Lounge Legal Dept.: Hines Ward Gets Busted for DUI

Jeremy Clark is an attorney and a Steelers fan. He also runs the Lounge Legal Department which needs to be called on due to Hines Ward’s recent trouble in Georgia. Take it away, Jeremy…

As I’m sure most of you have heard by now Hines Ward was the winner of the first Steelers player to get arrested this summer contest. While I am usually not surprised when athletes get in trouble, this was a bit of a shock. I guess he just struck me as smarter than your average NFL player. Oh well.

I’m sure you’re not reading this for my player insights, that’s why we have Ryan, JJ, Adam, and Ted. So here is my initial analysis of the Georgia DUI laws.

First, like a typical lawyer, I need to lead off with a disclaimer: I am not licensed to practice law in the state of Georgia, nor do I typically practice criminal law in Pennsylvania. I have been trained to read laws and explain them to people (and have the student loans to prove it) so that’s all I am doing here.

Under the Georgia DUI statute (O.C.G.A. § 40-6-391) it would appear that Hines is probably not in too much legal trouble. PR trouble is another matter. While all the media sources I have read state that this was a “drunken driving charge,” the Georgia law that seems to apply is concerned with “Driving under the influence of alcohol, drugs, or other intoxicating substances….” So it is possible that Hines was doing more than throwing back some brews, but let’s just assume that he didn’t go Santonio on us and that he was in fact drunk.

In Georgia, a person is driving drunk when their blood alcohol level is over a 0.08%. First and second offenses are misdemeanors, the third is an aggravated misdemeanor, while the fourth and any more (really, are you that stupid?) are felonies. In determining the number of offenses, Georgia has a “look back period” of 10 years (the same as Pennsylvania). I don’t remember hearing about two other DUIs with Hines so I think we are safe to assume this will be a misdemeanor.

The penalties for a misdemeanor DUI are: (1) a fine between $300 and $1000; (2) 10 days to 12 months in prison; (3) 40 hours of community service; (4) attendance at a DUI avoidance program; (5) substance abuse evaluation and, if recommended by evaluators, treatment, and finally (6) probation for up to 12 months (total incarceration and probation time not to exceed 12 months).

As an added wrinkle the Judge may waive the jail time. If the person had a blood alcohol concentration of 0.08% or higher he must serve a minimum of 24 hours in jail. Otherwise, the entire jail term may be waived by the Judge and is entirely at his or her discretion.

So, with that last caveat it would seem that Hines will likely spend a day in jail (maybe he could ask some Ravens or Bengals players for packing tips) pay some fines, pick up trash or do an infomercial for the state of Georgia then be on his way. The only real concern here is the probation requirement.

For those 12 months he had better be a total boyscout as a probation violation gets you in trouble very fast.

Let’s hope this is the last big Steelers news until we are addressing free agents once the lockout is over.

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  • Anonymous

    Does it matter how much over the limit he was and do we know?

    • Anonymous

      Not that I can see from the statute. I would guess that is where the pretty large discretion of the Judge comes into play. Ten days to a year in prison is lots of leeway to decide how bad someone was being. I haven’t heard what his BAC was, obviously that could make a big difference in his punishment (if convicted).

  • Legal Eagle

    I hope he goes to prison and REALLY becomes a receiver.

  • New Eric

    Thanks for the legal analysis.  I’m curious–I don’t read anything about him losing his license for any period of time.  I thought that was pretty standard in DUI cases. 

    • Anonymous

      It usually is. In GA, from what I can make out, it does seem like there is an administrative process through their DMV where you lose your license but there also seems to be ways to appeal that. I’m not too worried about that as I assume he can afford a driver…and maybe if he finds one he won’t get in this mess next time!

  • SteelerBill

    So what’s the thinking on refusing the breathalyzer yet failing the field sobriety test? 

    • Steve

      I recall a well-known and much sought-after attorney in Boston -J Albert Johnson- describing the breathalyzer as “a phony and a fraud”. That’s hyperbole from someone who makes his living getting the guilty out of trouble. The idea, though, is that, if the penalty for refusing the breathalyzer is small enough that doing so significantly increases the chance of creating reasonable doubt, it’s worth refusing. More to the point, your attorney will have an easier time casting doubt on a cop’s judgment on the field sobriety test than he will with a number produced by a tried-and-true device, J Al’s opinions notwithstanding.

      Of course, you need to think all of this through at a time of high stress, when you’re…um…(potentially) impaired, and you’re concerned about whether the cop that stopped you is wearing an Ed Reed jersey over his Kevlar. Which is why J Al’s advice is to never, EVER take the breathalyzer.

      I’d love to get Lounge Legal’s take on this.

      • Anonymous

        “… the penalty for refusing the breathalyzer …”

        I don’t think there can be any penalty for refusing to take a breathalyzer. The state isn’t allowed to compel you to bear witness against yourself. They can ask you to, but they can’t compel you, and penalizing for not complying is compulsion. That being said, they certainly don’t need the test to convict a person. Most drunk driving statutes are based on being impaired not on measuring some specific alcohol level.

