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Atlanta DUI Second Offense Felony Charge Dismissed

By: William C. Head, DUI Attorney Atlanta

Sometimes, quick action in hiring the best DUI lawyer can win a seemingly impossible driving under the influence case, which is the predicate offense for a felony DUI. Experience is the major difference between the DUI attorneys (in any state) who are the best DUI lawyer, versus other lawyers who are good DUI lawyers. This short case history will demonstrate the importance of hiring a criminal lawyer with the highest level of legal analysis of Georgia DUI laws when fighting a 2nd DUI in GA and a felony charge.

Like many people charged with drunk driving, the client asked “Is DUI a felony?”

The day after his arrest, a potential client facing criminal charges, received traffic tickets for second offense DUI, hit and run, and a serious injury by vehicle. In a rain storm at about midnight, he had struck and seriously injured a pedestrian in the Buckhead district of Atlanta. The next day, the accused drunk driver came to Atlanta DUI lawyer Bubba Head for legal counsel. He was distraught and wanted to know if a DUI is a felony when it has been filed in a misdemeanor DUI court. The Client was hoping that, somehow, he was going to dodge having to defend himself on a felony DUI charge.

2nd Dui Charge Reduced to Reckless

DUI attorney William Head explained the DUI defense issues in the case, and wanted to immediately file a statutory speedy trial demand, as authorized by OCGA 17-7-170, on behalf of his client, to the two types of DUI he had been charged with, plus hit and run. Eventually, some prosecutors would learn of the serious injury felony charge and bind the criminal case over to Fulton County Superior Court. The Client and his wife paid the retainer, to entrust criminal defense attorney Bubba Head to find an answer to this troubling case.

The current arrest was also a City of Atlanta Traffic Court case, and the Client’s new case was booked into this Court. As soon as Atlanta criminal defense attorney William Head saw the traffic ticket for serious bodily injury under OCGA 40-6-394, he realized that an error (in which the court was handling this case) existed. The DUI lawyer knew that with serious injury circumstances, PLUS a DUI charge, the case was erroneously filed at this Fulton County traffic court, by the arresting officer, in the City Court of Atlanta.

The criminal charges should have been taken to Fulton Superior Court, the exclusive court in Fulton County GA for handling any traffic ticket case involving a felony charge. Client’s two DUI alcohol charges both less safe DUI alcohol and per se DUI (or being over the legal alcohol limit) and the hit and run are misdemeanors. However, the serious injury felony, based on DUI, should have pushed this case over to the Superior Court of Fulton County.

The officer who handled the case should have contacted a Prosecutor, for direction on how to handle this serious injury-by-vehicle case. Instead, he wrote out the tickets and filed them with the Atlanta Police Department. The Client was taken to the Atlanta Detention Center on Peachtree Street, after the arrest.

Serious Injury by Vehicle Suddenly Becomes Vehicular Homicide

On the morning after the Client met with and hired criminal attorney William Head, the Atlanta DUI attorney personally went to the Atlanta criminal court, and filed a statutory speedy trial demand, under OCGA 17-7-170. This special type of speedy trial demand, a trial by jury, must be timely honored by the Prosecutor. Failing that, the criminal charges for which Mr. Head had filed the statutory speedy trial demand must be dismissed.

The same day, but later in the afternoon, Mr. Head was called by the Client. The seriously injured pedestrian had died. So, a bad situation became worse, since a DUI-related death called for prison time of 3 to 15 years if the Client ultimately was convicted. The demand for a speedy trial had been filed, which put the burden on the Solicitor of Atlanta Traffic Court to meet the “two terms of Court” deadline.

The clock was ticking. Would someone at the Atlanta criminal court realize that the case needed to be bound over immediately or not? The Atlanta attorney could not control that decision, but had utilized the best of all available DUI defense strategies for this case.

Felony Vehicular Homicide in Georgia

On all the traffic tickets issued by police to the Client, except the felony charge of serious injury, DUI attorney Head filed a statutory demand for speedy jury trial, which means that jury trial had to occur “within two terms” of court. In Atlanta City Court, monthly terms of court existed. In Fulton Superior Court, the terms of court were two-month terms, and these were six per year, and were January-February (as the first term of each year), then the following sequence until the year was over.

The Atlanta DUI lawyer had won more than 40 other criminal cases prior to this case, using statutory speedy trial demands, and knew all of the intricacies of this special statute.

To document the record of proper filing, Mr. Head obtained copies of the Atlanta Traffic Court Clerk’s Office stamped filed speedy trial demand, and he also served the copies on the Atlanta Solicitor’s Office and got a time-stamped receipt for this delivery to the Atlanta prosecutor. This critical evidence would be needed later to prove timely filing, and service of process, under the Georgia statutory speedy trial law.

