“Truth and Excellence in Preparation and Strategy”

        Verum quod Excellentia in Paratus quod Intentio

 

South Atlanta Attorney Keith Prater Represents Clients Accused of DUI and Serious Misdemeanors – call for an appointment today 770-253-7778:

 

What is a serious misdemeanor?

 

“We’re not talking about speeding tickets, although, if you get enough of them, they can rise to the level where getting a lawyer is a good idea.” Says attorney Keith Prater, who has handled criminal cases for the last 25 plus years.

“Driving under the influence (DUI), violent offenses like battery, especially under the family violence statute, these are cases where you really should hire an attorney.  “I’ve represented clients in all sorts of misdemeanor matters, which are punishable by up to 12 months in jail.” KP

“Serious Misdemeanors are the offenses that keep on giving.  A record of them in these modern times lasts forever and does not automatically reset to zero after a few years like it did historically.  As a result even a single serious misdemeanor conviction can bar employment, cause a person to be fired, increase insurance rates … not just for a temporary time, but for life.”  KP

Jail time is common in serious misdemeanor cases where the statute provides for mandatory incarceration.

“Even a conviction for a suspended license can result in jail time.  And the fines are always increasing.  In one county, the suspended license fine can rise to well over $2000.”  KP

Even though the courts can only sentence a person to up to 12 months in jail for each misdemeanor conviction, a conviction for multiple misdemeanors can result in consecutive sentencing.

“Years on probation or even in jail is possible,” says Keith.  “Don’t take the small cases lightly.”

What do you do if you are stopped by law enforcement?

“Be polite to the officer,” Keith encourages his clients to never argue with the officer.  The vast majority of law enforcement are good people doing difficult work and they are courteous.  Be courteous back.”  KP

  “The 4th Amendment to the US Constitution was seriously warped in 1968 with the landmark case of Terry v. Ohio.  This except to our constitutional rights which was supposed to be a rarely used exception to the ban on search and seizure, instead has become a constitutional right to the state [law enforcement] to stop us in our private lives vehicles for “reasonable suspicion” which every year continues down the slippery slope the dissenters in Terry v. Ohio warned us about, toward being meaningless in Court.  It has become not an exception warranted by the totality of circumstances but whatever the officer says.

Reasonable suspicion is a standard that is less than probable cause.  It really is whatever “magic phrase” the officer was taught to say and a check-off by the Court.

The 4th Amendment to the US Constitution prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.

“Today, our 4th Amendment guarantees are non-existent I will leave it to the pundits to debate whether suspension of our right to happiness and freedom has now become necessary.  But in court, I and every other real lawyer will argue on behalf of my clients and seek to reclaim what rights have been lost and preserve those that seem to be slipping away.”  KP

Keith encourages everyone to always seek out legal advice, even when stopped by law enforcement.

“Ask for a lawyer, and confirm when you are stopped whether you are free to leave.”

What if there is a video present?

 “Video has become a big part of most every criminal case I handle.  If I were stopped, I would confirm that there is a video system and make sure that anything I say is audible.  Video is a Godsend for both good law enforcement and for the wrongly accused.”  KP

What should be said to law enforcement?

“Certain questions have to be answered these days.  If an officer asks you for your driver’s license or insurance information, give it to him.  But don’t engage in conversation.  You don’t have to … the less you say the better.”  KP

If the officer takes your license, you can ask for it back.

“Whether you are free to leave after being stopped is often an issue in a traffic stop case. If the officer won’t give you your driver’s license back, you might already be in custody.”  KP

If you are in custody, often meaning you are not free to leave, you have certain rights that must be read to you prior to an officer interrogating you.

“The warnings that an officer has to read to you go back to the US Supreme Court 1964 and 1966 cases of Escobedo and Miranda.” Keith says. “And a key component of those rights is your right to an attorney.”

In a DUI case, should you agree to a State’s tests?

Let’s get the lay of the land straight.  Drunk driving is a serious phenomenon and does and should carry with it serious penalties including jail time.  At the same time we as a society must acknowledge that it is a shifting crime, a technical crime, and one that should not prevail unless there is the absolute absence of doubt that it occurred.

“When I began practicing the presumption of being less safe to drive was a 0.08 blood alcohol reading.  A major study sanctioned by the American Medical Association said that was the “norm” for significant poor reaction skills and poor driving deviation.  Crimes can’t be about “norms” however and that is why the statute requires that the person be less safe than that person is otherwise.”  KP

 

How does the accuser prove “less safe?”

Prior to being arrested for DUI, an officer will often request that a person perform field sobriety tests.  One of the field sobriety tests is the request that the driver blow into an Alcosensor on the spot.  The Alcosensor is not mandated.  It shows the presence of Alcohol.  The presence of Alcohol is not a crime.  In fact Appellate Courts have said for years and years in opinion after opinion that driving after drinking alcohol is not a crime.  The crime is impaired driving.

In a recent interview:  “Sometimes an officer won’t even tell you that you can refuse to take these field sobriety tests,” … Keith laughs shaking his head … “And these tests are really invasive.  They make you do all sorts of things including the 9 step walk and turn, something called the one-legged stand test, and even this test where they make you follow a finger or a pen with your eyes.  The only purpose of field sobriety tests is to accumulate evidence against you.  I doubt a skilled acrobat could pass some of the tests.”  KP

Keith is often asked by clients what he would do if asked by an officer to take field sobriety tests.

“I wouldn’t take them,” Keith says emphatically. “Most of the time, the officer has already made up his mind that you are going to jail, so, why give them any evidence to support a bogus charge?”  KP

After being arrested for DUI, an officer often reads the person he or she is arresting something called The Implied Consent Warnings.

“I would advise my clients to make an informed decision,” Keith admits. “If you have a medical issue, have been painting, have been cleaning your carport or garage, have just driven through repaving with your windows down, have something, anything, in your system that may show up in a test, you do have the right to refuse the test.”  However, always remember that refusing to take a breath or blood test Refusing to take a State-administered breath or blood test (or something called other bodily substance) could result in loss of your driver’s license privileges for an entire year.

“If you decide to refuse the State-administered test, hire an attorney like me immediately after bonding out of jail.” Keith advises. “I can request an administrative hearing for you so that you can fight and try to prevent the one-year suspension of your license.” KP – call for an appointment – 770-253-7778.

This suspension is often called a “hard” suspension because you cannot get a limited driving permit.

“But you can challenge this in the administrative courts,” Keith instructs. “And if you go to trial and are found not guilty, the administrative suspension can be lifted.”

What happens if you are convicted of a DUI?

“Getting your first DUI is serious, the law provides that you must serve 24 hours in jail,” says Keith. “And some prosecutors are seeking more time than that.  And judges are, in some cases, giving them what they ask for.”

A first time conviction for DUI will also result in a fine between $1000 and $2000, community service, and up to 12 months of probation.  Judges are also ordering other sentencing elements such as a drug and alcohol evaluation and treatment.  A second or subsequent conviction for DUI can mean even more jail time and much higher fines.

 

 

The law firm of Keith Prater handles serious misdemeanors including but not limited to: