What is DUI?

It is illegal to be in control of a motor vehicle if under the influence of alcohol or drugs to the extent that you are “less safe” to drive or if your alcohol content is 0.08 or more.  There are two basic types of DUI prosecutions.  DUI Less Safe and DUI Per Se.

What is DUI Less Safe?  (Cases where there are not test results or results are under the per se limit).

It is unlawful to be in control of a motor vehicle if you are under the influence of alcohol or drugs to the extent that it is less safe to drive.  The State will generally try to use a combination of driving conduct, field tests and physical observations (i.e.. odor of alcohol, unsteady on feet, slurred speech, etc.) to make out its case.  The arresting officer will usually testify that it is his or her “opinion” that this combination of factors shows the defendant was a “less safe” driver due to the influence of alcohol or drugs.

What is DUI “Per se”

Georgia law makes it illegal to be in control of a motor vehicle if your alcohol concentration (BAC) is 0.08 grams or more at any time within three hours after driving. O.C.G.A. 40-6-391(a)(5).

If a police officer suspects a person to be under the influence of alcohol that officer may request that person to blow on an “alcosensor”.  This is a handheld device to test for the presence of alcohol.  This number may not be used in court except to the show the presence of alcohol.  However, after a person is arrested on suspicion of DUI they will be asked to submit to another alcohol breath test on a larger machine called the “Intoxilyzer” usually located at the police department or the jail.

So what do the numbers on the “Intoxilyzer” mean?  Well, the higher the BAC number the more likely it is that you will be arrested for DUI.  Any number over the “per se” or “legal” limit will be enough to convict you if proper procedure was followed.

The “legal limits” in Georgia are as follows:  The “per se” alcohol limit for adults over 21 is 0.08 grams.  Drivers under age 21 can be convicted of “per se” DUI with an alcohol content of 0.02 grams.  Commercial drivers have a 0.04 limit.

However, a person can be prosecuted if his or her blood alcohol level is below the “legal limit”.  For example, if you are in a wreck and a test shows your blood alcohol level is 0.07 you can be prosecuted for DUI.

The legal presumptions as regards to alcohol (BAC) are as follows.  If you have a BAC below 0.05 then there is a presumption of non impairment.  If you have a BAC of 0.06 to 0.079 there is a neutral position, where neither side can take advantage of an inference.  However, you can be prosecuted if you have a BAC of .05 or over.  If you have a BAC of 0.08 you are “per se” DUI and can be convicted based on that number.

What is Juvenile Court and what cases do they hear in Georgia?  Obviously, cases involving juveniles are heard in the juvenile court.  The cases heard in juvenile court can be divided into two main categories, which are delinquency actions and deprivation actions.  In delinquency actions, the child is accused of bad conduct and in deprivation cases the parents are accused of wrong conduct toward the child.  There are of course many terms of art and euphemisms used in juvenile court but I will attempt to use everyday language to describe what juvenile courts do.

First, juvenile courts hear juvenile delinquency, unruly and traffic proceedings involving children under the age of 17 (with some exceptions for serious felonies).  These cases are ones in which the child is accused of some wrong act which if an adult would be heard in a criminal court.  Second, juvenile courts hear deprivation and termination cases, which involve cases of parental neglect or abuse.

Each county in Georgia has a juvenile court.  An appointed judge presides over the court and may be assisted by an associate judge.  Some juvenile judges are full time but some are part time judges who also have private practices.

In juvenile delinquency cases, the case will be “prosecuted” by the District Attorney’s office.  A child has a right to an attorney and he or his parents may hire an attorney or apply for a public defender if unable to hire an attorney.  As in any criminal case, it is always wise to have an attorney to look out for your interest.  This rule also applies to juvenile courts regardless of the various euphemisms used in juvenile courts, which can disguise the fact that a child is being accused of a crime and is being prosecuted.

In deprivation and termination cases, it is the parents and not the child who stand accused of wrongdoing.  These cases can be either filed by private individuals or by the Department of Family and Children Services (DFCS).  Parents can hire legal representation or my request the court for appointed counsel.  Children involved in these cases may be appointed attorneys or  Guardian Ad Litem to look out for the child’s interest and well-being.

