Will they look at the FST video at the hearing? Do the arresting cops normally show up? I blew a .095 and believe the officer did not read my implied consent, but a good amount of time has passed and a lot was going on, and I’m not sure how to find out for sure if the implied consent was read to me. But I truly believe it was not read after they cuffed me. Are there any other ways to win an ALS hearing?
The judge will probably not look at the video at the hearing. The cops usually show up in Gwinnett County. There are many ways to "win" an ALS hearing, but they are also useful in planning defense of the case. Your attorney can capture the officer's testimony under oath for use later on. If the officer did not read the implied consent warning, he or she will have to admit this at the license hearing. Not every arrest is on video, unfortunately. If you haven't already hired an attorney, you ought to have one before this hearing.
I do not know if you have an attorney, but almost all people benefit from having an attorney when charged with a DUI. It’s just smart to make sure that you suffer the bare minimum results, even if you have to plead guilty.
With an ALS hearing, if (as in your case) the basis for the potential suspension is an unlawful blood alcohol level (as opposed to a refusal), the results of the hearing are often not that great. Why? Because if you go to the DUI school, you can get your license almost immediately reinstated, even if suspended.
In addition, if you agree to eventually enter a guilty plea, the arresting officer will generally agree to withdraw the request for an administrative suspension.
Can you win? First, the officer may not show up and you win that way. Second, you can show that the officer lacked sufficient cause to pull you over. That is another way. Third, you can show that the officer lacked sufficient reason to believe you were DUI. And, finally, as you point out, there may have been a problem with the implied consent process or the instrument.
It is absolutely possible to win an ALS hearing in Georgia. However, even if you lose the hearing (if this is a first offense, and you took the State-administered test, and you do not have a prior mandatory suspension offense such as hit and run, racing, etc.), then you will qualify for a restricted permit immediately with full reinstatement after 30 days. So, having the hearing itself is a win for you. Much can be learned when you have an opportunity to question a non-represented police officer. There is no prosecutor representing the police officer unless it’s a Georgia State Patrol Officer. There may also be a video that will show that implied consent was not read. Yes, your attorney can play that video at the ALS hearing. You need to hire an attorney to handle your case.
Attorney at Law
ALS hearings are a long shot, but as most DUI attorneys will tell you, they are well worth doing. Depending on where you are, some officers are more likely to attend ALS than others. The fact that the media has taken notice of the low attendance rate of officers in Atlanta probably means that there will be more of them showing up now. Gwinnett officers are generally diligent about appearing, but even the best of them sometimes have situations in which they can't appear and their suspensions get revoked.
Even if your officer does appear, there is an opportunity for your attorney to discuss the case with the officer off the record and try to reach an agreement on the suspension and the case itself. Prosecutors aren't bound by any agreement between the officer and the attorney, but it goes a long way with them to hear that an officer has agreed that a plea to Reckless Driving is more appropriate in a given case than a DUI.
Failing all of that, the ALS hearing is an opportunity to get the officer on the stand, under oath, usually without a prosecutor present. Your attorney will get to cross examine the officer and try to get him to admit to issues with the case under oath. The attorney then will get a copy of the transcript and can use that at a later motion hearing or trial.
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