our experienced marietta dui lawyers are available to speak with you about your MARIETTA DUI case anytime, including after hours and weekends. Call Chestney & Sullivan today! 404.816.8777
If you have been arrested for a DUI in Marietta, 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. Our Marietta DUI lawyers offer a free in-office consultation on how we can effectively defend your Marietta DUI charges. Call us today at 404.816.8777.
If you are charged with a DUI in Marietta, contact our experienced Marietta DUI lawyers today to discuss your case. Vigorously defending DUI cases is all we do.
Marietta Municipal Court is located at 240 Lemon Street, Marietta, Georgia 30060. The Marietta Police Department is located in the same building. Our Marietta DUI lawyers appear in Marietta Municipal Court on a regular basis. It is critical for Marietta DUI lawyers to be familiar with this jurisdiction. Judge Roger J. Rozen is the Chief Judge in Marietta Municipal Court, although other associate judges may sit on the bench from time to time such as Lawrence Burke, Robert Schnatmeier, Smyrna Chief Judge Phyllis Gingrey Collins, Melinda Taylor, Nathan Wade or Judge Steve Yaklin . The solicitor (prosecutor) of your Marietta DUI case is Robert Donovan, other solicitors may fill in for Mr. Donovan such as Thomas Griner, Latonia Hines, or Susan Miller.
Marietta Municipal Court is a court of “limited jurisdiction,” meaning that they do not have jury trials there. If you want a judge to decide your Marietta DUI case without a jury, that is called a “bench trial.” The prosecution still has the burden to prove each element of an offense beyond a reasonable doubt. The judge then must decide if the prosecution has met its burden. Sometimes 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 Marietta DUI case, especially if the prosecutor refuses to negotiate your case to a non-dui disposition. Because the Marietta Municipal Court does not conduct jury trials, your case would need to be sent to Cobb County State Court for trial. Cobb State Court currently has twelve state court judges. Your case will be assigned to one of the twelve judges in State Court once your Marietta DUI case is filed with the Cobb State Court Clerk’s Office.
The current elected Cobb County Solicitor is Barry E. Morgan. There are generally two prosecutors assigned to each of the 12 state court judges. Because each State Court judge handles their caseloads differently, it is important that Marietta DUI lawyers know how each particular courtroom operates. Our Marietta DUI lawyers try DUI cases in Cobb County State Court on a regular basis. Because our Marietta DUI lawyers frequently contest DUI cases in Cobb County State court, we are familiar with the judges and prosecutors who will be handling your Marietta DUI case.
The Marietta Police DUI Task Force or H.E.A.T. Unit operates in conjunction with the Governor’s Office of Highway Safety. The Marietta Police DUI Task Force receives grants to supplement their budget through Federal and State funding, the Governor’s Office of Highway Safety including the H.E.A.T. program (Highway Enforcement of Aggressive Traffic), and other sources. The primary goal of the Marietta Police DUI Task Force/H.E.A.T. Unit is to combat impaired drivers/drunk drivers. The DUI Task Force frequently utilize programs through the Governor’s Office of Highway Safety such as Operation Zero Tolerance, Click it or Ticket, 100 Days of Summer Heat, Thunder Task Force, and others.
The Marietta DUI Task Force, like all Marietta police officers, have received at a minimum 16 hours of DUI training in the police academy. Most Marietta DUI Task Force officers trained have received an additional 24 hour standardized field sobriety course endorsed by the National Highway Traffic Safety Administration (NHTSA). Some Marietta DUI Task Force officers have received additional DUI training such as ARIDE (Advanced Roadside Impaired Driving Enforcement), or DRE (Drug Recognition Expert). All of the Marietta DUI Task Force officers are certified by the Georgia Bureau of Investigation to operate Georgia’s newest breath testing instrument, the Intoxilyzer 9000.
