Criminal Law

While DUI is only a misdemeanor, it is one of the more highly litigated of crimes in the state of Georgia. There are two reasons for this.

First, an individual convicted of DUI faces considerable consequences. For a first life-time DUI, a defendant is facing potential jail time, 12 months of probation, a fine of up to $1,000.00, a minimum of 40 hours of community service, attendance at a DUI Risk Reduction course and, most significantly, a driver’s license suspension. These are just the court imposed sanctions, however. For many people, a DUI can cost them their job. There is also the social stigma attached to having received a DUI, which, unfortunately, in our age, is heightened by social media and mug shot websites.

The second reason DUIs have generated so much litigation is that prosecution of a DUI is a highly technical matter. To build a solid DUI case, a law enforcement officer must strictly follow certain procedures in the field when investigating and ultimately making an arrest for DUI. An officer’s failure to follow these procedures will open up defenses to the DUI that a knowledgeable attorney will capitalize on.

The DUI Arrest

While all DUI cases have their unique facts, the typical case begins with (1) a traffic stop, includes (2) some field sobriety tests and (3) ends with an arrest and the reading of an implied consent notice. Then, if he agrees to it, the driver will blow into an intoxilizer at the station or provide a blood sample at a hospital.

1. Traffic Stop

A law enforcement officer can stop a vehicle on the road if the officer has a reasonable articulable suspicion to believe the driver or an occupant of the car is or is about to be engaged in criminal activity. This means an officer has the authority to pull someone over not only for an observed traffic violation but also for anything the officer sees that leads the officer to believe the driver or an occupant is breaking the law. A good example of the latter situation is where an officer sees a car weaving within its lane. This is not a traffic violation, but the officer may believe the driver is under the influence, and, in theory, the officer would be justified in stopping the car.

This initial traffic stop is subject to challenge, and if a defense attorney can show the officer was not justified, then under the “exclusionary rule,” all evidence obtained as a result of the traffic stop must be suppressed. In the context of a DUI, this means the case will have to be dismissed.

2. Field Sobriety Testing

The National Highway Traffic Safety Administration (“NHSTA”) developed a battery of tests that officers in Georgia have adopted as an objective measure of an individual’s level of impairment from alcohol. In theory, these tests, when administered properly, show when a driver of a vehicle is impaired to the extent he or she should not be driving. The tests are as follows:

• Walk and Turn
• One Leg Stand
• Horizontal Gaze Nystagmus (“HGN”)

Many people insist that they “passed” the test when referring to the SFTs. But these tests are not pass or fail. Rather, they are designed so that a person who is impaired will show various “clues” indicating impairment. The NHSTA training manual warns, however, that these tests produce valid results only when administered according to the specific instructions provided in the manual. A knowledgeable attorney will recognize when an SFT is not properly administered and be able to attack the creditability of the result.

A DUI attorney can also attack the credibility of the FSTs themselves. NHSTA insists that its tests are based upon scientific evidence and that if properly administered will produce an objective measure of impairment. There is reason to doubt this claim, however, and there are experts who are willing to testify to the flaws in NHSTA’s methods.

3. The Arrest and Implied Consent

The officer on the scene will use the driver’s performance on the FSTs as well as anything else he may have observed on the scene to determine whether there is probable cause to arrest for DUI. If the officer believes there is probable cause for arrest, he will place the driver under arrest and read what is referred to as the “implied consent notice.” Under Georgia law, when a driver obtains a license from the Department of Driver Services (“DDS”), the driver consents to give a breath or blood sample if an officer has probable cause to believe the driver is under the influence of alcohol. Although this is not explicit in the text, the implied consent notice the officer reads informs the driver of three things:

• (1) by obtaining a driver’s license, the driver has implicitly consented to give a blood or breath test to determine the presence of alcohol in the blood;
• (2) even though the driver has given consent to provide a blood or breath sample, the driver can now withdraw that consent and refuse to give a sample; and
• (3) if the driver withdraws consent and refuses to give a sample, the driver’s license will be suspended for 1 year.

If the driver does not withdraw consent and agrees to provide a breath or blood sample, the officer will then make arrangements for a test of the officer’s choosing. If the driver withdraws consent and refuses to provide a sample, the officer will fill out what is called a DDS 1205 form, which he will send to DDS informing DDS that the driver has withdrawn consent and that the driver’s license should be suspended. A driver has a right to appeal this process through what is called an “ALS Hearing.”

