Call us today! Our experienced Cherokee County DUI lawyers are available 24/7 to discuss your case at 404.816.8777. We offer a free consultation.
If you have been arrested for a DUI in Cherokee County, experienced DUI trial attorneys James “Skip” Sullivan and Bob Chestney are available to discuss your case anytime – including after-hours and weekends! Call us at 404.816.8777 (office), Mr. Sullivan’s mobile phone: 404.291.2151 (call or text), or email at Skip@dui-lawyer.com; Bob@dui-lawyer.com
Our experienced Cherokee DUI lawyers are prepared to fight to avoid a DUI conviction in your Cherokee DUI case whether you have a DUI in Canton, Woodstock, Holly Springs, or anywhere else in Cherokee County.
When your Cherokee DUI case begins in municipal court, if you demand a jury trial, the municipal court loses jurisdiction over your case. Your DUI case is then transferred to the Cherokee County court system for prosecution. Sometimes that is the best option if the prosecutor in municipal court refuses to negotiate an acceptable resolution in your case.
If you were arrested by the Cherokee County Sheriff’s Office, then your DUI case will be handled in Cherokee County State Court if there are no felony charges. Once your case is in Cherokee County State Court, the Cherokee County Solicitor’s Office is responsible for the prosecution of your Cherokee DUI case. The elected Solicitor General of Cherokee County is Jessica Moss. There are three elected Cherokee County State Court Judges that preside over misdemeanor DUI cases: Chief Judge W. Alan Jordan, Judge A. Dee Morris, and Judge Michelle L.H. Homier. Your case will be randomly assigned to a judge once your case is filed with the Cherokee County Court Clerk’s Office. The assigned judge will typically preside over your case until a final resolution is reached in most cases. Occasionally in state court during the jury trial weeks, multiple judges may preside over criminal jury trials.
Even if your DUI case may have been sent to Cherokee County State Court to preserve your right to a jury trial, or your case began in Cherokee County State Court, sometimes the facts of a particular Cherokee DUI may be best suited for a “bench trial” (a trial where the judge decides the case instead of a jury). A bench trial is a sound strategy, sometimes it is not. There are many times when a jury trial is the best possible option to avoid a DUI conviction on your Cherokee DUI case – especially if the prosecution refuses to negotiate an acceptable resolution in your case.
How our skilled Cherokee DUI lawyers build a successful DUI defense:
To build a strong DUI defense in Georgia, our Cherokee DUI lawyers start by learning everything possible about your case from you. Based on this information, our Cherokee DUI attorneys and investigator can search for more favorable evidence by using specialized resources as needed to determine if all testing and other details of your arrest were accurate and legal. This forms the basis for a strong drunken driving defense in Georgia. We have our own in-house investigator that gathers information, videos, 911 calls, possible surveillance videos, police reports, documents road/scene conditions and more. There are times when we even use the services of toxicologists, accident reconstructionists, private investigators, breath test/field sobriety experts, medical professionals, video illustrators, to name a few, to help build a solid DUI defense in your case. Our Cherokee DUI lawyers analyze a case from the initial stop or reason why the police were involved, looks for suppression issues with the admissibility of field sobriety tests or state chemical tests (breath, blood, or urine tests), and develop strategies in how to best conduct administrative license suspension hearings, preliminary/committal motion hearings and trial. Our team approach is an effective way to ensure we are thorough in defending your Cherokee DUI charges.
Can I just enter a guilty plea myself and avoid hiring an experienced Cherokee DUI defense lawyer?
There is a saying that “a person who represents himself has a fool for a client.” DUI cases are one of the most serious cases that are prosecuted in Cherokee County municipal courts or in Cherokee County State Court. Even if you think you are guilty and may not want to fight your case all the way, there are matters that a skilled Cherokee DUI defense lawyer is better able to handle than someone representing him or herself. Here are some reasons why you may consider hiring our Cherokee DUI attorneys rather than representing yourself:
- You can put your driving privileges in jeopardy if you simply go to court and enter a guilty plea to your Cherokee DUI. If you have been arrested by a Cherokee County DUI Task Force officer, or any Georgia police officer, you should have been served notice of an administrative license suspension action. If you enter a guilty plea without properly addressing the license suspension action, you will not be able to get a limited permit (if you are eligible to get one at all) until the suspension action is conducted properly.