Our Marietta DUI attorneys know how to challenge a Marietta DUI case. We are trained in Standardized Field Sobriety evaluations and have received training on the operation and limitations of the Intoxilyzer 5000 and 9000. We currently own three Intoxilyzer 5000 breath testing devices. Mr. Sullivan was certified in Standardized Field Sobriety evaluations by members of the Conyers Police Department and Rockdale County Sheriff’s Office. One of the benefits of investigating a Marietta DUI case is that most of their patrol vehicles are equipped with video and audio. Their video equipment has some features similar to a DVR or TVO that many people have at home for their TV’s. Their video equipment is continuously recording, but will not preserve anything until the officer either manually activates recording, or the Marietta DUI officer activates his emergency equipment (lights). Then the video will preserve somewhere between 30 and 60 seconds of time before activation and typically Marietta officers will run their video until their investigation is complete. Some will run their videos until they reach the jail. Videos can be obtained through the court process.
Current members of the Marietta Police DUI Task Force/H.E.A.T. Unit include: Officer David Auld, Officer Michael Gardner, Officer Stephen Miller, Justin Rutland, and Nick Serkedaks.
Marietta Officer David Auld received a Mothers Against Drunk Driving Silver Pin award in 2014 for the number of Marietta DUI arrests he made the previous year. Officer Nick Serkedaks also received a MADD Bronze Pin award for the number of Marietta DUI arrests he made the previous year. Marietta Officers Justin Rutland, Michael Gardner, and Stephen Miller received distinguished MADD Red DRE Pins.
How our skilled Marietta DUI lawyers build a successful defense in your DUI case:
To build a strong DUI defense in Georgia, our Marietta DUI lawyers start by meeting with you about your Marietta DUI case and learning as much as possible from you about what happened. Using this core information, our own in-house investigator can look for more evidence to help our defense by using specialized resources as needed to determine if all testing and other details of your arrest were accurate and legal. Our investigator gathers information, videos, 911 calls, possible surveillance videos, police reports, documents road/scene conditions and more. There are also times when we 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 defense in your Marietta DUI case. Our Marietta DUI lawyers then analyze your case starting with whether the initial stop or reason why the police were involved was legal. We also look for suppression issues with the admissibility of field sobriety tests or state chemical tests (breath, blood, or urine tests). Our Marietta DUI attorneys meeting as a group then develop strategies in how to best conduct the license suspension hearings, preliminary/committal hearings, motion hearings, and trial. Our team approach is an effective way to ensure we are prepared to defend your Marietta DUI. All of our lawyers are involved in your case. Our DUI defense lawyers have regular meetings on all of our cases, so the lead Marietta DUI lawyer can get as much input as possible in developing a winning strategy in your Marietta DUI case.
Can I just enter a guilty plea myself and avoid hiring an experienced Marietta 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 Marietta Municipal Court or in Cobb 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 Marietta DUI lawyer is better able to handle than someone representing him or herself. Here are some reasons why you may consider hiring us rather than representing yourself:
- You can put your driving privileges in jeopardy if you simply go to court and enter a guilty plea by yourself. If you have been arrested by a Marietta DUI officer (or any Georgia police officer), you should have been served notice of a 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 and unless the suspension action is conducted properly.
- If your license is suspended for refusing the State’s chemical test from losing an administrative hearing or failing to address a license suspension action within 30 days from the date of your Marietta DUI arrest, your Georgia driver’s license or driving privileges will be suspended for a year with NO PERMIT. Properly coordinating and handling the Marietta DUI criminal charges and the license suspension action can improve your chances of being able to drive.
- Other charges in addition to your Marietta 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 Marietta DUI attorney who is familiar with Mariettta Municipal Court as well as Cobb County State Court or Superior Court can assess a plea offer to determine if it is worth taking or moving your case to state court, or you may decide to take your Marietta DUI case to trial in municipal court or state court.
- 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
IMPORTANT INFORMATION CONCERNING YOUR DRIVER’S LICENSE WHILE YOUR MARIETTA DUI CRIMINAL CHARGES ARE PENDING IN COURT
Besides your Marietta DUI criminal charges pending in Marietta Municipal Court, 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 Marietta, chances are your Marietta DUI officer served you with a notice of a license suspension action. If you have been arrested by Marietta DUI Officers David Auld, Nick Serkedaks, Justin Rutland, Michael Gardner, or Stephen Miller, you can be assured that they initiated a license suspension action against you. Whether you refused the Marietta DUI officer’s chemical test, or the breath test results indicated an alcohol concentration above the legal limit, Georgia law requires your Marietta 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 Marietta DUI 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 Marietta DUI officer, 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 Marietta DUI lawyer]:
- Do nothing within 30 days of the date of your Marietta DUI arrest: In most cases we do not recommend this path as if you do nothing and your Marietta DUI officer initiated an administrative license suspension action, then on the 46th day after the date of your Marietta DUI 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 as a result of your Marietta DUI arrest, 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 Marietta 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 your Marietta DUI officer’s request for a state administered chemical test of your breath, blood, urine, or other bodily substances. There is a $150 filing fee made payable to the Dept. of Driver Services in order for DDS to process the hearing request.