Deprivation cases can result in children being placed temporarily with relatives or in foster care.  Although, both the juvenile court and DFCS attempt to keep families together.  The Court may also enter protective orders in an attempt to avoid removing the child from their home.

In cases where the child is removed from the home, a wide array of services are provided to parents with the goal of reuniting them with their children.  In cases where parents are unable or refuse, to remedy the causes of the child’s removal the parent’s rights may be terminated and the child placed up for adoption.  However, most deprivation cases end with the child being returned to the parent’s home.

The above outline is just a rough sketch of what juvenile courts in Georgia do and is not exhaustive.  If you or your child have a case in juvenile court it is wise to seek counsel or to request a court appointed attorney if you are unable to hire an attorney.

What is probation?  Well, the actual word probation roughly translates “to prove yourself” in Latin.  This is in practice what probation is in our criminal justice system.  Probation is a way for a defendant to prove to the court that he will obey the law if allowed to stay out of prison.  If you read an actual criminal sentence when someone is put on probation it clearly states what probation is.  When a Judge puts defendants on probation the Judge is in fact sentencing that defendant to incarceration but suspending that sentence of confinement and placing that defendant on probation instead.

Put into everyday English, what the Judge is really saying when he puts a defendant on probation is:  “I am going to give you a chance not to be locked up but you have to follow my rules and stay out of trouble.  If you violate the law or don’t follow the instructions of your probation officer I will lock you up.”

Of course, not all probation is the same.  For misdemeanor offenses, probation can be way to collect fines.  For example, if you get a speeding ticket and cannot pay the fine at the time of your court date, probation can be the mechanism whereby the Court collects fine money.  For more serious misdemeanor offenses, probation is way for the court to ensure that defendants complete mandated courses such as driver safety or DUI school and complete court ordered community service.  In Georgia, misdemeanor probation is often administered by private companies that contract with local government to supervise probationers.

In Georgia, felony probation officers are State employees.  These felony probation officers have arrest powers and wide authority to enforce the rules of probation.  Violating felony probation is a serious offense, which can land a probationer in jail or in a state probation detention center.  For serious violations of probation, a Judge has the power to revoke a probationer’s full sentence and send that defendant to prison.

Criminal convictions can suspend your driver’s license.  Georgia law requires the Department of Driver Services to suspend driver’s licenses of those convicted of many criminal offenses and traffic violations.  The following is a list of criminal offenses and traffic violations which will automatically suspend your driver’s license.

• DUI – this is one everyone knows about.  Get a DUI and your license will be suspended.  More details in a future post as regards DUI license suspensions.
• Fleeing or attempting to elude a police officer. 
• Racing
• Vehicular Homicide
• Leaving the scene of an accident
• Driving while your license in suspended or revoked
• Refusal to weigh (at a weigh station not because the officer wants to know if you underestimated on your driver’s license.)
• Gas Drive Off
• Driving without Insurance
• Drug convictions (even of misdemeanor Marijuana).
• Getting 15 points within 24 months.
• For drivers under 21 different rules apply (more in a future post).

The above list is not exhaustive and you should always consult an attorney to find out how a particular charge could affect your driver’s license.  Even if you plead guilty to charge there are ways to mitigate the damage to your driving record and save your driver’s license.  For example, a nolo plea to certain offenses can prevent your license from being suspended.  So, always consult an attorney before you go to court.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.

Some people and especially young people today think Marijuana is no big deal.  In some parts of the county it is almost legal (The federal government still says it is illegal).  Well, that may be true in some parts of the county and in Europe but not in Georgia.  In fact, possession of Marijuana can land you in jail for a long time in Georgia.  Possession of an ounce or less of marijuana is a misdemeanor punishable by up to twelve months in jail.  Possession of over an ounce of marijuana is punishable by up to ten years in prison.  And remember that an ounce is not that much weight.  In fact, there are 16 ounces in a pound.  In other words, you don’t have to a be a big time drug dealer to be charged with felony possession of Marijuana. 

