If you have been arrested in Cherokee County for a DUI, we are available to discuss your case anytime, including after hours, weekends, and holidays. If you are visiting from out of town, we can appear in Cherokee County State Court on your behalf, so you don’t have to. Call Chestney & Sullivan today! 404.816.8777
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! Mr. Chestney is Board Certified in DUI Defense by NCDD (National College for DUI Defense) and Mr. Sullivan is a former prosecutor. Call our experienced Cherokee County DUI lawyers today at 404.816.8777. We offer a free in-office consultation on how we can effectively defend your Cherokee County DUI charges.
Our experienced Cherokee DUI lawyers are prepared to fight to avoid a Driving Under the Influence conviction in your Cherokee DUI case whether you have a DUI in Ball Ground, Canton, Holly Springs, Woodstock, 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 Cherokee County State Court for prosecution. Sometimes that is the best option if the prosecutor in municipal court refuses to negotiate an acceptable resolution in your Cherokee DUI 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 Todd Hayes. 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, however, during the jury trial weeks, sometimes other state court judges may preside over your trial.
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” where a judge decides the case instead of a jury. A bench trial sometimes 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 in your Cherokee DUI case – especially if the prosecution refuses to negotiate an acceptable resolution.
How our skilled Cherokee DUI lawyers build a successful Cherokee County 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, an accident reconstructionist, private investigators, breath test/field sobriety experts, medical professionals, video illustrators, to name a few, to help build a solid defense in your case Cherokee County DUI 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 to Driving Under the Influence 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 your Cherokee DUI officer’s request for a chemical test in 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 Cherokee DUI 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.
Cherokee County Sheriff’s Deputies are using search warrants (for your blood) to use in the prosecution of your Driving Under the Influence case:
On July 1, 2006, a law took effect in Georgia that expands the available use of search warrants in Driving Under the Influence cases (OCGA 40-5-67.1(d.1)). This law was passed after the Georgia Supreme Court in State v. Collier, 279 Ga. 316 (2005), ruled that law enforcement officers could not use coercion techniques to obtain a blood sample by threatening to get a search warrant and use a catheter to obtain it. The statute at the time of the Collier case prohibited search warrants for bodily substances if a person refuses to submit to a chemical test pursuant to the Georgia Implied Consent Notice. The 2006 legislation was an attempt to expand the use of search warrants in Driving Under the Influence arrests. We believe the final version falls short of allowing search warrants for blood, breath, or urine samples when a suspect refuses to submit to a sample after being read the Georgia Implied Consent Notice. The language of “no test shall be given” if a driver refuses the state chemical test is still in the current version of the statute. Our firm is also making a constitutional challenge to how the 2006 statute was passed by the Georgia Assembly (Georgia legislature). If the Cherokee County Sheriff’s Deputy obtained a chemical sample from you after getting a search warrant, call us today and we can explain in more detail how we are attacking the admissibility of chemical tests obtained by search warrants in Driving Under the Influence cases. Although you may have ultimately given a chemical sample to the police pursuant to a search warrant, your officer may still attempt to suspend your Georgia driver’s license or privilege to drive here in this state administratively if you refused initially to submit to a chemical test when the implied consent notice was read. See below on steps that may need to be taken to protect your driving privileges.
Administrative License Suspension
IMPORTANT INFORMATION CONCERNING YOUR DRIVER’S LICENSE WHILE YOUR CHEROKEE DUI CRIMINAL CHARGES ARE PENDING IN COURT
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 your Cherokee DUI officer served you with a notice of a license suspension action. If you were arrested by a Cherokee County DUI Task Force Officer Woodstock, Canton, Holly Springs, Ball Ground police officers, or by a Georgia State Patrol Trooper, 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 Cherokee DUI officer to serve you notice of a license suspension action. The form that is used is called a DDS-1205 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).
- We strongly suggest that you set up an online account with the Georgia Department of Driver Services to monitor the status of your driver’s license: https://dds.georgia.gov/online-services
Regardless whether you have actually received a DDS-1205 form from your officer in your Cherokee DUI case, it is important for you to understand that you only have 30 days to request a hearing to preserve your driving privileges or waive your hearing through the Georgia Department of Driver Services by opting for an ignition interlock device permit.
Three tracks you can take [beware of making a choice without the advice of an experienced Cherokee DUI lawyer]:
- Do nothing within 30 days of the date of your Cherokee DUI arrest: In most cases we do not recommend this path as if you do nothing and your Cherokee DUI officer initiated an administrative license suspension action, then on the 46th day after the date of your arrest, your driving privileges will automatically be suspended by Georgia Department of Driver Services for one year with no permit to drive. Even if you did not receive the DDS-1205 form, we still recommend that you take some sort of action instead of doing nothing. However, there are limited circumstances where we recommend our clients do nothing regarding a license suspension action, but those circumstances are rare.