The DUI defense lawyer and the client begin a long wait…

City of Atlanta Police Department Seal

City of Atlanta Police Department Seal

This Client, who had graduated with a Master’s degree from Georgia Tech, had a prior DUI in Georgia, and that Atlanta traffic court conviction was within the prior five years. Both he and his wife were well-paid engineers.

The client’s DUI attorney for his first DUI offense in Atlanta traffic court did not fight the case and had advised him to plead guilty. So, this new, more serious, 2nd offense DUI now placed him in dire trouble, since (as a repeat offender) he was exposed to being sent to State prison for up to 15 years if convicted of serious injury and driving while intoxicated.

Eventually, Atlanta Municipal Court prosecutors turned the case over to the Superior Court of Fulton County.

However, because Mr. Head had timely filed a Motion for Discharge and Acquittal on February 7th, and no transfer was made until October 7th, Mr. Head was confident that the trial tactic was going to help win the criminal case for Client, based on the prosecutors’ failure to accommodate the statutory speedy jury trial request. By his estimation, the State only had until the end of April to have given Client his speedy trial.

Felony Indictment for Vehicular Homicide and Multiple Misdemeanors

Once the case was indicted, for first-degree vehicular homicide (felony) and multiple other misdemeanor charges, DUI defense attorney William Head responded by filing numerous suppression motions, plus a Motion for Discharge and Acquittal. The case was scheduled for a motion hearing. On the date of that hearing, the assigned judge was not on the bench. A visiting senior Superior Court judge, from Clayton County, was presiding.

This judge was not known for being friendly to criminal defendants, since he had been the District Attorney, before being elected a Superior Court Judge.

The assistant District Attorney of Fulton County GA Superior Court argued that the speedy trial demand was not effective, because “it was not filed in the proper court (Superior Court if Fulton County, GA), and (2) that his constitutional rights were not violated.” The Judge sided with the assistant DA.

DUI defense lawyer Bubba Head immediately appealed this incorrect ruling to the Georgia Court of Appeals. The client was very concerned that this ruling had not ended the case. William Head was confident that the Judge was wrong.

The Georgia Court of Appeals agreed with Mr. Head. Part of that 2005 decision held

[A]ny person indicted for a noncapital offense may enter a demand for trial during the court term when the indictment was filed or during the next regular court term. If the person is not tried when the demand is made or during the next regular court term, provided that juries were impaneled and qualified for trial during both court terms, then the person shall be absolutely discharged and acquitted of the offense charged in the indictment.

The statute further provides that “[t]he demand shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant. Implicit in the wording of this statute is that such a motion is applicable only in courts which have terms and impanel juries.”

It’s not over until it’s over – A final DUI defense motion wins the case…

This appellate court ruling eliminated all but one of Mr. Head’s client’s felony charges. That meant that additional legal battles were still ahead.

Mr. Head next filed a new motion with the Fulton County Superior Court to stop further prosecution of the Client, based on a legal rule called “collateral estoppel.” The motion pointed out that since both underlying misdemeanors, for which the remaining felony count was “predicated upon” had been discharged and acquitted, the State was “estopped” from trying to resuscitate the felony vehicular homicide indictment.

The Fulton Superior Court judge, Tom Campbell, agreed and granted Mr. Head’s motion, thereby dismissing all remaining criminal charges against the client. The Client walked away a freeman, thanks to trusting his criminal defense attorney Atlanta to find a way out of a potential lifetime mistake.

In his 40-year career, DUI lawyer Atlanta Bubba Head has filed more than 200 appeals on behalf of clients facing criminal charges. This includes over 50 from Atlanta Traffic Court, Fulton Superior Court, Fulton County State Court, DeKalb Superior Court, and DeKalb County State Court.

Call 42-year veteran Atlanta DUI attorney Bubba Head today and get honest answers to all your questions. Tell us everything that happened and everything you remember about your DUI arrest. The sooner you call us, the better chance we have to win your DUI case and get your charges reduced or dismissed.

Remember, you only have 30 DAYS to file a license suspension appeal or apply for an ignition interlock device, or your driver’s license will be suspended for up to one year! Talk to Bubba Head, Larry Kohn, or Cory Yager now. We are available 24 hours a day, weekends, and all major holidays. (404) 567-5515

Other valuable insights on this website:

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Is a Dui a Criminal Offense
Dui a Felony
Is a Dui a Felony

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