Practicing the Law Under the Influence

On a rainy night in DeKalb County, a driver with a blood alcohol level of .12 traveled around a slick curve and smashed into a police car parked on an entrance ramp leading to Highway 85 southbound. Ask anyone to guess the outcome of this sticky situation and most would probably say that the jury found the defendant guilty of driving under the influence. Case closed.

However, Michael Hawkins, a partner at Chestney-Hawkins in Atlanta, helped the jury to see the case a little differently. Facts showed that the police car was parked partially in the road; in other words, it was an accident waiting to happen. And because Georgia law states that the police can’t stop somebody unless they have observed a traffic violation or they have a reasonable suspicion that a crime is being committed, this driver was not at fault.

For Hawkins, the youngest lawyer to become board-certified by the National College of DUI Defense, and the firm’s three other lawyers, including partner Robert Chestney, victories like this one are not unusual.Their law firm devotes its time exclusively to defending DUI cases throughout the northern half of Georgia.The majority of the firm’s near 250 cases a year are resolved without defendants incurring a DUI on their permanent records. And 90 percent of the firm’s fully contested cases result in an acquittal, a dismissal or a reduced charge.

To what do they attribute their success? “Just hard work,” says Chestney. Also, the police often inadvertently help the defense, he says. “The most common mistake that the police make — at least during a trial — is that they refuse to acknowledge the weaknesses of their case, and in doing so they lose credibility with the jury.”

Also in danger of losing credibility is the Georgia Bureau of Investigation Crime Lab in Atlanta. Recently, it was discovered that on at least two occasions Atlanta’s GBI Crime Lab misidentified blood samples. It happened when the machine running the tests was backed up, causing the mistake. Nobody at GBI publicly admitted to the error until after a lawsuit was threatened. Hawkins believes there may have been other mistakes. “It’s like seeing just one cockroach,” Hawkins says. “You may only see one, but there are probably hundreds of others behind the cupboard.”

As a result, what once was considered to be a reliable test is now questioned. “Although we once believed the blood testing to be the most accurate form [of testing], we have lost confidence in GBI,” Hawkins says. “When the blood test is performed, we demand our own independent test.” It’s worked. There have been times when Chestney-Hawkins has found a blood sample to be below the legal limit, while GBI has found the same blood sample to be above .08. After testing it again, GBI’s results have matched those of the firm.

This kind of tenacity is common among the Chestney-Hawkins attorneys. According to Hawkins, the penalties have become greater under Georgia law for those found guilty of driving under the influence, but the protections afforded a citizen have not yet increased. “The laws have become more prosecution-oriented,” adds Chestney. “For instance, in Georgia, there is no recognized right to talk to an attorney before you decide whether to submit to a test.We are looking for cases where our clients have attempted to exercise that right and take the matter to the Georgia Supreme Court.”

They May Just Win

Chestney-Hawkins experienced a major victory in October 2003, when the Georgia Supreme Court unanimously ruled it unconstitutional for a police officer to make a driver involved in an accident resulting in a serious injury or fatality submit to a blood test — if there’s no probable cause that the driver is intoxicated. Under the old law, a marijuana user could still get slapped with a DUI — even if he or she wasn’t under the influence while driving. (Marijuana stays in the bloodstream for approximately 30 days.)

Although the firm has no immediate plans to try to increase the legal blood-alcohol limit, Chestney and Hawkins would like to see a change. “The first per se limit we had was .12. And it was lowered to .10. And then it was lowered to .08,” says Chestney. “It isn’t that a new study has demonstrated that people are actually impaired at a lower level than previously suspected. It’s an effort to completely eliminate the possibility of someone driving under the influence. They should recognize that it’s been a job well done and not continue to make it easier and easier for the prosecution to obtain a conviction.”