Frye Law - April 2019

THE Defender

APRIL 2019

770-919-9525 • FRYELAWGROUP.COM

THE MEANING OF ‘RELENTLESS DEFENSE’

NEW GEORGIA DUI DECISION WILL HAVE A HUGE IMPACT ON CASES

When I started my defense firm 10 years ago, I decided to make my mission statement powerful but simple: relentless defense . To me, relentless defense means working aggressively on behalf of the criminally accused, exhausting every possible avenue when a challenge arises, and bringing to bear all possible resources to provide unflagging advocacy for clients. In short, relentless defense means putting up a strong fight no matter the opponent in front of you. Relentless defense is also certainly a descriptor I would use for my good friend and fellow defense attorney, Greg Willis. That was precisely his approach to a DUI case he took against the State of Georgia that ultimately altered a major portion of the state’s DUI law. As a result, a driver’s refusal to take a Breathalyzer test can no longer be used against them in a criminal court. To those outside the legal arena, this change might not seem all that dramatic, but in reality, it’s an enormous change for every person in the state. It all started in August 2015, when an officer with the Athens-Clarke County Police pulled over a female driver after allegedly observing that she failed to maintain a lane, that she followed too closely, and that she disregarded a traffic control device. The officer, purportedly smelling booze and seeing signs of impairment, arrested her and read her the state’s “implied consent notice,” which states: “Georgia state law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license … will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.”

In the end, the justices found that using a driver’s refusal to submit to a breath test against them at trial violates the state’s constitutional protections against self- incrimination. They also reaffirmed a 2017 previous decision that said a breath test is an act which is protected by the Georgia constitutional provision prohibiting self-incrimination. Under the new ruling, if a driver refuses a breath test, the arresting officer will instead need to obtain a warrant to take blood or urine tests, either performed by hospital employees or medical workers at a jail, depending on the county. Additionally, the verbiage in the implied consent notice must now be revised. I’ve kept every refusal case in my docket pending while this case was in the Supreme Court. Now that the ruling has gone into effect, many of my clients will experience a dramatic influence on their individual cases. Additionally, I plan on contacting any past clients who entered a plea over the last 12 months to see if we can petition the court. Overall, this is a big change, but it was one we were expecting and hoping for. It underscores why it’s necessary for attorneys to follow in Greg Willis’ footsteps and put up a strong fight in any case, but especially DUI cases. Laws change, as does the legal landscape. We all play a vital role in making that happen.

“It underscores why it’s necessary for attorneys to follow in Greg Willis’ footsteps and put up a strong fight in any case, but especially DUI cases.”

The driver refused the Breathalyzer test and was arrested. That’s when Greg Willis, her attorney — practicing relentless defense — refused to give up on her case and challenged existing law. His argument hinged on the decision of a previous ruling in 2017, which said that drivers can’t be forced to submit to breath tests because, in doing so, they are being forced to potentially incriminate themselves, a ruling which reiterated the rights listed in the state of Georgia’s constitution regarding self- incrimination (Article I, Section I, Paragraph XVI).

–Kim Keheley Frye

770-919-9525 • 1

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