It used to be in the state of Georgia that the punishment for DUI convictions increased if you had more than one such conviction in a five year period.  You may or may not know that the period for adding DUI convictions together, resulting in enhanced punishment, is now ten years in the state of Georgia.

Ten years is a long time.  The chances are very good that if you enjoy drinking alcohol and if you foolishly choose to drive after drinking alcohol, then you’ll find yourself facing enhanced punishment for DUI convictions.   It’s simple math…the chance that you’ll be arrested for DUI more than once in a ten year period is at least twice what it was for a five year period.  Think about that and be wise and be cautious.

Why do I consider child custody cases to be some of the most important cases to be tried?  It is because the best adult of the two parents needs to raise the child in the event of divorce and only a good adult should participate in parenting a child under any circumstance. That’s why child custody cases are important.

A child’s future development can be enhanced or destroyed based on which adult raises the child or participates in the child’s parenting.  If a drug-addicted, promiscuous woman raises a child, then that child’s chances of having a healthy childhood will be substantially diminished.  The same, of course, is true for a child raised by a drug-addicted, irresponsible man.

A child will be an achiever or a loser, depending on what sort of adult raises the child.  The sex of that adult is pretty much irrelevant.

I have seen a lot of men who are involved in child custody cases choose to defer to the mother of the child when it comes to which of them gets to raise the child, say, after a divorce.  There are two reasons for that, in my experience.  One is that men generally have become so wussified by this society that they are not willing to scrap for the right to raise their child.  The other is some sort of misguided deference to the mother’s presumed better ability to raise the child.  Neither of these two reasons withstands scrutiny.

If you, as a man, feel you would be the better parent for the child, fight for the right to raise that child.  It will matter.  I’ve seen too many men whose children are raised by misfit women and the children end up being ignorant, ill-behaved, self-centered little brats and then worthless young adults.

Women tend to fight harder than men do for custody of their children and, because of that, they generally obtain custody of the children after divorce (although that is not necessarily true if I represent the man).  But, having said all that, I’ve seen many women who obtain or who already have custody of their child then allow a misfit man (the father)  to continue to play a major role in the child’s life, even when the man is so sorry he should be under the prison, not just in it.  I ask these women why and the answer is always something like, “Well, I think the child needs their father.”  And, I want to shout…”Not if the man is going to teach them nothing but how to be a complete loser!”

So, when it comes to child custody, each case must be judged on its own merits.  The fitness of a particular adult to parent a child or to participate in parenting a child must be appraised based on the character of the particular person.  There should be no presumptions or assumptions about whether or not an adult is suited to parent a child.

I’ve been asked before whether or not a person stopped for DUI should do field sobriety testing.  First, let me point out that your participation in field sobriety testing if asked to do so by a law enforcement officer is completely voluntary.  The law is that the officer does not have to tell you this when he asks you to do the tests, but you DO NOT have to do field sobriety testing when you are stopped for DUI.  My best advice is to politely and respectfully decline when the officer asks you to participate in field sobriety tests.

I am trained in field sobriety testing and I’ve dealt with many cases of DUI that involved field sobriety testing.  I have watched DUI suspects do well and do poorly on video of their field sobriety testing.  But, it doesn’t seem to matter much whether they do well or poorly, they get arrested and prosecuted for DUI.

In my opinion, all you are doing if you participate in DUI field sobriety testing is helping the officer make his case against you for DUI.  You can bet, if a law enforcement officer is asking you to do field sobriety testing, the chances are that he has already decided that he is going to arrest you for DUI.

Don’t forget, you have the right to refuse, and I suggest you do so.

If you are interviewing an attorney trying to decide whether or not that attorney will do the right job in defending you against a charge of DUI, here is a tip.  If, during that initial conversation, the attorney does not state that he or she wants to go to the scene of the traffic stop, DO NOT hire that attorney.

I always go to the scene of the stop.  There are things you can learn, as defense counsel, only by having your boots on the ground at the site.  I want to see the texture of the surface upon which my client did field sobriety testing.  I want to know the slope of the surface upon which my client was trying to stand on one foot, for example.  I want to experience the lighting, if possible.  I want to be oriented to the traffic that passes by the spot of the stop.  There are many reasons why going to the scene of the stop is mandatory, in my opinion.

