Georgia DUI & Criminal Defense

08/06/2025

If you've been charged with a crime, be it a misdemeanor or felony, you may be able to get your charges dismissed and your criminal history expunged. But, diversion is the prosecutor's program. And they may want an arm and a leg, perhaps even a liver, before admitting you into their diversion program. Don't even get me started on the nefarious Stinson-plea. Know your rights. And if you don't, get a lawyer who does.

Criminally charged? Diversion is a good deal with caveats. Charges are dismissed and records expunged. But don't give up your trial rights.

04/01/2025

Another case from the Don't Do Two Dumb Things Simultaneously Department. First, don't drive around with illegal contraband. Next, if you do, then don't also drive onto prison property without authorization.

To be convicted of possessing drugs with no prescription, and trafficking it, the district attorney doesn't need a positive chemical test.

03/07/2025

In this video, I discuss my initial thoughts about how H.R. 875 out of our 119th U.S. Congress could affect non-citizens (aliens) in the United States if they're convicted of, or have been convicted of, a DUI. Additionally, I discuss how DUIs may affect the admissibility into this country of non-citizens who wish to enter.

A new bill (H.R. 875) recently made it out the U.S. House of Representatives Judiciary Committee. The bill states that it may be cited as the "Protect Our Co...

03/04/2025

HR 875 - The New Nexus of Criminal and Immigration Law

The text of House of Representatives Bill 875 for the 119th Congress has been released. Now called the 'Protect Our Communities from DUIs Act,' it would make aliens who drive under the influence of alcohol or drugs inadmissible and/or deportable. There is one sentence in the bill that will be particularly challenging for defense lawyers representing alien DUI clients even where their DUIs have been reduced to lesser charges like, what we call in Georgia, reckless driving.

[Note that I am, for the purpose of this post, taking an agnostic position as regards the political advisability of current immigration policy, and am looking at this solely from the position of a DUI defense lawyer.]

Inadmissible v. Deportable

8 U.S.C. § 1182 (a)(2) of the Immigration and Nationality Act (INA) will, under the proposed law as it stands, be amended with a new prohibiting section (J) so that not only are aliens who are convicted of DUIs inadmissible (i.e., not eligible to enter into the United States), but also inadmissible will be anyone “who admits having committed, or who admits committing acts which constitute the essential elements of an offense for driving while intoxicated or impaired, as those terms are defined under the law of the jurisdiction where the conviction, offense, or acts constituting the essential elements of the offense occurred.” The criteria for deportable is to be found guilty, period. I doubt HR 875 will cast a wider net as it proceeds through Congress. An 'alien' is a person who isn’t a U.S. citizen or national. See 8 U.S.C. § 1101(a)(3) (INA). Subject to some exceptions, per 8 U.S.C. § 1182 (a), aliens who are inadmissible are “ineligible to receive visas and ineligible to be admitted to the United States[.]”

Hypothetical Considerations

Thus, during a hearing where the facts of a plea are placed on the record, even if the charge pled to isn’t a DUI, if facts are stated and/or agreed to which would otherwise support a DUI conviction, would the plea transcript not then be usable to preclude reentry into the U.S. at a later time? For instance, if a defendant alien (client) who is not otherwise inadmissible or deportable, admits to facts that are consistent with a DUI, and then later leaves the country, could the transcript from the plea be used against them when they try to re-enter the U.S.? What if the client is already deportable or later becomes deportable? Will the plea transcript be used by the government to pile-on the client in an already bad situation? Could renewals of visas be affected?

What's an Alien (and their lawyer) To Do?

I for one will not be agreeing to any facts on the record that conceivably supports a DUI conviction - even if the charge pled to is an expired tag charge or, what we call in Georgia, a Basic Rules violation - i.e., charges that don’t even report to our Department of Driver Services. Stipulating to facts that support a plea, but which are not explicitly put on the record, probably has to be done. The judge would not be doing their job without such minimal acknowledgement by the defendant. And, without any actual facts being stated, it seems that should be okay for the client.

