Experienced Kennesaw DUI Lawyers at Chestney & Sullivan

Our experienced Kennesaw DUI lawyers at Chestney & Sullivan can speak with you about your Kennesaw DUI case anytime, including after-hours, weekends, and holidays! Remember that you only have thirty days from the date of your DUI arrest in Kennesaw to address an administrative license suspension action. We can discuss different ways to handle a license suspension action and your criminal charges. Also, Mr. Sullivan has a case in front of the Georgia Supreme Court dealing with the admissibility of blood test refusals in a criminal trial.  He won a motion to suppress the refusal to submit to a blood test at the trial court, the prosecution appealed, and the case is now in the Georgia Supreme Court. Many pro-defense appellate rulings may impact the prosecution of your case. Call Chestney & Sullivan today: 404.816.8777

Arrested for a DUI in Kennesaw?

We understand what you are going through. If you have been arrested for a DUI in Kennesaw, experienced DUI trial attorney James “Skip” Sullivan can discuss your case anytime – including after-hours and weekends! Mr. Sullivan is a former prosecutor.  Our Kennesaw DUI lawyers offer a free in-office consultation on how we can effectively defend your Kennesaw DUI charges. Kennesaw Municipal Court is located at 2529 J.O. Stephenson Avenue, Kennesaw, Georgia 30144.  The Kennesaw Police Department is located in the same building.  If you were arrested for DUI in Kennesaw, you will be booked into the Acworth Detention Center.  Kennesaw has a contract with that facility to house inmates. Our Kennesaw DUI lawyers appear in Kennesaw Municipal Court regularly.  Kennesaw DUI lawyers need to be familiar with this jurisdiction. Judge Luke Mays is the current Chief Judge appointed by the Kennesaw City Council. Charles Chesbro and Richard Blevins have been appointed as Associate Judges for Kennesaw Municipal Court.  The solicitor (prosecutor) of your Kennesaw DUI case is Randall Bentley.

Can I have a trial in Kennesaw Municipal Court in my DUI case?

Kennesaw Municipal Court is a “limited jurisdiction” court, meaning they do not have jury trials.  If you want a judge to decide your Kennesaw DUI case without a jury, that is called a “bench trial.”   At 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. Unfortunately, you will not be able to have a bench trial in your DUI case in Kennesaw.  The Prosecutor will not allow it, so your case will need to be “bound over,” or transferred to Cobb County State Court for trial.

So I want a trial in my DUI case in Kennesaw. What happens next?

Sometimes, a jury trial is the best option to avoid a DUI conviction on your Kennesaw DUI case.  Because the Kennesaw Municipal Court does not conduct jury trials – and will not conduct a bench trial, 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 case is filed with the Cobb Court Clerk’s Office. 

Who is the solicitor in Cobb State Court that will be prosecuting my case?

The current elected Cobb County Solicitor is Makia Metzger. Generally, two prosecutors are assigned to each of the 12 state court judges. Because each State Court judge handles their caseloads differently, Kennesaw DUI lawyers must know how each courtroom operates.  Our Kennesaw DUI lawyers try DUI cases in Cobb County State Court often.  Because we frequently contest DUI cases in Cobb County State Court, we are familiar with the judges and prosecutors who will be handling your case. There may be also a better chance in Cobb State Court to negotiate a resolution to avoid a DUI conviction than Kennesaw Municipal Court.

How our skilled Kennesaw DUI lawyers build a successful DUI defense:

To build a strong DUI defense in your Kennesaw DUI case, our experienced DUI lawyers start by learning everything possible about your case from you.  Based on this information, our Kennesaw DUI attorneys search for more favorable evidence by using specialized resources as needed to determine if all testing and other details of your Kennesaw DUI arrest were accurate and legal.  This forms the basis for a solid drunken driving defense in Georgia. We gather 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, accident reconstructionists, private investigators, breath test/field sobriety experts, medical professionals, and video illustrators, to name a few, to help build a solid defense in your Kennesaw DUI case.  Our Kennesaw DUI lawyers analyze a case from the initial stop or reason why the police were involved, look 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 conduct best administrative license suspension hearings, preliminary/committal motion hearings, and trial.  This  approach is an effective way to ensure we are thorough in defending your Kennesaw DUI charges.