In other words, if the attorney you’re talking to is either too lazy or too inexperienced to know the importance of visiting the scene of the stop, you’re talking to the wrong attorney.  Do not hire that individual.

Citizens of Georgia need to be aware that the fact a person is sitting behind a bench in the courtroom wearing a judge’s robe does not mean that person is a well qualified attorney.  Our judges, state and superior court is what I’m talking about, are elected by popular vote or, in some instances, appointed by the governor.  So, think about it, the person sitting as a judge on your case has won a popularity contest, i.e., has been elected, to serve as judge.  Or, the person sitting as a judge on your case has been appointed by the governor to serve as judge.  A person elected by the people of the community has just won that position because his or her face was on the most billboards in the area, nothing more.  His or her election to the position of judge has nothing to do with his or her qualification to serve as judge.

I have personally seen judges appointed by the governor who were definitely not the most qualified candidate for the judgeship when the pool of candidates was objectively considered.  The governor made his selection based on political considerations of one sort or another, it was not a selection based on the quality of the candidates.

So, you can have a judge in your case who has won a popularity contest or one who was appointed to the position for political reasons.  In neither case has a qualified person necessarily been placed behind the bench in judicial robes.  Sometimes the consequence can be horrible, absolutely irrational rulings in a case.

But, take heart.  Often, a candidate who is less than qualified to be a judge, once elected or appointed, can, in fact, become an excellent judge if he or she applies himself or herself  to learning the position and wielding their power with care and great discretion.  I have seen that dynamic at play and I’m happy to state that most of the time this is the end result.  I believe it is because most attorneys who aspire to a position of leadership, like that of judge, have good self esteem and are generally honorable people.  As such, they want to do a good job in the position they occupy.

But, don’t be too dismayed with your counsel if the judge in the case renders a decision that makes no sense whatsoever.  Attorneys practicing in court have to apply their trade in front of the judge who is assigned to the case and the quality of the outcome is often outside of the control of your counsel in spite of his or her best efforts.

I have practiced a good bit in juvenile court in the state of Georgia, mostly in child deprivation cases.  Those are cases where the Deparment of Family and Children Services is petitioning the juvenile court judge to allow that department to keep a child in its custody, most often removing the child from the home and the child’s parents.  It is my conclusion that the juvenile courts in Georgia are the forum where the constituional rights of Georgia citizens are most at risk of being completely lost.

My experience has been that juvenile court judges, in deprivation cases instituted by the Deparment of Family and Children Services, grant the relief sought by the Department of Family and Children Services, approving the actions of the department, based on little or no evidence of deprivation.  In my opinion, there are two reasons for this.  The juvenile court judges would rather err on the side of protecting the child and the juvenile court judge will not be reversed on appeal as the Georgia Court of Appeals defers to the fact-finding of the juvenile court judge and will not reweigh the evidence presented in juvenile court or judge the credibility of witnesses who testified in juvenile court.

These two considerations result in children routinely being removed from their home in the state of Georgia on really flimsy grounds, to the detriment of the parental rights of the child’s parents, not to mention the parents’ constitutional right to due process and equal protection of the laws. The fact that the rulings of Georgia juvenile court judges are generally to be upheld on appeal results in the appellate court giving deference to the fact-finding of the juvenile court judge to a ridiculous degree.  For example, if a parent is on the witness stand in juvenile court testifying and trying to regain custody of their child, that parent need not get angry or upset while testifying.  The demeanor of the parent while testifying can actually serve as evidence which will support the juvenile court’s finding of deprivation if it is challenged on appeal.  So, what that means is if a parent becomes righteously indignant because the Department of Family and Children Services has taken custody of his or her child without good cause, and if that indignation shows through while that parent is testifying, the juvenile court judge can decide that this indignant behavior is evidence of psycholigical instability on the part of the testifying parent and can use that behavior itself to help reach a determination that the child is a deprived child.  This decision based on such, in my view, inappropriate evidence, will be upheld by the Georgia Court of Appeals if the juvenile court judge’s finding of deprivation is challenged on appeal.

