A Connecticut Lawyer claims that the Intoxilyzer 5000 discriminates against African Americans too. This is the same DUI Breath Test used in Atlanta DUIs and Georgia DUIs.  We already know about the gender basis in alcohol breath testing as given women and men of the same weight who consume the same amount of alcohol, the women will test higher.  Now the Intoxilyzer 5000 discriminates against African Americans too.  Could DUI law be any more unfair? The Connecticul lawyer is planning to present evidence from Dr. Michael Hlastala, a lung physiologist at the University of Washington, who examined research of other lung physiologists, and concluded that the lung capacity of African American males is an average of 3 percent less than white males which exaggerates their breath alcohol test results.  Query: If men, women, and African Americans have breath alcohol variations shouldn't there be different legal limits for different genders and races.  Can you say equal protection argument? What is the legitimate governmental interest in treating genders and races the same when they are physiologically different?

The Georgia Court of Appeals has turn DUI probable cause analysis upside down with the new case of Handley v. State, A08A1577, decided October 24, 2008.  Probable Cause is what is required to arrest someone for a crime.  It is a very low standard. Frequently referred to as the speed bump on the road to justice.  It is the opposite of a reasonable doubt.  In the past the Court of Appeals has found that anything from odor of alcohol to an actual act of less safe driving is required to find probable cause basically up holding the trial court's discretion on an any evidence standard or right for any reason.  In a situation, when facts are undisputed, the Court of Appeals can judge the evidence against the legal standard as a trial court would which is called "de novo" review.  That is what happened in the Handley case.  It is remarkable because it has previously been thought that a trial court had pretty much unrestrained discretion to find probable cause to arrest for DUI, less safe or not.  Now that has changed.

In Handley, the Athens-Clarke County Sheriff's Deputy pulled over the driver for no tag, smelled alcohol, got the driver to admit to drinking, and administered a positive or negative portable breath test which registered positive. That is it.  He arrested the driver for DUI.  She tested over the legal limit at the jail on the Intoxilyzer 5000.  The Georgia Court of Appeals held that is not enough.  Odor, admission of drinking and a positive alcosensor is not enough to establish probable cause for a DUI arrest as a matter of law.  This becomes the new base line in DUI arrests.  So no moving violation, odor, positive portable breath test and your Atlanta or Georgia DUI should be dismissed in court if there are no other indicators of DUI driving.  

DUI Courts are state funded court programs that generally offer rehabilitation rather than incarceration for repeat DUI offenders.   The Fulton County DUI Court in downtown Atlanta has evolved  into one of the more reasonable programs for repeat DUI offenders.  There are 13 DUI Court programs across the state. Some have good reputations and in some jurisdictions knowledgeable attorney's recommend trial or jail over DUI court.   The programs generally involve weekly or biweekly court attendance in the afternoons, weekly AA attendance, weekly counseling, random drug screens and home inspecitions.  This can be difficult if not impossible for defendants who have lost their driver's license for one year and are having to take a 17 week DUI risk reduction course to get their license back anyway.   In Fulton County the DUI Court is presided over by Judge Susan Forsling.  Judge Forsling is generally regarded as reasonable and fair but firm.  In Fulton County in return for a probated sentence DUI Court participants are required for the first 90 days to attend three, two and a half hour treatment sessions; three Alcoholics Anonymous (AA) or 12-step meetings every week; two random drug and alcohol screens a week; attend court twice a month, expect random home visits and visit probation every month.  If they violate the 90 clock starts over and they have to go through all of that again.  In some counties the DUI court requires similar to Fulton Counties can last for up to 18 months.  Some defendants feel that they will spend less time in jail than DUI court and figure they will probably lose their job and without tranportation fail to make it to one of their meetings.  Other Defendants will do anything to avoid even a day of jail.  It is a decision that must be weighed carefully.   

In 2002, the Governor’s Office of Highway Safety provided grant funding from the National Highway Traffic Safety Administration to the Administrative Office of the Courts of Georgia to establish specialized court dockets to manage chronic DUI offenders (those with two or more convictions for driving under the influence). Three DUI Courts were implemented in the State Courts of Athens-Clarke County, Chatham County, and Hall County to provide intensive judicial oversight, substance abuse treatment, and offender accountability.

Clayton County in Jonesboro, Georgia; Gwinnett County DUI Court in Lawrenceville, Georgia; Cherokee County in Canton, Georgia; DeKalb County in Decatur, Georgia; Troup County in LaGrange, Georgia.  For more information on the Fulton County DUI Court: Click Here

The following is an estimate of DUI arrests in selected Metro Atlanta Counties for one week based on publically available records.  The information is only as accurate as the public records from which it is obtained.  

*Percent under 1000 means a very low risk of DUI arrest per population.  Percent over 2000 means DUI Hot Spot very risky to Drive after Drinking.  If you would like your counties statistics shown please contact us with information on obtaining the public records.

The following is an estimate of DUI arrests in selected Metro Atlanta Counties for one week based on publically available records.  The information is only as accurate as the public records from which it is obtained.  

