulable suspicion and roadblock DUI arrests when they are 1st/5 and 2nd/10, and where there is a refusal or intoxilyzer result of .13 or less, an administrative only case by taking away the punishment of jail time: the Supreme Court has stated that where there is no prospect of jail time there is no right to trial by jury and thus arguably these cases could be administratively tried cases? The skeptically inclined I think would argue that the reason this will never, ever happen is that it would take a revenue stream away from the local government and then streamline the appeals process where on appeal when Appeals Courts, whose focus in life centers around protecting constitutional rights, got the case(s), many would be thrown out because the reality is that the games being played with the Constitution would not stand judicial scrutiny if they were routinely appealed. Then again, do we really want to confront the fact that on a routine basis too much has been allowed in the way of pretextual reasons for enforcing the law or do we just want to go along with the system and hope it doesn't get worse? This is Just My Humble Opinion Dealing With The Modern World and The Reality Of The Game I think should be called: "Let's Put The Constitution On Its Head And Spin It, Law Enforcement".Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-3929282198712405512010-02-20T07:45:00.001-08:002010-02-20T08:09:40.987-08:00Pratlaw Ga Essay|| DUI HGN testing<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiO8VQfqdEtPAHiuGQUI3ayOWo-avUhTX-eOXY-QozdLfkzzGU9W7npynp2vpWSTRbqhvCNT2Cghw0a-0nDzrsAYB1dQYdvwfMXjQHth3Q03AJHtHySByjIETmp_tKWKd3nOPD_nKK1uFwZ/s1600-h/HawkEyeFlyer.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 162px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiO8VQfqdEtPAHiuGQUI3ayOWo-avUhTX-eOXY-QozdLfkzzGU9W7npynp2vpWSTRbqhvCNT2Cghw0a-0nDzrsAYB1dQYdvwfMXjQHth3Q03AJHtHySByjIETmp_tKWKd3nOPD_nKK1uFwZ/s200/HawkEyeFlyer.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5440358489930482658" /></a><br /><br /><br />If you have been polite and accommodating and waived your Constitutional protections and agreed to do field sobriety testing for a law enforcement officer who has stopped you I am sure he or she had you do the "pen test" or "eye test"; what is technically called the Horizontal Gaze Nystagmus (HGN) test. DUI trained law enforcement officers will tell you the HGN test is one of the standardized field sobriety tests they use to determine if you are driving while intoxicated. What they won't tell you is that they have about 8 hours of training in Horizontal Gaze Nystagmus training and that every minute of their training is biased toward what will prove the influence of alcohol or drugs. Not a single minute of their training concerns the truth that many people have a natural 'jerk' to their eye movement or that multiple environmental stimulus, like the lights of passing vehicles, will materially change testing results. Why won't they tell you these things? Because they either don't know about them in which case they are totally UNQUALIFIED to run such a test or more concerning because they COULD CARE LESS. So what is HGN? The test in essence is a measurement of the movement of the eyes. Nystagmus refers to the involuntary jerking of the eyes back and forth. Horizontal refers to the officer moving a pen or other object horizontally across your field of vision. DUI officers claim that they are looking for three clues in each eye during this HGN test. The first part of the test is to determine if a DUI suspect's eyes are able to pursue smoothly - is there jerking in the movement of the eyes. The next part of the test is to determine if there is nystagmus at maximum deviation - when the pen is held with your eyes as far out as they can go, is there nystgamus. Finally, the officers are looking to see when the nystagmus occurs as they move the pen across your field of vision. They are to mark off if they see nystagmus prior to a 45 degree angle. Each eye is suppose to be checked twice for each of the 3 clues. The total maximum number of clues for the test is 6. What the officers don't normally tell you is that there are over 40 types of nystagmus that can naturally occur in an individual. They also don't tell you that they can't differentiate these other 40+ types of nystagmus and they have not heard of most of the other types of nystagmus. Most of them are CLUELESS that these deviations exist because they are not trained to perform unbiased testing but rather they are trained to perform the testing solely to prosecute for the offense of DUI! <br /> According to the federal standards for the HGN, the officers are suppose to use objective criteria for administering the test and scoring the test. More often than not, however, the officers simply just report that the DWI suspect has 6 of a possible 6 clues on the test.