- Request an administrative hearing: This is the traditional track that has been the law for many years now, except now there are thirty days instead of ten business days to take action. This track is where a request for an administrative hearing is submitted to the Georgia Department of Driver Services challenging the Cherokee County DUI 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 Cherokee DUI officer’s request for a state administered chemical test of your breath, blood, urine, or other bodily substances.
- Properly waive your right to an administrative hearing and have an ignition interlock installed: This track came into effect July 1, 2017. This allows first DUI arrest in five years drivers to be able to drive in the state of Georgia and fight their Cherokee County 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 you will need to install an ignition interlock device on your vehicle for a minimum of 120 days if you tested over the “per se” legal limit, or one solid year of having the ignition interlock device installed in your vehicle (and driving under the confines of an ignition interlock permit) if you refused the Cherokee DUI officer’s request for a state administered chemical test. If you choose this track, we highly advise that you install the ignition interlock first, then go to DDS within 30 days from the date of arrest to obtain the permit. There are obvious concerns and pitfalls in choosing this track. For many people, the stigma of having the ignition interlock device installed in their vehicle is just not worth it. The ignition interlock device is also expensive: it requires an installation fee as well as a monthly monitoring fee. 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. In addition to waiving your right to an administrative hearing and having an ignition interlock device installed on your vehicle, you must also meet the following conditions:
- An application for the permit must be made with DDS within 30 days of the person being served notice of the ALS by the Cherokee DUI arresting officer through the DDS-1205 form (usually 30 days from the date of arrest), or—in the event of a DDS-1205S form—within 30 days of receiving such notice of the ALS from DDS (from a blood test result that was not procured by a search warrant);
- The ALS cannot stem from a motor vehicle accident involving fatalities or serious injuries;
- The person must be licensed in Georgia and not have any other suspensions, cancellations, or revocations against his or her Georgia driver’s license;
- If the person holds a Georgia commercial driver’s license (CDL), he or she must downgrade to a non-commercial Georgia driver’s license in order to obtain and maintain the permit;
- The person cannot have any prior convictions for DUI in the 5-year period preceding application for the permit. If there is a DUI arrest with a DUI conviction within 5 years of the current Cherokee DUI arrest, the person can still opt for track 2 – requesting an administrative hearing, or track 1 – do nothing at all;
- The person must surrender his or her Georgia driver’s license, either to the Cherokee DUI arresting officer at time of arrest or to DDS prior to issuance of the permit; and,
- The person must pay a $25.00 permit fee to the Georgia Department of Driver Services.
The period a person must successfully maintain the ignition interlock device on their vehicle will be based on whether he or she consents to or refuses the state-administered chemical test requested by the Cherokee County DUI arresting officer.
A person who consents to the state-administered chemical test and opts for the new permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 4 months. If he or she is subsequently acquitted of the underlying Cherokee DUI charge, or the underlying DUI charge is dismissed or reduced, the ignition interlock device may be removed at no cost and the driver’s license may be replaced. A person who refuses the state-administered chemical test and opts for the new permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 12 months, regardless of the outcome of the underlying Cherokee County DUI charge.
Successful maintenance of the ignition interlock device must be evidenced by the permit holder to DDS through the production of satisfactory monthly monitoring reports prior to DDS removing the ignition interlock restriction from the permit. A permit may be renewed for a fee of $5.00 if additional time is needed for the permit holder to comply with the terms of the ignition interlock device, but it may only be renewed one time once the permit holder becomes eligible to reinstate his or her driver’s license. Following the designated term of successful compliance, the ignition interlock device restriction may be removed from the limited driving permit in person at a DDS customer service center for a fee of $100.00 (or $90.00 if removal of the restriction is requested by mail or other approved alternate means). The removal fee is in addition to any reinstatement fee that may be required.
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 license suspension action.
So I made a proper request for a license suspension in my Cherokee DUI case, what happens next?
The license suspension action is a civil action separate from your Cherokee DUI 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 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 in your Cherokee DUI case 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 your Cherokee County DUI 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 Georgia DUI statute); or
- Was the driver 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 Cherokee DUI officer informed the person of the person’s Implied Consent rights and the consequences of submitting or refusing to submit to such test; and
- Did 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 Cherokee County DUI 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 who made the Cherokee County DUI arrest, an attorney paid by the State of Georgia assists the officer on direct examination. The Cherokee DUI 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. The decision will also be posted online. 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 Cherokee DUI 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 Cherokee DUI 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 in my Cherokee DUI case?
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.