Breath and Blood Samples

If the driver agrees to give a breath or blood sample, the officer has authority to decide which type of sample to obtain. Officers most commonly request a breath sample, which is obtained by an Intoxilizer breath machine, typically housed at the sheriff’s department or police station. Law enforcement agencies in Georgia have long used the Intoxilizer 5000 but are now switching to the Intoxilizer 9000. The 5000 had its problems and most lawyers should welcome the 9000 as a more sophisticated and accurate machine. Still, the 9000 is subject to malfunction and, therefore, its results can be challenged in some instances.

An officer requesting a blood sample will typically transport a driver to the nearest hospital where trained nurses withdraw the blood. The blood must then be delivered to the GBI crime lab for testing. If the blood is not transported in a timely manner or under the right conditions, it can spoil and the results from the crime lab can be challenged.

If a driver is 21 or older, the legal limit is .08 and anything over will be considered a “per se” DUI. If the driver is under 21, the legal limit is .02. Anytime a driver produces a sample over the legal limit, the testing procedure is going to have to be scrutinized and potentially challenged to combat a conviction.

Administrative License Suspension (“ALS”) Hearings

This is often a confusing process for non-lawyers because it is not part of the criminal proceeding, though it certainly has an effect on it. When a driver has refused to provide a breath or blood sample and the arresting officer has submitted a 1205 form to DDS, DDS will suspend the driver’s license for a period of 12 months unless the driver requests an ALS hearing. This request must be made within 10 business days of the arrest. Unfortunately, many people do not consult with an attorney until after this 10 day period has expired at which point the 12 month suspension has gone into effect. (This suspension will be lifted if the DUI is later dismissed or reduced to a lesser charge.)

If a timely request for a hearing is submitted, then one will be set down, usually within 60 days, and the driver’s temporary permit will remain valid until the day of the hearing. The ALS hearing is not a challenge to the crime of DUI itself but is rather an inquiry into whether the arresting officer followed certain procedures. The back of the 1205 form lists the specific areas of inquiry, which are as follows:

1. Whether the arresting officer had reasonable grounds to believe that you were driving or in actual physical control of a moving motor vehicle while under the influence of alcohol and were lawfully placed under arrest for violating O.C.G.A. § 40-6-391;

2. Whether at the time of the request for the test or tests the officer informed you of your implied consent rights and the consequences of submitting or refusing to submit to such test;

3. Whether you refused the test, or if a test or tests were administered and the results indicated an alcohol concentration met or exceeded the applicable “per se” limits of 0.08 grams or more for drivers age 21 and older, 0.02 for drivers under age 21, or 0.04 for operators of commercial motor vehicles;

4. Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences or the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences.

If the driver believes he or she can win on any one of these issues, then a hearing should be held. However, if the chances of succeeding are low, it is best to speak with the arresting officer at the hearing and ask him to withdraw the suspension request. The officer will usually agree to this in exchange for the driver agreeing to plead guilty to DUI or a lesser charge. Thus, one can see that the ALS process gives law enforcement officers considerable leverage over a driver that has been charged with DUI and has refused a breath or blood sample. It is in this way that the ALS hearing affects the criminal case.

These are some of the basics of DUI litigation, but there are many more issues that can arise in any given case. It is important to consult with and hire an experienced DUI attorney who can successfully navigate you through this complex and sometimes confusing process. Our firm has extensive experience in representing those accused of DUI and related offenses.

Please contact us today for a free consultation.

The firm has substantial experience in representing those accused of possessing or distributing illegal drugs.

The typical drug case can be assessed by looking at three major components: (1) the procedure by which law enforcement searched for and located the drugs, also known as search and seizure, (2) the evidence by which law enforcement concluded the accused was in “possession” of the drugs, and (3) the method by which law enforcement identified the drugs.

Search and Seizure

In every drug case, the first question to ask is how did law enforcement officers find or come into contact with the illegal drugs. The answer to this question is crucial because if law enforcement violated an individual’s Fourth Amendment rights in searching for and seizing the drugs, the entire case could potentially be thrown out.

In most instances, a drug case begins with a traffic stop or the execution of a search warrant at a residence. Law enforcement comes into contact with an individual or individuals and, at some point, discovers illegal drugs. These police/citizen encounters must be analyzed step by step to determine whether law enforcement violated the individual’s U.S. and Georgia Constitutional rights in searching for and locating the drugs. If there was, in fact, a violation, our U.S. Supreme Court has held that any evidence obtained as a result of that violation must be suppressed, i.e. thrown out. Thus, many drug cases are won with pre-trial litigation over the search and seizure that led to the drug arrest.