Can I enter a guilty plea and avoid hiring an experienced Kennesaw 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 severe cases prosecuted in Kennesaw Municipal Court or 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 Kennesaw DUI defense lawyer is better able to handle than someone representing him or herself.  Here are some reasons why you may consider hiring our Kennesaw DUI attorneys rather than representing yourself:

• You can jeopardize your driving privileges if you go to court and enter a guilty plea to your Kennesaw DUI, especially if there are DUI Child Endangerment charges in addition to your DUI charge.  If a Kennesaw DUI Task Force officer has arrested you, you should have been notified of an administrative license suspension action.  Enter a guilty plea without adequately 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 correctly.
• If your license is suspended for refusing the State’s chemical test from losing a license suspension hearing or failing to address a license suspension action within 30 days from your arrest, your Georgia driver’s license or driving privileges will be suspended for a year with NO PERMIT.  Properly coordinating and handling the Kennesaw DUI criminal charges along with the license suspension action can improve your chances of being able to drive.
• Other charges besides your Kennesaw DUI charge may be more severe and carry more punishment than the DUI charge itself, like Vehicular Homicide, Fleeing and Attempting to Elude, Hit and Run, or felony drug charges. 
• Sometimes, the prosecutor gives a bad plea offer.  Even if you decide not to contest your case, an experienced Kennesaw DUI defense attorney who is familiar with Kennesaw Municipal Court, Cobb 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 apply.  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.
• A nolo contendere plea will not save a license suspension and still counts as a conviction – the same as a guilty plea or guilty verdict after trial.

Administrative License Suspension and your Kennesaw DUI

IMPORTANT INFORMATION CONCERNING YOUR DRIVER’S LICENSE WHILE YOUR KENNESAW DUI CRIMINAL CHARGES ARE PENDING IN COURT

Besides your criminal case pending in Kennesaw 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 Kennesaw, chances are the officer served you with a notice of a license suspension action.  Whether you refused the Kennesaw DUI officer’s chemical test or the breath test results indicated an alcohol concentration above the legal limit, Georgia law requires your Kennesaw 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 Kennesaw DUI officer may have had you sign it.  Sometimes, this paperwork gets lost (you may have received it, but it 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 of whether you have received a DDS-1205 form from your Kennesaw DUI Officer, you need 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 choosing without the advice of an experienced Kennesaw DUI lawyer]:

1. Do nothing within 30 days from the date of your Kennesaw DUI arrest:

   In most cases, we do not recommend doing nothing within 30 days of your Kennesaw DUI arrest. If you do nothing and your Kennesaw DUI officer initiates an administrative license suspension action, then on the 46^th day after the date of your Kennesaw DUI arrest, the Georgia Department of Driver Services will automatically suspend your driving privileges for one year with no permit to drive.  Even if you did not receive the DDS-1205 form due to your Kennesaw DUI arrest, we still recommend that you take some 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.

2. 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 Kennesaw 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 Kennesaw DUI officer’s request for a state-administered chemical test of your breath, blood, urine, or other bodily substances.  A $150 filing fee is made payable to the Dept. of Driver Services for DDS to process the hearing request. 

3. Properly waive your right to an administrative hearing in your Kennesaw DUI case and have an ignition interlock installed:

   This track came into effect July 1, 2017.  You can adequately waive your right to an administrative hearing in your Kennesaw DUI case and have an ignition interlock installed. This allows the first DUI arrest in five years for drivers to be able to drive in the state of Georgia and fight their Kennesaw DUI criminal case without losing the privilege to drive.  It comes with a cost, of course.  It involves waiving your right to an administrative hearing through the Georgia Department of Driver Services. You would 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 Kennesaw DUI officer’s request for a state-administered chemical test.  If you choose this track, we highly advise installing the ignition interlock first and then going 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, the stigma of having the ignition interlock device installed in their vehicle is not worth it.  The ignition interlock device is also expensive: it requires installation and monthly monitoring fees.   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 Kennesaw 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 their Georgia driver’s license;
• If the person holds a Georgia commercial driver’s license (CDL), they must downgrade to a non-commercial Georgia driver’s license to obtain and maintain the permit;
• The person cannot have any convictions for DUI in the 5 years preceding application for the permit.  If there is a DUI arrest with a DUI conviction within 5 years of the current Kennesaw 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 their Georgia driver’s license, either to the Kennesaw DUI officer at the time of arrest or to DDS before 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 they consent to or refuse the state-administered chemical test requested by the Kennesaw 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 4 months.  If they are subsequently acquitted of the underlying Kennesaw 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 12 months, regardless of the outcome of the underlying Kennesaw DUI charge.    