*Percent under 1000 means a very low risk of DUI arrest per population.  Percent over 2000 means DUI Hot Spot very risky to Drive after Drinking.  If you would like your counties statistics shown please contact us with information on obtaining the public records.

Tucson, Arizona police made approximately 6000 DUI arrests in the past two years which were primarily based on the test results fo the Intoxilyzer 8000.

Pima County, Arizona, Superior Court Judge Deborah Bernini gave CMI Inc. until Monday to turn over the computer source code in an electronic form to be reviewed by Defendants' attorneys and their experts. CMI has refused to release the computer source code flaunting court orders across the country. DUI Defense attorneys have long alleged the Intoxilyzer is not accurate enough to be the basis for criminal convictions.

More and more DUI cases are being thrown out in local Arizona courts because of CMI's curious resistance to disclose the computer source code of the Intoxilyzer.  By disobeying court orders, the CMI, Inc. the manufacturer of the Intoxilyzer has earned over $1 million in fines from Florida Courts according the Associated Press.

CMI claims it will reveal the code, on paper, if all recipients signs a nondisclosure agreement. Arizona Defense attorneys have refused to do so.

The following is an estimate of DUI arrests in selected Metro Atlanta Counties for one week based on publically available records.  The information is only as accurate as the public records from which it is obtained.  

*Percent under 1000 means a very low risk of DUI arrest per population.  Percent over 2000 means DUI Hot Spot very risky to Drive after Drinking.  If you would like your counties statistics shown please contact us with information on obtaining the public records.

The following is an estimate of DUI arrests in selected Metro Atlanta Counties for one week based on publically available records.  The information is only as accurate as the public records from which it is obtained.  

*Percent under 1000 means a very low risk of DUI arrest per population.  Percent over 2000 means DUI Hot Spot very risky to Drive after Drinking.  If you would like your counties statistics shown please contact us with information on obtaining the public records.

A Drug Recognition Expert (DRE) is a police officer who indicates they  can recognize whether someone is on drugs, what kind of drugs they are on, and whether their ability to drive has been impaired. The theory of  the DRE is that they claim to be able to determine whether someone is under the influence of drugs through a visual evaluation. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 19.

DREs frequently administer their tests when someone is detained to determine if they are impaired by alcohol or drugs to the extent they are rendered less safe to drive under Georgia law, but passes a breath test or other field sobriety tests designed to determine alcohol impairment. The DRE's testimony may  provide better evidence for an Atlanta DUI or Georgia prosecution than Georgia Bureau of Investigation toxicology reports.  Blood tests may not measure the quantity of drugs taken and, even if they do, may not show a level high enough to prove impairment. Urine tests do not accurately pinpoint when the drugs were ingested and may not show the quantity. Therefore blood and urine tests alone may not be sufficient to prove the person was affected by drugs when they were  driving in Georgia. The DRE contends he can provide the link between the  GBI toxicology report and the less safe driving by reason of ingestion of drugs under Georgia DUI law. The DRE offers testimony that the defendant failed the physical tests administered by the DRE, showing that the defendant may be impaired by the drugs in his system. Lawyers Weekly USA , "Growing New Practice  Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.

The DRE should advise that his examination of the suspect is broken into 5  parts: 

1. Coordination tests.  The suspect must perform the "walk and turn," "one leg stand," "finger  to nose," and "Romberg balance" test (where he must estimate when 30  seconds have passed while standing with his head tilted back and his  eyes closed). 

 2. Eye tests.  The DRE checks the suspect's pupil size under various lighting  conditions. He checks for "horizontal gaze nystagmus" where the eyes  twitch when looking off to the side and "vertical nystagmus" where the  eyes twitch when looking up. The DRE also checks to see if the eyes  cross normally when looking down at the nose.

 3. Vital signs.  The DRE measures the suspect's pulse, temperature and blood pressure.

 4. Muscle tone.  The DRE feels the suspects arm muscles to see if the are loose and  rubbery or tense.

 5. Visual inspection.  The DRE inspects the suspects mouth and nose for signs of drug  ingestion, the presence of drug debris and discoloration. The DRE   checks the suspect's arms for needle marks. Lawyers Weekly USA ,   "Growing New Practice Area for Drunk Driving Lawyers" dated September   20, 1999, p. 20.

 The DRE then determines whether the results of the exam performed on the suspect match symptoms associated with 7 drug classes. The drug classes used are central nervous system (CNS) depressants, CNS stimulants,  hallucinogens, phencyclidine, narcotic analgesics, inhalants, and  cannabis. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 468. For example, a person on a depressant should have normal pupils, but twitching eyes on the   nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and   slurred speech. Persons on cannabis should have dilated pupils, no eye twitching, a high pulse rate and blood pressure, their eyes may not  cross normally when they look down their nose, and they may have  disorientation. The DRE also interviews the arresting officer, reviews  the alco-sensor and Intox. 5000 results and asks the suspect if he has been using drugs. Finally, the DRE concludes whether the suspect is behaviorally  impaired, if the impairment is drug-related, and the drug class or combination of classes likely to be causing the impairment. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated   September 20, 1999, p. 20.