Possession

One can be in either actual or constructive “possession” of drugs. Actual possession is just what it sounds like—it occurs when someone possesses drugs on his or her person. Constructive possession is when someone can exercise control over drugs but is not in actual possession. For example, an officer may find marijuana in the center console of a car and arrest the driver under a theory of constructive possession. In either case, the State has the burden of proving the accused was in “knowing” possession.

Identification of Drugs

Once law enforcement has seized drugs, it must have them tested. Marijuana can be tested at the local law enforcement agency, but most other drugs, including methamphetamine, cocaine, and heroin, to name a few, must be tested by a GBI forensic scientist at the state crime lab. Additionally, to prove the case at trial, the individual who tested the drug must testify and explain the testing methods and why he or she came to the conclusion that the sample tested was the drug in question. At times, there are problems with the testing methods, but in most instances, the contentious issue is with the “chain of custody.” The drugs, to be tested, have to travel from the point of seizure to the local law enforcement agency, then to the state crime lab and back again to the law enforcement agency, and ultimately to the District Attorney’s office and the courtroom. The State has the burden of showing that throughout this process the drugs remained sealed and were never tampered with. Law enforcement’s failure to show a clean “chain of custody” can sometimes result in the accused receiving an acquittal at trial.

Proving Intent

In a case where one has been accused of “possession with intent,” the State, in addition to the elements described above, must show the accused intended to distribute or sell the drugs. Unless the accused is caught in the act of distribution, the State must rely on circumstantial evidence to prove the intent element. This evidence may include the quantity of drugs—the theory being that someone possessing large amounts does not do so for personal consumption—or items typically used in the sale of drugs such as scales, multiple plastic baggies and accounting ledgers.

Whatever the nature of your drug offense, our firm has extensive experience in handling these types of case and can guide you through the process to obtain the best possible result. Please contact us today to set up a free consultation.

Violent Offenses

Violent offenses can range from misdemeanor battery to felony aggravated assault and murder. In the realm of crime and punishment in Georgia, violent felonies carry some of the greatest potential sentences. If you are accused of a serious violent crime, it is imperative that you find an experienced attorney for representation.

Every case involving a violent crime is different and presents different avenues of defense. As with any other crime, the state carries the burden of proving the accused acted with “intent,” i.e. that the accused intended to commit the crime of violence. Additionally, there are many instances where an accused acted in self-defense, a concept the general public widely understands. Whatever the facts may be, the law firm of Charles Barrow P.C. is ready to work of a viable defense and pursue it aggressively to trial if need be.

Battery

A person commits simple battery when he or she “intentionally makes physical contact of an insulting or provoking nature with the person of another.” A simple battery becomes plain battery when a person intentionally causes “substantial physical harm or visible bodily harm to another.” O.C.G.A. §§ 16-5-23 and 16-5-23.1.

Aggravated Battery

This is a battery that is “aggravated” when the accused “maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his body useless, or by seriously disfiguring his or her body or a member thereof.” O.C.G.A. § 16-5-24.

Aggravated Assault

This is an assault that is “aggravated” by the accused’s use of a weapon or a gun or by the accused’s specific intent to either murder, rape or rob. It carries a maximum of 20 years to serve. O.C.G.A. § 16-5-21.

Murder

The basic definition of murder is the unlawful killing of another human being. Cases involving murder or related charges of felony murder, voluntary manslaughter and involuntary manslaughter will contain complex legal issues and require a substantial commitment of time and resources from an attorney taking on such a case. For an individual accused of murder in Georgia, the stakes are the highest they have ever been because the sentencing judge now has the authority to sentence one convicted of murder to life without parole. (Previously a convicted murderer could only be sentenced to life with the possibility of parole except in death penalty cases.)

Please contact us today for a free consultation.

Federal Offenses

If you are charged with a federal crime, it is important to hire an attorney familiar with the federal system. Our firm has years of experience handling federal criminal matters and can provide the knowledgeable and qualified representation necessary for a successful resolution of your case.

While the state and federal systems share many common procedural and evidentiary aspects, one of the key differences between the two is the federal sentencing guidelines. Every federal case must be considered in light of these guidelines because they govern how a defendant can and will be sentenced if his case results in a conviction. Additionally, these guidelines, combined with mandatory minimum sentences under the federal criminal code, create situations where an accused is put under enormous pressure to enter into a plea and cooperate with the Government in the prosecution of other defendants. This is because a defendant will receive a downward departure in the sentencing range for the mere act of entering a guilty plea and an additional reduction in his sentence for his cooperation and assistance to the government.

