Experienced Marietta DUI Lawyers at Chestney & Sullivan

Our experienced Marietta DUI lawyers at Chestney & Sullivan can speak with you about your Marietta DUI case anytime, including after-hours, weekends, and holidays! Remember, you only have thirty days from your arrest to address an administrative license suspension action that is separate from your Marietta DUI criminal case. Our Marietta DUI lawyers are available to discuss your case with you. 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 Marietta?

If you have been arrested for a DUI in Marietta, experienced DUI trial attorney James “Skip” Sullivan can discuss your case anytime – including after-hours and weekends!  Mr. Sullivan is a former prosecutor.  Our Marietta DUI lawyers offer a free in-office consultation on how we can effectively defend your DUI charges in Marietta Municipal Court or Cobb County State Court.  Call us today at 404.816.8777.  Our experienced Marietta DUI lawyers are prepared to vigorously protect your Driving Under the Influence case. 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 regularly. Marietta DUI lawyers must be familiar with this jurisdiction.  Judge Lawrence E Burke is the Chief Judge.  Joan Bloom, Melinda Taylor, Lance McCoy, and Phyliss Collins are the associate judges in Marietta Municipal Court.  The former Chief Judge, Roger Rozen, retired in 2021. The solicitor (prosecutor) of your Marietta DUI case, effective January 8, 2020, is Ben F. Smith.  Other solicitors may fill in for Mr. Smith, such as Robert Donovan, Robert Schnatmeier, Latonia Hines, Ronald Hood, Rachel Plevak, and Courtney Brubaker. The former solicitor for Marietta Municipal Court, Robert Donovan,  retired as the principal solicitor of Marietta Municipal Court, effective December 2019. However, he does appear there as an assistant solicitor.  

Marietta Municipal Court is a “limited jurisdiction” court, meaning they do not have jury trials.  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. Our Marietta DUI lawyers carefully evaluate each case to determine whether a bench trial is best.

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 must 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 Makia Metzger. Generally, two prosecutors are assigned to each of the 12 state court judges. Because each State Court judge handles their caseloads differently, Marietta DUI lawyers must know how each courtroom operates.  Our Marietta DUI lawyers try DUI cases in Cobb County State Court regularly.  Because our Marietta DUI lawyers frequently contest DUI cases in Cobb County State court, we are familiar with the judges and prosecutors handling your Marietta DUI case.

The Marietta Police DUI Task Force or H.E.A.T. Unit is incorporated into their Selective Traffic Enforcement Program (STEP) and operates with the Governor’s Office of Highway Safety.  The Marietta Police DUI Task Force receives grants to supplement its 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 utilizes 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, has received a minimum of 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 Marietta DUI Task Force officers are certified by the Georgia Bureau of Investigation to operate Georgia’s GBI-approved breath testing instrument, the Intoxilyzer 9000.   

If you have been arrested for DUI by the Marietta police, you will be taken to the Smyrna Jail at the Smyrna Police Department. 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 9000.  We currently own two Intoxilyzer 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 features similar to those of a DVR or TVO, which many people have at home for their TVs.   Their video equipment continuously records but will not preserve anything until the officer manually activates recording or the Marietta DUI officer activates his emergency equipment (lights).  Then, the video will be preserved between 30 and 60 seconds 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.

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 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.  We gather information, videos, 911 calls, possible surveillance videos, police reports, documents, and road/scene conditions.  There are also times when we 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 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).  We then develop strategies to conduct the license suspension hearings, preliminary/committal hearings, motion hearings, and trials.  Our approach is an effective way to ensure we are prepared to defend your Marietta DUI.  