Successful maintenance of the ignition interlock device must be evidenced by the permit holder to DDS by producing satisfactory monthly monitoring reports before DDS removes 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. Still, it may only be renewed one time once the permit holder becomes eligible to reinstate their 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.

As 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 their place of employment or performing the regular duties of their occupation;
• Receiving scheduled medical care or obtaining prescription drugs;
• Attending a college or school at which they are regularly enrolled as a student;
• Attending regularly scheduled sessions or meetings of treatment support organizations for persons who have an 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 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 under 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
• Conduct monthly monitoring visits with the permit holder’s ignition interlock device service provider.

Please contact us today at 404.816.8777 to discuss your Kennesaw DUI case with our experienced defense lawyers. Our dedicated Kennesaw DUI lawyers are experienced in contesting DUI cases and handling license suspension actions. We can review your case and prepare a strategy for your criminal case and license suspension action.

So, I correctly requested a license suspension hearing in my Kennesaw DUI case; what happens next?

The license suspension action is a civil action separate from your Kennesaw DUI criminal charges and only deals with your license or privilege to drive in this state.  The license suspension action is litigated by a completely separate court from your Kennesaw DUI criminal case. Once the Georgia Department of Driver Services processes your request for a hearing, your case is sent to the Georgia Office of State Administrative Hearings (OSAH), where a hearing will be scheduled before 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 an order is entered from an OSAH judge.

The scope of the license suspension hearing is minimal:

At a license suspension hearing, the judge has a minimal role in deciding your Kennesaw DUI case.  The judge is bound by law to only look at certain statutory factors to determine whether those 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 daycare, or any other hardship you may have 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 Kennesaw 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 Kennesaw 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 correctly 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 license suspension hearing conducted?

Like other court proceedings, the OSAH judge will enforce the Georgia Rules of Evidence.  Because the burden is on the Kennesaw DUI officer to establish that the statutory factors were met, the Kennesaw DUI officer testifies first.  Some jurisdictions allow the officer to get 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 in direct examination.  The Kennesaw DUI officer is then subject to cross-examination.  Sometimes, our Kennesaw DUI lawyers 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 are finished, each side can make a closing argument.  The judge will then typically decide within five business days and transmit that decision to the parties and the Georgia Department of Driver Services.  If there is an error in how the judge ruled, an appellate process is available to review the court’s decision.

What happens if I win the hearing?

Suppose the OSAH judge finds that one or more of the applicable statutory factors above were not met. You win! In that case, the judge will issue an order reversing the suspension action and transmit it to the Georgia Department of Driver Services. Then, the Georgia DDS will delete the license suspension action from your driver’s history (no administrative license suspension).  This does not mean that your Kennesaw DUI criminal charges are being dismissed, but a license suspension hearing can be a great tool for our Kennesaw DUI lawyers to gain an advantage in your DUI criminal case.

What happens if I lose my license suspension hearing?

Suppose the judge finds that all applicable statutory factors were met by a preponderance of the evidence (a lower standard of proof than beyond a reasonable doubt) at your license suspension hearing. In that case, the judge will issue an order affirming the license suspension action and transmit the order to the Georgia Department of Driver Services, which will then suspend it.  Again, because the burden on the Kennesaw DUI officer is so low to meet in these hearings, there is a good possibility that your license may be suspended. However, our Kennesaw DUI lawyers still may be able to gain an advantage in your Kennesaw DUI criminal case based on testimony from the hearing.  The decision can be appealed if the judge committed an error in a ruling.

Can I handle the license suspension hearing myself in my Kennesaw DUI case?

Because a license suspension action from a Georgia DUI arrest is a complex subject that even many lawyers don’t understand, we strongly encourage you to contact us immediately to discuss your Kennesaw DUI case. It is not wise to represent yourself at these hearing. You want an experienced Kennesaw DUI lawyer at your side. Too many variables can impact your driving privileges, which are 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 Kennesaw DUI lawyers today:

If you are facing a Kennesaw DUI charge, a license suspension action, or have been ticketed for a serious traffic offense, contact our experienced Kennesaw 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.