Unknown Unknowns

While I am not an immigration lawyer, and although the proposed section of HR 875 on deportability is not as inclusive as the preceding part of the bill on inadmissibility, given that student and work visas are at stake, this may in time prove to be a distinction without a difference. And what about past clients and the retroactive application of the law to deport? While ex post facto laws are prohibited, HR 875 applies to immigration status; it doesn't create a new crime per se. And while one could argue HR 875 is a criminal ex post facto law as applied, without a clause grandfathering in priors, I don't think that will work. Much depends on how aggressively the government goes after alien defendants. Also, given that predicting how the law will be interpreted by courts is akin to reading chicken entrails to fill out one's March Madness bracket, all non-citizens and non-nationals in the U.S. now facing alcohol related moving vehicle offenses (and their lawyers) should be very careful vis-à-vis case resolution.

https://www.congress.gov/119/bills/hr875/BILLS-119hr875ih.pdf

02/27/2025

Yesterday, 2/26/25, the 119th session of the U.S. Congress had three more House members become co-sponsors of H.R. 875. As introduced on 1/31/25 by Rep. Barry Moore (R) of Alabama’s District 1, the present title of the proposed law is “To amend the Immigration and Nationality Act to provide that aliens who’ve been convicted of or who have committed an offense for driving while intoxicated or impaired are inadmissible and deportable.” Now at 23 co-sponsors, all Republicans thus far, the newest Representatives to back the bill are Andy Biggs of Arizona’s 5th District, Thomas P. Tiffany of Wisconsin’s 7th District, and Ben Cline of Virginia’s 6th District.

The bill was being worked on in the House Judiciary Committee, and also yesterday, the committee held a session to consider and mark-up the proposed legislation, and then the bill was ordered to be reported (amended) by voice vote. So, H.R. 875 may be presented to the full House of Representatives soon.

Per U.S. immigration law, an “alien” is a person who isn’t a U.S. citizen or national. See 8 U.S.C. § 1101(a)(3) of the Immigration and Nationality Act. Thus, if the text follows the title, even lawful permanent residents, i.e., green card holders who are legally allowed to reside in the U.S. permanently, would be at risk for deportation if convicted for driving while under the influence. I’m no Nostradamus, but I’ll go out on a limb and predict operating any motorized mode of transportation while under the influence will fall under the bill’s prohibitions. Whether the proponents’ intent is to include lesser offenses where alcohol was involved (e.g. reckless driving or following too close to another vehicle and causing a minor fender bender) will soon be revealed.

02/14/2025

DUI Law Update

Hawai’i: A proposed law to lower the legal blood alcohol content (BAC) limit from 0.08 to 0.05 is working its way through the state legislature of the Aloha State, passing the House Committee on Transportation. According to Mothers Against Drunk Driving, more than 108 countries have a lower BAC limit than everywhere in the United States save Utah. Except for commercial drivers, underage drivers, and repeat offenders, all other states in the U.S. have a 0.08 BAC limit. In Utah, where the legal limit has been 0.05 since December 30, 2018, sales of alcohol have actually increased 28%. Arkie Koehl, MADD Hawaii Public Policy Chair, theorizes maybe people drink more once they’re home safely. Data on whether the lower DUI BAC limit has lowered fatalities in the Beehive State apart from other factors is inconclusive.

New Mexico: In the Land of Enchantment, prosecutors and law enforcement are looking to expand when a search warrant may be obtained for a blood draw. Presently, police can only get a search warrant if the arrest is for a felony multiple DUI offense, or one resulting in serious injury or death. If the law passes, police will first have to ask consent for a blood test, but if denied, can then ask a judge for a warrant. Over objection from some defense lawyers, New Mexico State Police Chief Troy Weisler says increasing numbers of DUI drug cases necessitate this expanded investigative authority.

Montana: A bill passed by the House 98-2 in the Treasure State House would make it so if a driver kills someone while registering a BAC of 0.16 or higher, twice the state’s legal limit, they’d be charged with aggravated vehicular homicide and serve no less than three years in prison. Representative Tom France (D-Missoula) didn’t want to oppose the bill, but said, “The problem with this bill is it mandates certain outcomes and it does not give county prosecutors the discretion to recognize that every tragedy is a unique tragedy and that in some instances a mandatory sentence by the judge may not be the appropriate punishment.” Last year, Forbes ranked Montana the number one U.S. state in DUI deaths.

02/13/2025

Picking Apart Pedestrian Cobb Crosswalk Casualties

In an in-depth Marietta Daily Journal article dated February 8-9, 2025, Cobb County’s, Georgia’s, and the nation’s problem of pedestrian vs. motor vehicle accidents was covered. Rather than do a “book report” on the article, here are just a few of the take-away points which I found interesting:

1. In 2024 alone, 14 pedestrians were killed by motor vehicles in Cobb County while per Georgia Department of Transportation (GDOT) data, between 2013 to 2023, 168 pedestrians were killed.