- Properly waive your right to an administrative hearing in your Marietta DUI case 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 Marietta 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 Marietta 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 administrative license suspension (ALS) by the Marietta 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 Marietta 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 Marietta DUI 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 Marietta 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 Marietta 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 Marietta 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.
Like the title of the ignition interlock device limited permit suggests, there are limitations on where you can drive while on the IID permit:
- Going to his or her place of employment or performing the normal duties of his or her occupation;
- Receiving scheduled medical case or obtaining prescription drugs;
- Attending a college or school at which he or she is regularly enrolled as a student;
- Attending regularly scheduled sessions or meetings of treatment support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner;
- Attending under court order any driver education or improvement school or alcohol or drug program or course approved by the court which entered the judgment of conviction resulting in suspension of his driver’s license or by the commissioner;
- Attending court, reporting to a community supervision, juvenile probation, or Article 6 of Chapter 8 of Title 42 probation office, reporting to a community supervision officer, county or Department of Juvenile Justice probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, or performing community service;
- Transporting an immediate family member who does not hold a valid driver’s license for work, to obtain medical care or prescriptions, or to school;
- Attending any program, event, treatment, or activity ordered by a judge presiding in an accountability court, as such term is defined in Code Section 15-1-18; or
- Going for monthly monitoring visits with the permit holder’s ignition interlock device service provider.
Contact us today to discuss your Marietta DUI arrest with our dedicated Marietta DUI lawyers at 404.816.8777. Our DUI defense lawyers are experienced in fighting DUI charges in Marietta and handling license suspension hearings. We can review your case and prepare a strategy for defending your Marietta DUI criminal charges and your license suspension action.
So I made a proper request for a license suspension hearing in my Marietta DUI case, what happens next?
The license suspension action is a civil action separate from your Marietta DUI criminal charges 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 Marietta DUI 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 a judge from that agency. Typically a hearing date is set roughly 60 days from the date of your Marietta DUI 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 hearing is very limited:
At a hearing, the OSAH judge has a very limited role in deciding your case. Judge Patrick Woodard usually sits as the Office of Administrative Hearings Judge that will hear and decide your hearing. Judge Woodard is bound by law to only look at certain statutory factors to determine whether or not those statutory factors were met based on the evidence presented at the hearing. 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 Marietta 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 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 Marietta 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
- 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 judge will enforce the Georgia Rules of Evidence, similar to other court proceedings. Because the burden is on your Marietta DUI officer to establish that the statutory factors were met, the Marietta DUI 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 Marietta 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. 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 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 your Marietta DUI criminal charges are being dismissed, but an OSAH hearing can be a great tool to gain an advantage in your Marietta 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 license suspension. Again, because the burden on the Marietta DUI officer is so low to meet in these license suspension hearings, there is a good possibility that your license may be suspended, but we still may be able to gain an advantage in the Marietta DUI criminal case based on testimony from the hearing. If the judge committed an error in ruling, the decision can be appealed. Also, if your Marietta DUI charge is reduced, dismissed, or you are found not guilty, the suspension is lifted and deleted off your driver’s history as a matter of law.
Can I handle the license suspension hearing myself in my Marietta DUI case?
Because license suspension actions 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 Marietta DUI charges. There are simply too many variables that can impact your driving privileges to be discussed here without knowing the specific facts of your Marietta DUI case and your prior criminal history. Remember, you only have 30 days to request a license suspension hearing through the Georgia Department of Driver Services.
Contact our experienced Marietta DUI lawyers today:
If you are facing a Marietta DUI charge, license suspension action, or have been ticketed for a serious traffic offense, contact our experienced Marietta 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. Call us today at 404.816.8777.