<br />As Coweta Circuit [Counties of: Coweta, Carroll, Meriwether, Troup and Heard] and Griffin Circuit [Counties of Fayette, Spalding, Upson and Pike] lawyers, we have seen hundreds of videos where the officers perform the HGN. We have yet to see an officer ask a client if he or she has naturally occurring nystagmus.<br />If you have been arrested for DUI, ask your lawyer how many clues the cop says you had on the HGN. The answer you will get is probably going to be 6 of 6 and you will not have been asked a single question about whether you have a natural HGN. the last trial I had the officer took the test with my client being required to stare into the headlights of the patrol car; about as complete a violation of the HGN test as can occur!Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-48454515743626721352010-02-09T05:11:00.000-08:002010-02-09T05:14:03.923-08:00READING A LITTLE LAW: The Thin Line Of JusticeIf you read a single case in your life, read this one: <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=392&invol=1">WRANGLING WITH THE STUBBORN OLD CONSTITUTION</a>Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-44504079789445945392010-01-04T10:27:00.001-08:002010-01-04T10:27:26.549-08:002010 BIG CHANGES FOR THE GOODR. KEITH PRATER, P.C. will change its name over the course of 2010 to PRATER & ASSOCIATES as Attorney John D. Duncan has associated with the Firm. Keith Prater is excited about the prospect of mentoring John in the beginning of his practice. John has worked hard to gain his law license and has since associating with the Firm proven himself more than capable, winning outright his first trial, a difficult modification of child support and medical payments case, and obtaining a Not Guilty verdict in his second trial in a misdemeanor case. John's association will allow the firm to handle all the calls coming in from prospective clients many of which were not being returned as the firm's practice grew so large over the past two years that on multiple occasions new prospective client calls were not returned because workload and returning existing client calls consumed the entire workday. We have since John cam on board in October been promptly returning calls more than 95% of the time.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-56089981099992684962009-12-20T09:00:00.000-08:002010-02-25T05:32:55.558-08:00A NATION OF "CHECKPOINT CHARLIE" ROADBLOCKS?After <i>Terry v. Ohio</i> the Supreme Court's next significant nod to increasing police control arose out the illegal alien crisis in the case of <i><a href="http://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte">United States v. Martinez-Fuerte</a></i>. That case has a dissent worth reading now more than 3 decades later because of what it forewarned and because Justice Brennan, considered among Jurists to be perhaps the most intellectual Justice to serve on the Court, explored the slippery slope we now find ourselves near the bottom of today. I remain still on the fence on the issue(s) addressed in <i>Martinez-Fuerte</i> and <i><a href="http://www.oyez.org/cases/1980-1989/1989/1989_88_1897">Michigan v. Stiz</a></i> though being a strict constructionist of the Constitution I lean more toward the conservative viewpoint that 'Check Point Charlies' license checks are dishonest and unconstitutional. while the <i>Stits</i> case is more clear cut in that it mandated specific regulations for setting up a "Check Point Charlie", its apparent mandates have not been followed very much by Trial Courts who in large part rely on State Appellate decisions which invariably water down the mandates thus blurring the focus on the fact that the Constitution rigidly mandates individual protections against state intrusion. Though I am not a fan of Justice Rhenquist's decisions as a whole, having found many to be ideological, if the Stits mandates were uniformly followed by the Trial Court I think a lot of 'Check Points' would be found unconstitutional.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-76992423269670235222009-11-25T13:09:00.000-08:002009-11-25T13:09:23.292-08:00FLORIDA BUYS INTOX 8000 BECAUSE 5000 IS DEEMED UNRELIABLEDon't take the word of DUI defense lawyers, take the word of the State of Florida. The Intoxilizer 5000 was and is unreliable. The article is linked to the right. Why won't Georgia get with the future and update or at least disclose the secrets behind the machine? DUI is a cash cow! Never mind that most of the citizens charged have their constitutional rights trashed. Cities and counties need the cash? A new United States Supreme Court case may, if the trial courts will enforce the law from the country's highest court, turn the tide this year and 2010.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-6223681798606442822009-11-19T10:46:00.000-08:002009-11-19T10:46:04.378-08:00The Most Serious Misdemeanor Knows No StrangerNovember 19, 2009: Sen. John Kerry's daughter was arrested in Hollywood for allegedly driving drunk. The 36-year-old Alexandra Kerry was stopped by officers on a Hollywood street at about 12:40 a.m. Thursday and failed a sobriety test. [she never should have voluntarily taken].<br />