2. Across the United States, from 1980 to 2010, pedestrian fatalities steadily decreased, but then started rising nearly every year through 2022 with 7,737 pedestrian deaths in 2022 alone.

3. The data in No. 2 correlates with an increased use of cell phones by both drivers and pedestrians. 53% of all car crashes had at least one driver confirmed or suspected of being distracted according to the GDOT.

4. Georgia defines a ‘fatal pedestrian crash’ as one where someone dies as a result of their injuries within 30 days of the crash. A ‘serious injury crash’ is on where the injured person cannot walk, drive, or continue normal activities which they could beforehand.

5. Not surprisingly due to the physics of speed and mass, and the disparities of heavy metal meeting flesh and bone, though pedestrian-vehicle crashes make up less than 1% of Cobb crashes from 2018 through 2022, they make up 9% of all fatal and serious injury crashes.

6. Also not surprisingly, light is a big factor with 71% of the Cobb County pedestrian-vehicle crashes occurring when its dark out, and this percentage further breaks down showing 45% of the crashes occurring where there are no streetlights. (It was not clear to me what was the time frame for this data.)

7. Per GDOT data, of Cobb’s 168 pedestrian deaths from 2018 to 2023, the weather was clear 62% of the time, the road dry 80% of the time, and DUIs were implicated just 3% of the time.

8. For these 168 deaths, 58% of the time the pedestrian was outside the crosswalk and in the crosswalk 9% of the time. Other times they were on the side of the road or “darting into traffic.” However, transportation policy activist Matt Stigall contends pedestrians should not be blamed when they’re forced to navigate infrastructure designed for cars, as well as roads with no sidewalks, and crosswalks being few and far between.

9. Cobb County has several hotspots where the majority of the pedestrian-vehicle accidents occur including a 1/2 mile stretch of South Marietta Parkway between Fairground Street and Aviation Road, and a 1.5 mile stretch of Austell Road between Sandtown Road and County Services Parkway.

10. Though not data per se, Marietta Police Department spokesman Officer Chuck McPhilamy points out that there is lifelong trauma that goes along with these accidents when injured pedestrians, drivers and first responders have to see things most of us fortunately never have to witness.

In Georgia, several laws within Title 40 regulate crosswalks, pedestrians and motor vehicles, and who has the right of way and when. But whether a pedestrian or truck is or isn’t following the law, it’s common sense that it’s not a fair fight when the two collide. Anecdotally, my wife was in a crosswalk with the signal allowing her the right of way when a police car almost ran her down. It didn’t have its blue lights or sirens going. Thankfully she was not run over, but in this instance, the officer driving the police car didn’t even stop to apologize. He just kept going.

Now, to tell on myself, I was turning left not too long ago and almost hit a pedestrian who had the right of way. I was not looking at my phone or messing with anything in my car. I was just not paying attention and, while not an excuse, the pedestrian was wearing drab, colorless clothing. But, thank Jesus, I did see her before a tragedy occurred. I rolled down my window and apologized profusely. She said, “That’s okay, dear.” Dang. We were both lucky.

If you are crossing a street, assume the drivers aren’t paying attention. We’ve heard about, if not practiced, defensive driving. But we need to also practice defensive walking. There are so many drivers out there looking at their phones, fiddling with their navigations systems, or just thinking about something besides what they’re supposed to be doing - safely navigating a vehicle weighing maybe a couple or even several tons. I’m guilty of all of the above mentioned sins, but am trying to be less of the distracted, irresponsible buffoon I’ve been.

As for the pedestrians out there, if you’re anywhere near where a car or truck might be, even when you’re on a seemingly safe sidewalk, or you clearly have the right to cross a street, be alert and have your head on a swivel if you want to keep it.

02/07/2025

DUI Deportable

Bill H.R. 875, introduced in this 119th Congress (2025-2026), will be of special interest to non-citizens now in the United States and their DUI lawyers. The official title of the bill as it now stands is, “To amend the Immigration and Nationality Act to provide that aliens who have been convicted of or who have committed an offense for driving while intoxicated or impaired are inadmissible and deportable.” Doesn’t exactly roll of the tongue, but at least it tells a person what the bill should be about. However, the text of the bill is not yet available on congress.gov.

