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Kill shots

This term means anything that if believed by the judge or the jury will cause you to lose your case. Kill shots should be identified and dealt with at the earliest possible moment. Identifying how you are going to lose the case is a hard thing for a lawyer to do. Nevertheless, one of the most important things we have learned from losing is that we must identify and confront the negatives in our cases, and we must do it early on. If there is a "kill shot" buried in your case (and there always is) and you do not know how to rebut it, all the preparation in the world is not going to do any good. You are going to lose. Every fact thrown up by the Government is not a kill shot. By identifying kill shots you can eliminate the need to spend a lot of time on ancillary issues. A judge or jury will disregard evidence because of the three I's (irrelevant, incomplete or incorrect) Evidence that is vulnerable to attack as incomplete, incorrect or irrelevant should be confronted head on. Our job in

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CHECK LIST: FACT ISSUES FOR REASONABLE DOUBT TOPICS

RECOLLECTION MOTIVE REACTION TIME D.L. INSURANCE REQUEST OPEN CONTAINER PULL OVER LOCATION ODOR APPEARANCE EXIT FIELD SOBRIETY ARREST DECISION SPEECH BALANCE COORDINATION MENTAL ABILITY ATTITUDE TEST RESULTS PRIOR HISTORY AFFIRMATIVE DEFENSES

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CHECK LIST: EVIDENTIARY ADMISSIBILITY TOPICS

"OPERATION" OF A MOTOR VEHICLE SPEEDING FOUNDATION ROADBLOCKS REASONABLE ARTICULABLE SUSPICION PROBABLE CAUSE AUTOMOBILE SEARCH ACCUSED'S STATEMENT CUSTODY TEST ADMISSIBILITY ADMINISTRATIVE PROCEDURES ACT DRIVING WITHIN THREE HOURS UNDER ARREST FOR O.C.G.A. ? 40-6-391 OFFENSE IMPLIED CONSENT HEARSAY REFUSAL BUSINESS RECORDS EXCEPTION RIGHT TO PRIVACY CONSTITUTIONAL CHALLENGES DISCOVERY

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JURY CHARGE

At the administrative license hearing we should be concerned with jury instructions. The general less safe instruction contains the following paragraph: In deciding this issue, you may consider anything in the evidence you find relevant in deciding whether defendant was capable of safely driving. Specifically, as to consumption of alcohol you may consider, among other factors, the smell or lack of smell of alcoholic beverages on defendant's breath and/or person and whether any test indicated the presence of alcohol in defendant's system. As to whether the defendant was incapable of safely driving, you may consider the factors you deem relevant, including, but not limited to, the actual manner of driving the motor vehicle; the defendant's control of his mental and/or physical abilities; the physical condition of defendant; and any expert testimony. Merely showing that defendant had been drinking or that there was the smell of alcohol on defendant's breath or person, without proof

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CONCLUSION

The administrative license hearing is very informal and non-threatening (generally no one goes to jail). There rarely exists a reason to not go forward and memorialize certain facts. A transcript of the hearing will often assist in negotiations if the evidence is favorable.