Officer Bruce Borihanh says she was booked at the Hollywood police station and was held for about five hours. She was released at about 5:30 a.m. after posting $5,000 bail. Borihanh didn't immediately have other details. Alexandra Kerry is the eldest daughter of the Massachusetts senator, the Democrats' 2004 presidential nominee. She has produced documentaries and has had several small acting roles.<br />
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Increased insurance rates for the foreseeable future is just one of the many problems that will come if she pleds out or is convicted.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-30381129198212717372009-11-19T07:47:00.000-08:002009-11-19T07:58:52.805-08:00THE STOPBefore 1968 the idea that law enforcement officers could stop a vehicle without cause was beyond belief. After all the U.S. Constitution 4th Amendment guarantees security in our person, houses, papers and effects from unreasonable search and only upon probable cause set forth under oath for a warrant could we be disturbed in our happiness which was also guaranteed. 1968 changed all that in the case <i>Terry v. Ohio</i> when the Supreme Court gave the go-ahead to law enforcement to stop vehicles for reasonable suspicion <i>[I have posted a link to a discussion of the case to the right]</i>. Today 4th amendment guarantees are a joke: perhaps the times support suspension of our right to happiness and freedom ~ I will leave that to the pundits. I have said the foregoing as a preface to this and this is not my specific advice to you but my general opinion `FOR ADVICE AND COUNSEL CALL ME OR ANOTHER DUI LAWYER AND DISCUSS ANY QUESTIONS YOU HAVE IN A FACE TO FACE MEETING WITH ME, HIM OR HER: If I am ever stopped by law enforcement I will be polite but refuse to answer any question or perform any test. I will politely present my driver's license and proof of insurance in silence when asked. I will state to him/her that I understand that I am not in custody and therefore I will not answer and questions or volunteer any information. I will specifically refuse to take any voluntary roadside "tests" of any kind or nature. I will ask that my driver's license and proof of insurance be returned to me. I will state that I assume I am free to leave unless the officer responds to that statement that I am in custody and if the officer states that I am in custody I will invoke my right to remain silent and that includes my right not to do any roadside field sobriety test. Until the officer reads the <b>Georgia Implied Consent card</b>. After he or she has read the Implied Consent Card to me, I will consent to taking an alcohol level test or I know that I risk loosing my driver's license and driving privileges for up to a year. This is also important: If read the <b>CARD</b> I will <b>VERBALLY INSIST ON A BLOOD LEVEL TEST</b> in front of his/her patrol car video and state that I do not trust the Intoxilyzer 5000 because it is a secret machine and secretly maintained. If I decide to take the test the officer chooses [AND THAT WILL ALMOST ALWAYS BE THE INTOXILYZER 5000] I will insist that I be taken to a private medical facility and at my own expense take a blood test. AT NO TIME WILL I EVER CONSENT TO A SEARCH OF MY PERSON, MY VEHICLE OR MY PROPERTY.Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.comtag:blogger.com,1999:blog-7786967169082063747.post-13755566581133830352009-10-12T08:52:00.000-07:002009-10-12T08:53:44.379-07:00DUI: A 'TECHNICAL OFFENSE' THAT CAN TEAR YOUR LIFE APART!Once upon a time crime was defined and governed by ancient common law from England and that from the Romans. Our forefathers brought it over from England and incorporated it into written laws called statutes. The first law governing criminal law in the United States is set forth in the Constitution in Article 3 wherein it was mandated that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury". The second was the 4th amendment prohibiting unreasonable searches and seizures and warrant issuance except on probably cause supported by oath and particularly describing the place to be searched and the person or things to be seized. Then the 5th and 6th and 8th amendments put further restrictions on the government regarding the prosecution of crimes. Why? Because of the preambles mandate that the Constitutions purpose was to "...<b>Secure the Blessings of Liberty to ourselves and our posterity<i></i></b>."Keith Praterhttp://www.blogger.com/profile/06667687656436769764noreply@blogger.com