The bill was introduced January 31 by Republican House Representative Barry Moore of Alabama’s 1st Congressional District which includes Mobile, and was sent to the House Judiciary Committee that day. The bill now has 20 co-sponsors, all Republican, with five from the border state of Texas. Of the more well-know co-sponsors are Paul Gosar of Arizona’s 9th District, Nancy Mace of South Carolina’s 1st District, and Darrell Issa of California’s 48th District. None yet are from Georgia where I practice.

As a defense attorney, I will be watching to see if the bill’s text will make deportable non-citizens who were arrested based on an alleged DUI but then had their charges reduced, or only those actually convicted of a DUI either by plea or trial.

Just a few of the other questions I'm interested in:

What if the person has no DUI convictions, but multiple arrests that began as DUIs? Will there be any grace for those who had DUI convictions before the proposed law goes into effect? If so, would it be anytime before, or only for convictions before a certain time period - say 10 years?

Depending on the final text of the law, there will be tremendous pressure on DUI defense lawyers to either push for negotiated reductions, or fight motions to exclude evidence, and go to trial. Just the possibility already has me thinking about what I need to do for certain clients. And while few bills move quickly through the process of becoming a law, let alone even getting as far as the Oval Office for the President's signature, given the present political make-up and mood of the nation and in DC, I am of the opinion this is one that could become a law - and soon.

02/06/2025

The Cobb County Police Department recently received $385K from the Governor's Office of Highway Safety - a H.E.A.T. grant which stands for Highway Enforcement of Aggressive Traffic. Cobb was one of 26 Georgia counties to receive this grant which has as a primary goal of reducing crashes, injuries and fatalities caused by impaired driving and speeding.

Interestingly, as it pertains to Cobb County and what kind of drivers we have here, the grant is awarded based upon data indicating which jurisdictions in the state have the highest rates of accidents, injuries and fatalities caused by drunk driving and speeding. In addition to increased police visibility, especially during weekend nights, also expect a higher probability of having to stop at a road block sobriety checkpoint. So, have proof of insurance and registration with you when you're out and about, and if you're going to have more than a drink, consider having a designated driver, or using Uber or Lyft. All of those options are far cheaper than having to hire a good lawyer - or even a bad one.

02/05/2025

Nearly 100 bipartisan legislators are supporting repeal of a 2018 law that mandated use of school zone traffic cameras. Rep. Dewey McClain (D-Lawrenceville) supported the original bill, but now says, “There's no school on Saturdays, there's no school on Sundays. There’s no schools at 7 or 8 o'clock at night. Why are the cameras still on?” Republican Dale Washburn, representing District 144 which includes Macon, heard complaints from constituents claiming the privately run camera systems had erroneously tagged them as speeders. As an aside, one of the ways local governments using privately run traffic enforcement cameras get around both the high burden of proof in a criminal matter and the Confrontation Clause is to make such infractions civil.

The state passed the law after a speeding car killed Edna Euma, a crossing guard in Austell. Bob Dallas, former director of the governor’s office of highway safety, thinks the law has been successful slowing traffic in school zones. “It’s all about safety. And I know (some legislators are) trying to make it about something else. But I think in their conversation, they’ll hear the safety story and realize how this benefits Georgians.” He says if the program needs to be modified, it should be, but that eliminating it all together will result in more deaths and injuries in school zones. Indeed, one has to wonder, based on McClain’s complaint, why the cameras just don’t operate when schools aren’t open? Why must this be an all or nothing approach?

Backers: Cameras have slowed traffic, yet 97 lawmakers seek repeal of 2018 law

12/16/2024

While I'm disappointed I wasn't nominated as best nonprofit, I did get a nod for the Cobb 2025 Best "Attorney - Criminal." Probably should add "Defense" at the end of that descriptor, but that's the category as nominated.

Thing is, I'm not even the best lawyer in my own house. But if you have a moment, you can follow the link below and find "The Law Office of Alan J. Levine" under that heading and vote for me each and every day. Or every other day. Or just once. Whatever you're willing to do is much appreciated.

While you're there, maybe also go vote for the best lawyer in my home - Dawn Levine , under "Attorney - Tax & Estate" and her partner Amanda Riedling, best "Attorney - Elder Care." Their firm is Georgia Wills, Trust and Probate.

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