Can I enter a guilty plea 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 severe cases prosecuted in Marietta Municipal Court or Cobb County State Court.  It is not wise to enter a guilty plea and avoid hiring an experienced Marietta DUI lawyer. 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 jeopardize your driving privileges if you go to court and enter a guilty plea by yourself, especially if you are charged with DUI Child Endangerment in addition to your DUI charge.  If you have been arrested by a Marietta DUI officer (or any Georgia police officer), you should have been notified of a 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 and unless the suspension action is conducted correctly.
• 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 besides your Marietta 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 Marietta DUI attorney who is familiar with Marietta 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.
• 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. 
• 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.

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 with the Office of State Administrative Hearings 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.  In that case, 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 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 Marietta 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 Marietta DUI lawyer]:

1. Do nothing within 30 days of your Marietta DUI arrest date:

   In most cases, we do not recommend this path. If you do nothing and your Marietta DUI officer initiates an administrative license suspension action, then on the 46^th day after the date of your Marietta 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 Marietta DUI arrest, we still recommend that you take some action instead of doing nothing.  However, there are limited circumstances where our Marietta DUI lawyers 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 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.  A $150 filing fee is made payable to the Dept. of Driver Services for DDS to process the hearing request. 

3. You can adequately waive your right to an administrative hearing in your Marietta DUI case and install an ignition interlock.

   This track came into effect July 1, 2017.  This allows the first DUI arrest in five years for 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 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 Marietta 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 expensive, requiring 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 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 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 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 their Georgia driver’s license, either to the Marietta 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 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 4 months.  If they are 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 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 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.

Contact us today at 404.816.8777 to discuss your Marietta DUI arrest with our dedicated Marietta DUI lawyers. 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.  The license suspension action is litigated by a separate court from your Marietta 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 in front of a judge from that agency.   A hearing date is typically set roughly 60 days from your Marietta DUI arrest date.  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 hearing is minimal:

At a hearing, the OSAH judge has a minimal role in deciding your case.  The judge is bound by law to only look at certain statutory factors to determine whether those 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 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 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 severe 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 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 hearing conducted?

The judge will enforce the Georgia Rules of Evidence like other court proceedings.  The officer testifies first because the burden is on your Marietta DUI officer to establish that the statutory factors were met.  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 Marietta DUI officer is then subject to cross-examination.  Sometimes, we may place our clients or 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 judge finds that one or more of the applicable statutory factors above must still be met. 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 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 my 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). 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 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. However, we still may be able to gain an advantage in the Marietta DUI criminal case based on testimony from the hearing.  The decision can be appealed if the judge commits a ruling error.  Also, if your Marietta DUI charge is reduced or dismissed, or you are found not guilty, the suspension is lifted and deleted from 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 are 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.  Too many variables can impact your driving privileges, which will be discussed here without knowing the 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.

Warning to Drivers

As a warning to drivers, the Governor’s Office of Highway Safety mobilizes sober driving campaigns yearly, including its Click it or Ticket and 100 Days of Summer HEAT campaigns from mid-May through Labor Day. Operation Zero Tolerance ran from June 24 through the 4th of July holiday weekend. Its Drive Sober or Get Pulled Over program ran from August 14 through Labor Day, September 2, and will again run from mid-December through January 1 (New Year’s Day).   Georgia State Patrol, Cobb County Police, Marietta Police, and other law enforcement jurisdictions in Cobb County are stepping up enforcement that will include concentrated patrols and sobriety checkpoints, especially around The Battery. Here are recent posts on Facebook and X (formerly Twitter) to never drive under the influence of alcohol or drugs, and to use a sober driver:

Drinking and driving should never be on the agenda. Call a sober friend, taxi, or ride share to get you home safely. #BuzzedDriving is drunk driving pic.twitter.com/TddnARYPGk

— Georgia Governor’s Office of Highway Safety (@gohsgeorgia) November 30, 2024

Map of Marietta Municipal Court

Marietta Municipal Court is located at 240 Lemon St NE, Marietta, GA 30060.  A map of the location of Marietta Municipal Court is below:

 

Contact our experienced Marietta DUI lawyers today:

If you are facing a Marietta DUI charge or 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.