Drug Recognition Experts are Not Recognized by Georgia Courts  There is Georgia DUI or Atlanta DUI Court decision from the Georgia Supreme Court recognizing the reliability of DRE testimony as proof of driving under the influence.  The written opinions which permit the admission of DRE evidence either say the evidence was not subject to timely objection or do not address this issue. In Atlanta DUI or Georgia DUI cases, a party may challenge the admissibility of expert testimony that is based on theories or technologies that have not “reached a scientific stage of verifiable certainty.” Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982). DRE testimony is a “Novel Scientific Theory and Technique” as contemplated in Harper, supra. After a procedure has been recognized in a substantial number of jurisdictions, a trial court may take notice, without receiving evidence, that the procedure has been established with verifiable certainty. Harper, supra at 525-526(1), 292 S.E.2d 389. A trial court may also decide a procedure or technique has reached a “scientific stage of verifiable certainty,” from evidence presented to it by the parties or an expert or based on exhibits, treatises, or the rationale of cases in other jurisdictions. Id. at 525, 292 S.E.2d 389. A review of the decisions of the Georgia Court of Appeals, our Georgia Supreme Court and the courts of other states reveals only one decision of a major appellate court in Minnesota in which the “DRE” has been discussed as a reliable method of drug detection.” Id. It is the Georgia Prosecutor's burden to establish the reliability of this particular test by expert testimony or to offer authority subsequent to Harper to prove that this urine testing procedure had become scientifically established with verifiable certainty in Georgia or in other jurisdictions. Id. Any DRE testimony would not qualify  as reliable evidence using the Harper, test or the Daubert test for federal court. Harper, supra; See also, Lawyers Weekly USA ,  "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 20.

   A DUI Defendant can challenge the accuracy of the evaluation and the DRE's qualifications to perform the  tests. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  Laboratory studies were done in 1996 and 1998. The 1996 studies were  undertaken to determine the validity of the variables of the Drug  Evaluation and Classification (DEC) evaluation in predicting whether  research volunteers had been administered ethanol, cocaine or marijuana  and to determine the accuracy of DREs in detecting whether subjects had  been dosed with ethanol, cocaine, or marijuana. Using discriminant  function analysis, it was found that 17-28 variables of the DEC  evaluation predicted the presence or absence of each of the three drugs  (ethanol, cocaine and marijuana) with a high degree of sensitivity and  specificity and low rates of false-positive and false-negative errors.  The five best predictive variables were nearly as accurate as the entire  subsets of 17-28 variables. When DREs concluded subjects were impaired  by ethanol or drugs or both, their predictions were consistent with toxicological analysis in 51% of cases. When ethanol-only decisions,  which were guaranteed to be consistent with toxicology, were excluded,  DREs' predictions were consistent in 44% of cases. Journal of Analytical  Toxicology, "Laboratory Validation Study of Drug Evaluation and   Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20,   October 1996, p. 475. This study provides a list of the symptoms that  were found to be the best predictors of impairment by a particular class  of drug. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 470, 472, 474. If these symptoms are not consistent with those found present in the client on the DRE  report, this may call into question the validity of the DRE's  conclusion.  

Aside from challenging the accuracy of the DEC, Defendant can challenge the DRE's qualifications. The DRE  is not a medical doctor and has only had a nine day course and is therefore not qualified to make a subjective evaluation of the suspect's physiological symptoms. An inquiry should be made into what training the DRE has been given in distinguishing the effects of drugs from those of other medical conditions. Only one and a  half pages of the 570 page DRE training manual covers medical conditions  that can be confused with drug impairment. If the DRE's training history is questionable, inquire to see how well he did in the DRE course and  what continued training he has had in DRE techniques. The DRE is supposed to maintain a running log which DREs are supposed to keep to record and measure  success rates. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 21. External conditions can effect the alleged DRE symptoms.    For example, high blood pressure, high pulse rate and muscle rigidity  can be caused by the stress of an arrest or accident. Other symptoms may be caused  by mental conditions such as attention deficit disorder or mania or delirium, or a medical condition such as diabetes, hypertension or an  abnormal movement disorder. There are many natural causes for nystagmus including strobe lights and non-alcohol or drug related diseases. In cases involving accidents, symptoms may be due to a  concussion. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  The Officer's DRE manual can be used to find potential  mistakes made by the DRE while conducting the test. The manual warns  that any deviation from the protocol affects the conclusion. So if the  DRE does not administer the evaluation under the conditions recommended  by the manual, this indicates the  results are not reliable. Lawyers Weekly USA , "Growing New Practice   Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21.  Other possible arguments may emerge by comparing the DRE's report with  the notes of the arresting officer. There may be inconsistencies.  Even if the DRE correctly determines  that the suspect was affected by drugs, that does not necessarily mean the suspect's driving ability was impaired. Lawyers Weekly USA ,  "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 21.   Never take for granted that DRE techniques are admissible.