What if you are caught growing or selling Marijuana?  Any person who is guilty of trafficking in marijuana can go to prison for up to 30 years.  Anything other than the simple possession of less than an ounce of Marijuana is a felony in Georgia.  Even if you don’t go to prison a felony record can keep you from getting jobs and deprive you of your rights as an American citizen including the right to vote.

You don’t even have to be caught with Marijuana to be arrested for it.  Merely having a pipe or other object used to smoke Marijuana can land you in jail.  Georgia Code § 16-13-32.2 makes it “unlawful for any person to use, or possess with the intent to use, any object or materials of any kind for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana”. 

Are Georgia’s Marijuana laws wrong, unfair, antiquated relics of the past?  Did Georgia not notice the 1960’s?  Well, when it comes to whether you violated the law those questions are irrelevant.  As of right now the law in Georgia makes Marijuana illegal and no amount of political or philosophical arguments will persuade a police officer not arrest you if caught with Marijuana.  Nor are such arguments convincing to a Judge or Jury.  If you want to change the law then you should write your elected officials.  In the meantime, you take a risk of jail time and of having a criminal record if you smoke Marijuana.  However, if you are arrested for Marijuana then you should always consult an attorney.

The simple answer to the above questions is that one should not drink any amount and drive.  The wise course is to drink in moderation and to always to have a designated driver or take a taxi.  However, Georgia law does not prohibit the consumption of alcohol nor does it prohibit you from drinking a small amount and then driving.  The law does prohibit you from driving a motor vehicle while having a blood alcohol content (BAC) of .08% or higher for adults, .04% for commercial drivers and .02% for those under 21 OR being under the influence of alcohol to the extent that it is ‘less safe” for that person to drive.

There are two basic ways a person can be prosecuted for driving under the influence of alcohol.   The first is to have a blood alcohol content above the “per se” legal limit.  The “per se” limit is .08% or higher for adults, .04% for commercial drivers and .02% for those under 21.  The State need merely be able to introduce evidence that a person’s blood alcohol level is above the “per se” limit to convict a person of DUI. 

However, if an adult non-commercial driver has a blood alcohol content below .08% that driver can STILL be prosecuted!  The law has “presumptions” and “inferences” for drivers who have a blood alcohol content below the “per se” limit.  A blood alcohol of .05% or lower provides the defendant with a presumption or inference that the defendant was not impaired to drive.  This inference can be rebutted by the State by evidence of impairment.  For example, if a person has a blood alcohol level of .05% but there is evidence that they were showing clear signs of alcohol impairment then the State can still prosecute that person for DUI.  A blood alcohol content of .06% or .07% is a neutral position where neither the State nor the prosecution can take advantage of an inference.  So, remember even if your blood alcohol level is lower than the .08% per se limit you can still be arrested, prosecuted and convicted of DUI.

The second type of prosecution is a “less safe” prosecution.  The elements of a “less safe” prosecution are that a driver is under the influence of alcohol to the extent that the driver is less safe to operate a motor vehicle.  This is how a driver is prosecuted when they refuse to submit to a test by breath, blood or urine of their blood alcohol content.  Typically, to convict a driver of a “less safe” DUI the State must have evidence of bad driving and testimony of physical impairment typical of someone under the influence of alcohol. 

So, how do you know if you have had too much to drive?  The simple answer is that you cannot know for certain.  The law gives prosecutors many ways to convict you of DUI so it is best to be cautious and to avoid driving after having any amount of alcohol to drink.  However, if you do find yourself in court for DUI it is wise to hire experienced counsel as quickly as possible.  A DUI can suspend your driver’s license, raise your insurance, cost you a job, and land you in jail.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.

What is a Bail Bondsman or a Bail Bond Agent?

A Bondman is a person or company that will act as a surety and guarantee the appearance of the defendant in court.  Bondsmen have agreements with local courts and the sheriff to operate in a particular county and must post money with the court to be used if the defendant fails to appear.

The bail bondman promises to pay the full amount of the bond if the defendant does not appear in court.  In exchange, the bondman charges a fee.  Usually, this amount is 10 to 15 percent of the bond.  This 10 to 15 percent fee is not returned at the end of the case and is how the bail bondman stays in business.  The amount a bondman can charge is usually set by law and varies from state to state.