Because of the pressures created by the federal system, some attorneys may be inclined to rush their client to plea without fully considering all approaches to resolving the case. In some cases, a quick plea and cooperation may be the best option, but this certainly is not true for all cases. Thus, anyone facing federal criminal charges will need an attorney that can assess the case efficiently and provide trustworthy advice on which direction to take. Our law firm has the experience and invests the time to provide professional and quality representation in federal court.

Some of the crimes typically prosecuted by the federal government through the U.S. Attorney’s Office are:

• Drug Conspiracy
• RICO Violations
• Money Laundering and Counterfeiting
• Firearms Offenses
• Tax Fraud
• White Collar Crime

If you have been charged with a federal offense, please contact our office today to set up a free consultation.

As a firm based in a university town, we see a large number of drinking related offenses, the most common of which is underage possession of alcohol. Anyone who has ventured downtown on any given evening will notice lots of students and lots of police. This combination results in arrests nearly every night.

Understandably, both students and their parents are distressed by the prospect of an alcohol related arrest affecting college and career ambitions. Fortunately, though, the prosecutor’s office will typically offer a first time offender a break through a pre-trial diversion program. Under this program, the defendant is supervised by a probation officer—usually between 6 and 12 months—and is required to complete community service and take a drug and alcohol evaluation. If these requirements are completed and the defendant does not have additional adverse contact with law enforcement, the prosecutor dismisses the charge.

The Pre-Trial diversion seems easy enough, but it is not uncommon for participants to be “kicked out” for testing positive for alcohol or picking up new charges. In such an event, the defendant starts over and faces the original charge without the option of pre-trial.

As with any type of crime, repeat offenders of underage possession or other alcohol related offenses can expect penalties to increase, including, for some, a requirement to serve time in jail.

Georgia 9-1-1 Medical Amnesty Law

In 2014 the General Assembly recognized that individuals who had died of drug or alcohol overdoses potentially could have been saved with medical attention but that the individuals or those who were with them did not seek help due to fear of prosecution. In an effort to remedy this problem, the General Assembly passed the “Georgia 9-1-1 Medical Amnesty Law”, which provides immunity from prosecution to anyone who seeks medical attention for himself or others suffering from an overdose. The following is the portion of the law relevant to alcohol consumption:

Any person who in good faith seeks medical assistance for someone who is experiencing an alcohol related overdose shall not be arrested, charged, or prosecuted for [underage possession of alcohol] if the evidence for the arrest, charge, or prosecution of such [offense] resulted from seeking such medical assistance. Any person who is experiencing an alcohol related overdose and, in good faith, seeks medical assistance for himself or herself or is the subject of such a request shall not be arrested, charged, or prosecuted for [underage possession of alcohol] if the evidence for the arrest, charge, or prosecution of such [offense] resulted from seeking such medical assistance.

O.C.G.A. § 3-3-23(j)(2). This law is especially relevant in Athens and to college students who may be reluctant to seek help for alcohol or drug overdose due to fear or arrest. I hope that it will succeed in saving lives in the future.

Our firm has extensive experience representing those accused of alcohol related offenses. Please contact our office for a free consultation.

Writ of Habeas Corpus

A Writ of Habeas Corpus is an historic right afforded to individuals in the United States. The term, literally translated, means “you shall have the body.” An individual petitions for a Writ of Habeas Corpus to contest the constitutionality of his custody or incarceration. This action is civil (as opposed to criminal) in nature and is brought against either the warden or sheriff depending upon where the individual is being held. The petition demands that the warden or sheriff bring forth evidence showing why the incarceration is legal.

An individual typically petitions for habeas after he has “exhausted” his direct appeals. In Georgia, this means the petitioner has appealed to the Court of Appeals or Georgia Supreme Court and those courts have affirmed his conviction. Once the direct appeal process is exhausted, the petitioner has four (4) years to file for a state habeas. This action is filed in the superior court of the county of incarceration.

There are a wide range of issues that can be addressed in a Habeas action. Generally, a petitioner argues that his constitutional rights were violated in the trial process and that these violations were not addressed on direct appeal, or, if they were addressed, were decided wrongly by the reviewing court.

Federal Habeas Corpus

Under 28 U.S.C. § 2241 et seq., federal habeas is available to individuals convicted at either the state or federal level. The rules governing a federal habeas petition, particularly the filing requirements, are complicated and must be addressed on a case by case basis. There is a one (1) year statute of limitations for filing a petition in federal court.