So, the bottom line is….when you have to appear in juvenile court in the state of Georgia in a child deprivation action instituted by the Department of Family and Children Services, be aware that the cards are stacked against you from the beginning and be prepared to fight.  If you walk into that courtroom expecting fair and consitutional treatment, you’ll be badly, badly disappointed.

At the inception of a criminal prosecution, sometimes the prosecuting authority will offer the suspect the opportunity to take a polygraph exam to “help eliminate them as a suspect”.  Don’t do it!  This can’t be stated strongly enough.  Even though the results of a poygraph exam cannot be used against the suspect in court, admissions and confessions made during the polygraph exam or during the lead-up to the polygraph exam can be.  The result of this little distinction is that the state’s prosecutors will set up the suspect’s polygraph exam with one of their polygraphers in charge.  The state’s polygrapher will begin to ask preliminary questions of the suspect, while on videotape, prior to beginning the polygraph exam.  These preliminary questions are ostensibly to allow the polygrapher to establish a background so that the polygrapher can best frame his or her questions during the examination.  But, what the polygrapher will really do is stray into areas during this examination where he or she will start attempting to elicit incriminating reponses from the suspect.  Once the polygrapher senses that he or she may have elicited an incriminating response, they’ll push on, seeking to obtain further incriminating admissions and, ultimately, a confession.  Don’t forget, the admissions and a confession, can be used by the prosecution in court!  Often the polygrapher will not even end up administering the polygraph exam, but will terminate the interview after eliciting the incriminating statements, or confession, or both.

So, the state administered polygraph exam is, in reality, a sham.  It is nothing more than an opportunity for the state’s polygrapher to examine the suspect and obtain incriminating information.  You can bet it is not a good faith effort to allow the suspect to “clear his name”.

Be aware that the Georgia courts are biased against DUI defendants and there are procedures and case law in place that specifically result in the denial of a fair trial to a DUI defendant in the state of Georgia.  I can give you one very good, simple example.

At the conclusion of a DUI jury trial, the judge instructs the jury on what to do with the facts and the Georgia law as it governs the juror’s deliberation on guilt or innocence.  In doing this, the judge is, theoretically, not allowed to create an irrebutable presumption that makes it impossible for the defendant to disprove something the state must prove to establish the defendant’s guilt.

Nevertheless, the judge in the state of Georgia is entitled to tell the jury that the intoxilizer machine used by the state to measure the blood alcohol content of a person’s lung air is considered accurate if used correctly.  And, this is absolutely untrue!  Any number of experts can give a large number of reasons that the results of the intoxilizer are not reliable.

Sometimes in a DUI case the prosecution’s entire case is based on a readout of blood alcohol content from the intoxilizer.  The defendant’s entire defense in such a case may be his expert witness who has testified to numerous design and operational deficiencies of the intoxilizer machine that might have resulted in an inaccurate result.  So the state is saying to the jury, convict this person because the intoxilizer gave this result and the defendant is saying to the jury, don’t convict me because the intoxilizer is not a reliable machine.

But, the judge tells the jury, just before they retire for deliberation, that the intoxilizer results are considered to be accurate.  This has been challenged in the Georgia Court of Appeals and the appellate court upheld this practice, finding, by some sort of judicial magic, that this instruction did not create an irrebutable presumption.  Needless to say, the Georgia Court of Appeals has given a gift to the prosecutors in the state of Georgia, heavily weighting the outcome of DUI trials involving the intoxilizer in favor of the state of Georgia.

Few people know that in Georgia you can lose your driver’s license after a DUI arrest without ever being convicted of any crime.  In Georgia, if your blood alcohol content is .08 or above you can be required to request an administrative hearing after your arrest for DUI.  If you do not request that hearing your driver’s license can be administratively suspended by the Department of Driver Services for a year or more.  If you do request the hearing and if you lose on the merits at the administrative hearing that results, then your driver’s license will be suspended for a year or more.  This suspension of your driver’s license occurs as a result of an administrative proceeding that is separate from and that takes place in addition to the proceedings in the criminal court where you will be prosecuted for the crime of DUI.  So your Georgia driver’s license can be suspended without ever being found guilty of the DUI that you were arrested for.

The best bet is to contact a competent DUI attorney immediately after your arrest for DUI.  You only have ten days after your arrest within which to request the administrative hearing.  So don’t mess around if you’re arrested for DUI.