03.24.09
Posted in Uncategorized at 2:49 pm by Kimbrell & Burgar, LLC
Last month we posted an update on HB 92, a bill which seeks to impose mandatory ignition interlock devices for first-time DUI offenders who tested over.15 grams/liter. The bill has not progress too far, but it is clear MADD has made it a priority item for its efforts in Georgia and several other states. If passed, this bill would represent the most significant increase in DUI penalties we have seen in quite some time.
In other matters, it seems that legislative efforts to require seat belt usage in pickup trucks has failed again. The legislature has tried to make seat belts a requirement for pickup trucks for decades, but these efforts have always met with stout resistance from rural legislators. Legal or not, our firm strongly suggests everyone use their seatbelts. We see far to often what happens when folks fail to use these safety devices.
The proposed “super speeder” law, HB 160, has passed in the House and has moved to the Senate. This bill, among other things, adds an additional $200 fine to all speeding tickets where the alleged speed is over 85 mph on highways, or 75 mph on other roads. For those with any familiarity with driving habits in Georgia, this bill, if passed, is likely to effect everyone as we all seem to be leadfoots in this state.
K & B, llc
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03.18.09
Posted in Uncategorized at 4:40 pm by Kimbrell & Burgar, LLC
There have been many recent newspaper articles expressing concern about jurors who do independent internet research, blog, twitter, etc., about cases on which they are empaneled to serve. This issue is not specifically a Georgia DUI issue, but it is one of concern to a lot of folks in our profession, and it tells us a lot about the sophistication of jurors and their probable expectations.
First, to all potential jurors, it is always a bad idea to disregard a judge’s instructions regarding juror conduct. The Defendant in your case may be going to jail, you don’t want the cell next to him.
But what do these juror actions tell us? It seems we must all understand that many jurors approach their task with a much higher degree of technical sophistication than had been previously presumed. As it applies to DUI, we will probably see jurors with a better understanding of many of the technical and scientific aspects of a typical DUI case. Years ago, we referred to a “CSI” effect, where jury surveys showed an expecation that the State present sophisticated scientific evidence like what was seen on the TV show. Soon thereafter, every local police department seemed to have purchased a van with “Crime Scene Investigation” stenciled on the side.
It seems we have progressed far past that initial “CSI” effect. Jurors have moved beyond the mere need to have sophisticated machines shown to them. They seem to want a reasonable explanation of how they work and whether they are precise. Further, with such ready access to the internet, it seems jurors want to confirm for themselves whether a breath test machine is indeed accurate, if certain medications do impact a driver’s abilities, or if the source programming code to the state chemist’s testing equipment has any inherent flaws. These expectations must be addressed in any DUI defense.
We expect the courts will struggle for some time with the issue of jurors ignoring court instructions on outside research and that this matter will be eventually resolved in some form or fashion. However, the lesson must not be ignored. A proper defense, especially in DUI, requires a keen understanding of the technical and scientific issues involved so that the jurors will be satisfied with what is presented.
K & B, llc
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03.13.09
Posted in Uncategorized at 11:05 am by Kimbrell & Burgar, LLC
Perhaps the most curious of the field sobriety exams in DUI investigations is the HGN (horizontal gaze nystagmus) test. Few drivers have any idea of what it is or why officers will check their eyes in a DUI investigation. It is not uncommon for an attorney to hear from their client the statement “I know I passed the eye exam” without the client having any understanding of what the officer was actually checking.
The National Highway Traffic Safety Administration (NHTSA) describes nystagmus as “an involuntary jerking or bouncing of the eyeball that occurs when there is a disturbance of the vestibular (inner ear) system or the oculomotor control of the eye,” and horizontal gaze nystagmus (HGN) as “a lateral or horizontal jerking when the eye gazes to the side.” In essence, HGN is a type of eye twitch which can be caused by many things, including central nervous system depressants such as alcohol. Many, if not most, officers have been trained to look for this jerking as a sign of alcohol impairment.
The HGN test is the standardized method of detecting HGN developed by NHTSA as part of the standardized field sobriety test battery for use by law enforcement in DUI investigations. Officers are trained to looked for 6 clues by moving a pen or other stimulus back-and-forth across a subject’s eyes. An observation of 4 of 6 or 6 of 6 clues is considered an indicator of impariment according to this test. Some states accept the HGN test as a valid tool, while others question the dubious scientific nature of this exam. In Georgia, however, it is accepted by the courts as a valid scientific indicator of impairment due to alcohol. Essentially, the only thing a prosecutor must do to admit the officer’s observations and test results into evidence against a DUI defendant is sufficient proof that the officer administered the HGN exam consistently with his training. The jury will also be instructed that the HGN test is based on accepted scientific principles.
Since Georgia law places such significance on this strange “test”, it is important that a driver in this state understand at least the basics about it. While nystagmus may be caused by alcohol impairment, it can also be caused by dozens of other factors including head injuries, blood pressure medication, flashing lights, inner ear problems, etc. Some people even have it naturally! A driver must be aware of these other causes of nystagmus as law enforcement may consider the resulting nystagmus to be caused by too much alcohol, rather than by, for example, medication for hypertension (Lasix, Vasotec, Adalat, etc.), which will lead to an arrest for DUI. Of course, like all field sobriety tests in Georgia, participation in an HGN test is strictly voluntary. It would be wise to know it before you do it!
k & b, llc
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