Habeas Corpus is Not for the Pro Se Petitioner

A habeas corpus action is a complex proceeding, both at the federal and state level. There are many pitfalls that await a petitioner, including the statute of limitations, which is one (1) year at the federal level and four (4) years at the state. In most instances, the habeas petition is the last chance for an individual serving a criminal sentence. Unfortunately many inmates attempt habeas actions “Pro Se,” meaning without a lawyer. Given the importance of these proceedings as well as their complex and sometimes confusing nature, an individual considering habeas should make all efforts to secure legal counsel.

Our firm has represented individuals in federal and state habeas and has the knowledge and skill to navigate you successfully through this process. Please contact our office for a free consultation.

Criminal Appeals

For anyone involved in the criminal justice system, the appeal process can be the most perplexing part. The reasons are twofold. First, the appellate courts have their own rules and procedures that are quite different from the rules and procedures at the trial court level. Second, the appellate courts are not a place where a defendant gets to retry the case. Rather the appellate courts exist to review what happened at the trial and determine whether there were errors serious enough to warrant a reversal of the conviction.

Motion for New Trial

The appeal process in the majority of criminal cases begins after a jury has rendered its verdict, and a judge has entered a sentence against the defendant. At that time, the clock begins running and the defendant has 30 days in which to file motion for new trial or a notice of appeal. In almost all cases, the motion for new trial is going to be preferable because it essentially stops the running of the clock and keeps jurisdiction of the case at the trial court. A notice of appeal, by contrast, sends the case directly to the appellate court and leaves an attorney little time to develop an effective appeal.

Once the motion for new trial is filed, all deadlines are temporarily suspended. This allows the appellate attorney to review the trial transcript and pinpoint errors that occurred at the trial or in pre-trial litigation. The appellate attorney will then amend the motion for new trial to include the issues spotted in the transcript review. At this point, the case goes back in front of the trial judge, i.e. the same judge that sat over the jury trial, and the appellate attorney argues for a new trial for the defendant based on the alleged errors. The trial judge will either agree that the errors warrant reversal and grant a new trial for the defendant or disagree and deny the motion for new trial.

If the trial judge denies the motion for new trial, the defendant then has 30 days to file a notice of appeal. This is a pleading that directs the clerk of court to send the entire case file, including the trial transcript, to the appellate court. In Georgia, a state criminal conviction will be appealed to either the Georgia Court of Appeals or the Georgia Supreme Court depending on the type of crime: all murders go to the Supreme Court and all other types of criminal cases go to the Court of Appeals. After receiving the case file, the appellate court will docket the case and send the attorneys for the defendant and state briefing deadlines. The attorneys will submit their briefs—these are carefully researched written legal arguments—and the court will issue an opinion either affirming the conviction or reversing the conviction. If the conviction is reversed, then the case goes back down to the trial court for a new trial or, in circumstances where double jeopardy has attached, the prosecutor will dismiss the case. If the conviction is affirmed, the defendant can petition a higher court for further review or attempt a collateral attack on the conviction through a habeas corpus action.

Arguing the Best Issues

When addressing trial errors, a seasoned appellate attorney knows not to take the shot-gun approach and list every conceivable error that occurred at trial. Rather, the best strategy is to narrow down the errors to the two or three strongest and argue those strenuously. It is rare for any trial to contain more than one reversible error, which means that in any given brief there is, at best, only one good issue. This is why an excessive list of errors is going to hurt an attorney’s credibility and distract the court’s attention from the stronger issues. This is an important point because all too often defendants, eagerly waiting in prison, believe the more issues addressed the better their chance for freedom and will pressure their attorneys to proceed accordingly. Unfortunately, this strategy has the opposite effect in that it diminishes the effectiveness of the brief and, consequently, lessens the chance of a reversal.

The types of errors that can occur at trial are manifold. They range from problems with jury selection, to improper opening statements, to the erroneous admission of prejudicial evidence, to faulty instructions to the jury. In many cases, the attorney taking the appeal is not the one who conducted the trial. Often, the reason for this is because the appellate attorney has been hired to review not only the trial but the trial attorney’s performance at trial. If the trial attorney has committed significant errors in conducting the trial, the defendant will be able to make a 6th Amendment claim of ineffective assistance of counsel. Under this claim, the defendant argues trial counsel’s errors were so significant that the defendant was essentially denied the right to counsel as guaranteed by the 6th Amendment to the United States Constitution.

Experience Counts

The appellate process is complex and specialized and should only be handled by an experienced appellate attorney. Having produced over 20 opinions from the Georgia Court of Appeals and Georgia Supreme Court, our firm is well equipped to handle your appeal. Contact us today to discuss your needs.