If the defendant fails to appear in court then a bondman can force the defendant to come to court.  Sometimes this is done by using the services of a bounty hunter or by the bondsman themselves.  The law on the use of bounty hunters and how and when a bondman can apprehend a “bail jumper” varies from state to state and is illegal in some states.

While no one wishes to part with the fee a bail bondman will require it can be a good option if you are asked to help a friend or relative get out of jail.  By using a bail bondman instead of putting up a cash or property bond, you shift the risk of the defendant not appearing in court to the bail bondsman.  To find a bail bondsman look in the phonebook or online.  Each county has a list of approved bondman.  Often a list of approved bondsman is listed at the local jail.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.

What is a Bail Bond? 

What is a Bail Bond?  A Bail Bond is an amount of money or property put up by the person arrested or by a bail bondman to ensure that the defendant will if released appear in court.  The main types of bond are as follows.

A Cash Bond or cash Bail is when the person arrested pays the entire amount of the bond to the Court or to the local Sheriff.  For example, if the bond is $10,000 then the person arrested or someone on his/her behalf must post the entire $10,000 usually plus a processing fee.  This amount will be returned once the defendant’s case is over.

A Bail Bond or surety bond is used when a person cannot afford to pay the entire amount of the bond.  This is usually done by the person arrested obtaining the services of a Bail Bondsman.  The bail bondman promises to pay the full amount of the bond if the defendant does not appear in court.  In exchange, the bondman charges a fee.  Usually, this amount is 10 to 15 percent of the bond.

A Property Bond is when a defendant or another person provides real property (land or a house) instead of cash to get a bond.  However, if the defendant fails to appear in court then the property can be lost to the court.  The rules for using property bonds vary by locality.  Usually, the property must be in the State where the Defendant is arrested.  For example, if arrested in Catoosa County the property used must be in the state of Georgia.

An O.R. or Own Person Recognizance Bond is when a Judge allows a person to be released without bail being posted.  This is usually done when a person is arrested for a very minor crime or when it is very unlikely the person will not appear in court.  Sometimes this is also done because the defendant has health problem, is pregnant or for reasons of compassion.  Needless to say, it is uncommon.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.

How is a Bail Bond set?

When a person is arrested for an alleged crime, the person is taken to a police station where they are “booked”.  This booking process usually involves the person giving the police officer his/her address, phone number, age, date of birth, physical appearance and so forth.  Usually, a criminal background will be run to see if the person has any outstanding warrants, fingerprints and mugshots will be taken.  The booking officer will note any property taken from the person arrested and then usually the person will be allowed to make a phone call.

What then?  Does the person languish in jail awaiting trial?  Usually, the answer is no.  For less serious crimes (misdemeanors), a person may have a bond set automatically.  For example, if you are arrested for Driving on a Suspended License you may be able to make bond and be released almost immediately after you are booked.

For more serious crimes, the person arrested may have to wait (usually less than two days) until a Judge sets a bond.  In Georgia, a Magistrate Judge usually does this.  In Georgia, a Magistrate Judge can set a bond for all but the most serious of criminal offenses.  This is sometimes called ‘First Appearance”.  The person arrested makes a “first appearance” in front of the Judge and the Judge sets a bond.  In these situations, an attorney is not necessary to have a bond set.  However, an attorney can speed up the process and request the Judge to lower the bond.

For the most serious of crimes (felonies), a Superior Court Judge must set a bond amount.  When deciding on an amount the judge will consider the defendant’s criminal history, the nature of the crimes, the defendant’s ties to the community, the risk that the defendant is a flight risk and most importantly if the defendant is a danger to the alleged victim or the community.

For these, more serious crimes an attorney is often needed to file a motion for the court to set a bond.  Sometimes, a defense attorney must argue at a bond hearing for the Judge to set their client a bond.  At these, bond hearings the District Attorney may argue to deny bond or request the Judge set a high bond.  If the person is on probation or parole his or her bond may denied altogether.

How the process of getting a bond set varies from state to state and from county to county by law and local practice.  For example, in some places there is bail schedule that recommends the amount to be set for each crime.  In other places, the amount set may be more arbitrary.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.