- If your license is suspended for refusing the State’s chemical test from losing a license suspension hearing or failing to address a license suspension action within 30 days from the date of your arrest, your Georgia driver’s license or driving privileges will be suspended for a year with NO PERMIT. Properly coordinating and handling the criminal case along with the license suspension action can improve your chances of being able to drive.
- Other charges in addition to your Cherokee DUI charge may be more serious and carry more punishment than the DUI charge itself.
- Sometime the prosecutor gives a bad plea offer. Even if you decide not to contest your case, an experienced Cherokee DUI defense attorney who is familiar with Cherokee County State Court or Superior Court can assess a plea offer to determine if it is worth taking or rejecting and decide to take your case to trial.
- If you decide to represent yourself at trial, the Georgia Rules of Evidence still applies to you. Lawyers go to law school for years to learn these rules and you will be at the mercy of a skilled prosecutor and judge if you are not careful.
Administrative License Suspension
Besides your criminal case pending in Cherokee County State or Superior Court, or in any of the municipal courts in Cherokee County, you are likely facing an administrative license suspension. There is only a limited time to request this separate hearing to preserve your driving privileges. If you have been charged with a DUI in Cherokee County, chances are the officer served you with a notice of a license suspension action. If you were arrested by a Cherokee County DUI Task Force Officer or Georgia State Patrol, you can be sure that your officer served you with a notice of a license suspension action. Whether you refused the State’s chemical test, or the breath test results indicated an alcohol concentration above the legal limit, Georgia law requires your officer to serve you notice of a license suspension action. The form that is used is called a DS-1205 form (click on link to show the form). This form is either yellow or white and the officer may have had you sign it. Sometimes this paperwork gets lost (you may have received it, but may have been misplaced, or it may have been lost at the jail).
You only have 30 days to request a hearing to preserve your driving privileges:
You only have 30 days to request a hearing to preserve your driving privileges, or waive your right for a hearing through the Georgia Department of Driver Services by opting for an ignition interlock permit.
Regardless as to whether you have actually received a DS-1205 form, it is VERY IMPORTANT that you take action within 30 days from the date of your arrest to preserve your driving privileges.
There are now two tracks you can take regarding your driver’s license if you have been served a notice of an administrative license suspension (DS-1205 form – commonly referred by law enforcement as as temporary driving permit). It is essential that you understand your options as your decision can substantially impact your ability to drive.
One track is the traditional track that has been the law for many years now. A request for an administrative hearing challenging the officer’s decision to administratively suspend your driver’s license for testing above Georgia’s “per se” legal limit for alcohol concentration, or for refusing the officer’s request for a state administered chemical test of your breath, blood, urine, or other bodily substances (we have yet to see a DUI case involving testing of “other bodily substances”…).
The other track is new as the law took effect July 1, 2017. This allows first DUI arrest in five years drivers charged with a DUI to be able to drive in the state of Georgia and fight their DUI criminal case without losing the privilege to drive. It comes with a cost of course. It involves you waiving your right to an administrative hearing through the Georgia Department of Driver Services and installing an ignition interlock device on your vehicle for a minimum of 120 days if you tested over the “per se” legal limit, and one solid year of having the ignition interlock device installed in your vehicle (and driving under the confines of an an ignition interlock permit) if you refused the officer’s request for a state administered chemical test, and obtaining an ignition interlock permit. There are obvious concerns and pitfalls in choosing this track. First you can amaze your friends with your fancy new device that makes your car start by blowing into the device. For most folks the stigma of having the interlock installed in your vehicle is not worth it. The ignition interlock device is also expensive: it requires an installation fee as well as a monthly monitoring fee. Oh, and if you remove it while under your ignition interlock permit, tamper with it, or it tests positive, your permit to drive may be revoked for six months – meaning no driving at all. So no party tricks with your friends “testing” your ignition interlock device.
Either way, if you do not request a hearing within 30 days from the date of your arrest and pay Georgia Department of Driver Services a $150 fee, or properly waive your right for an administrative hearing through the Georgia Department of Driver Services in exchange for an ignition interlock device permit, your Georgia driver’s license or privilege to drive in Georgia (for those with an out of state driver’s license) will be suspended automatically on the 45th day after the date of your arrest – if your officer submitted the administrative license suspension DS-1205 paperwork to the Georgia Department of Driver Services. In most cases, you do not want your license to be suspended without a hearing, or without waiving your hearing by agreeing to the ignition interlock permit.
There are times when it may be a good strategy not to submit a request for a hearing, or to purposefully lose an administrative license suspension action. That sounds counter-intuitive, but in a limited number of circumstances, it is a wise strategy to gain an advantage in your Cherokee County DUI criminal case. We do not make a decision to use this type of strategy until we thoroughly review your case to see if the facts of your case fit within one of those very limited circumstances. We then review with you the pro’s and con’s of using such a strategy.
Contact us today to discuss your Cherokee DUI case with our experienced Cherokee DUI defense lawyers at 404.816.8777. Our dedicated Cherokee County DUI lawyers are experienced in fighting DUI charges and handling license suspension actions. We can review your case and prepare a strategy for your criminal case and your a license suspension action.
Once a proper request for a license suspension hearing is made, what happens next?
The license suspension action is a civil action separate from your criminal case and only deals with your license or privilege to drive in this state. As a matter of fact, the license suspension action is litigated by a completely separate court from your criminal case. Once the Georgia Department of Driver Services processes your request for a hearing, your case is then sent to the Georgia Office of State Administrative Hearings (OSAH) where a hearing will be scheduled in front of an OSAH judge. Typically a hearing date with OSAH is set roughly 30 to 60 days from the date of your arrest. Once a hearing is requested, the Department of Driver Services will extend your driving privileges until there is an order entered from an OSAH judge.
The scope of the license suspension hearing is very limited:
At a license suspension hearing, the judge has a very limited role in deciding your case. The judge is bound by law to only look at certain statutory factors to determine whether or not those statutory factors were met. That is it. The judge does not look at your criminal or driver’s history. The judge is not concerned about your job, transportation issues with your children’s school or day care, or any other hardship you may if your license is suspended. The judge’s only role in a license suspension hearing is to determine if the following factors were met:
- Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391 (the DUI statute); or
- Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
- Whether at the time of the request for the test or tests the officer informed the person of the person’s Implied Consent rights and the consequences of submitting or refusing to submit to such test; and
- Whether the person refused the test; or whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and
- Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of 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, including whether the machine at the time of the test was operated with all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.
How is the OSAH hearing conducted?
The OSAH judge will enforce the Georgia Rules of Evidence, similar to other court proceedings. Because the burden is on the officer to establish that the statutory factors were met, the officer testifies first. Some jurisdictions allow the officer to have help from the prosecutor’s office, or if the officer is a Georgia State Trooper, an attorney paid by the State of Georgia assists the officer on direct examination. The officer is then subject to cross-examination. There are times when we may decide to place our clients or other witnesses on the stand for direct examination. Our witnesses would then be subject to cross examination from the other side. Once the testimony and presentation of the evidence is finished, each side can make a closing argument. The judge will then make a decision typically within 5 business days, and will transmit that decision to the parties and the Georgia Department of Driver Services. If there is an error in how the judge ruled, there is an appellate process available to review the court’s decision.
What happens if I win the hearing?
If the OSAH judge finds that one or more of the applicable statutory factors above are not met, then the judge will issue an order reversing the suspension action, transmit it to the Georgia Department of Driver Services, and then Georgia DDS will delete the license suspension action off your driver’s history (no administrative license suspension). This does not mean that the criminal case is being dismissed, but a license suspension hearing can be a great tool to gain an advantage in your Cherokee DUI criminal case.
What happens if I lose the hearing?
If the judge finds that all of the applicable statutory factors were met by a preponderance of the evidence (a lower standard of proof than beyond a reasonable doubt), then the judge will issue an order affirming the license suspension action and will transmit the order to the Georgia Department of Driver Services, who will then impose the suspension. Again, because the burden on the officer is so low to meet in these hearings, there is a good possibility that your license may be suspended, but we still may be able to gain an advantage in your Cherokee DUI criminal case based on testimony from the hearing. If the judge committed an error in ruling, the decision can be appealed.
Can I handle the license suspension hearing myself?
Because a license suspension action from a Georgia DUI arrest is a very complex subject that even many lawyers don’t understand, we strongly encourage you to contact us right away to discuss your Cherokee DUI case. There are simply too many variables that can impact your driving privileges to be discussed here without knowing the specific facts of your case and your prior criminal history. Remember, you only have 30 days to request a hearing through the Georgia Department of Driver Services.
Call our experienced Cherokee County DUI lawyers today:
If you are facing a Cherokee DUI charge, a license suspension action, or have been ticketed for a serious traffic offense, contact our experienced Cherokee County DUI lawyers today. We will meet with you free of charge to discuss your options, and provide advice based on our experience in the court where your case will be heard. Contact us at 404.816.8777.