        • Sgandt

          In Massachusetts, the penalty for refusing the breathalyzer – if you are later convicted or plead, I understand- is a 180 day license suspension for a first offense, which is added to any suspension resulting from a conviction. Importantly, refusal can’t be held against you at trial, though you’re gambling with the possibility of a longer suspension if you lose.

          Which takes me back to my original point: If you’re willing to risk a longer suspension for the sake of giving the authorities less to work with in their case against you, refusal is the way to go. Otherwise, if there’s a good chance you’ll be convicted, and you’re looking to minimize your suspension period, refusal might not be the best option.

          Here’s where Lounge Legal could weigh in with more state-specific analysis of the breathalyzer compliance / refusal question.

          • Sgandt

            Damn the double post. Could the moderator Prisuta me by deleting one?

          • Anonymous

            Sorry all for falling off the radar on this one for a bit…that pesky real job is getting in the way of my important Lounge Legal work.  GA, like many states including PA, has a statute stating that a person operating a vehicle consents to various tests of their BAC.  States are allowed to do this because driving a license are privileges and not a rights.   Therefore, some of the more rigorous privacy and 4th and 5th amendment protections do not apply (this is a extremely condensed explanation). 

            This being the case, refusing a such a test often results in an administrative suspension of your driving privileges (you can typically appeal such a suspension in a “real” court but you usually lose).  This would be similar to losing your license for driving without insurance – it’s not a crime but is a rule for the privilege of driving.  Since these are not crimes but administrative proceedings the procedural process is different and often “convictions” are much easier to obtain. 

            I have heard various strategies some defense lawyers recommend if you think you might be in trouble for a DUI, from refusing the tests, to the even more reprehensible leaving the scene going home and drinking like a fish so you can say you got drunk AFTER the accident because you were so stressed out (and we wonder why people hate lawyers?). 

            As for strategy in defending a GA DUI charge, we are now well out of my area of expertise and anything I said on this would be pure speculation.  I can only assume that Hines can afford a very good attorney and so he will get a very thorough defense (or maybe just a favorable plea bargain).

        • Sgandt

          In Massachusetts, the penalty for refusing the breathalyzer – if you are later convicted or plead, I understand- is a 180 day license suspension for a first offense, which is added to any suspension resulting from a conviction. Importantly, refusal can’t be held against you at trial, though you’re gambling with the possibility of a longer suspension if you lose.

          Which takes me back to my original point: If you’re willing to risk a longer suspension for the sake of giving the authorities less to work with in their case against you, refusal is the way to go. Otherwise, if there’s a good chance you’ll be convicted, and you’re looking to minimize your suspension period, refusal might not be the best option.

          Here’s where Lounge Legal could weigh in with more state-specific analysis of the breathalyzer compliance / refusal question.

          • Anonymous

            Interestingly I just had a read of the decision in the Supreme Court case South Dakota v. Neville, which decided this issue. They ruled a few things, one was the reasonable conclusion that the fact that a test was refused is itself admissible evidence. The other is mindbogglingly off target. They ruled that “Such a penalty for refusing to take a blood-alcohol test is unquestionably legitimate, assuming appropriate procedural protections.”

            You don’t need a weather man to know which way the wind blows, and you don’t need a legal scholar to know that such an “unquestionably legitimate” penalty is prohibited by the plain language of the 5th ammendment. So while the courts have decided that such penalties are allowable, they are wrong. Such penalties are illegal. That fact, of course, doesn’t prevent the powerful from infringing the rights of the weak.

            It seems that the right strategy as for pretty much any non-trivial case where you find yourself a potential defendant is to request counsel immediately. Of course this is coming from someone who’s never been drunk at any point in his life.

          • GlennW

            I may not have the legal specifics exactly correct, but I believe that the “automatic suspension of driver’s license” for refusing to take a breathalyzer test is typically an administrative action per the DMV, and not a criminal penalty– where contrary to the prior opinion, a conviction on the DUI charge in criminal court is not necessarily a requirement for license suspension by the DMV.  That administrative/criminal distinction may be a legal technicality, but that’s how the state is legally able to impose such a penalty.  Just one of the pre-existing rules one agrees to for obtaining and retaining a driver’s license (defined as a privilege and not a right) in the first place– similar to the requirement in most states to show proof of auto insurance, or to demonstrate adequate “rehabilitation” in the case of a prior DUI conviction.  The DMV can (apparently) legally hold a suspended license indefinitely, long after all criminal obligations are met.  Or even refuse to issue one at all under some circumstances (such as for a prior conviction for narcotics or underage alcohol possession).  In any case, I’m not one to say that the Supreme Court is definitively wrong in its decision on the legality of such rules around the driving privilege (not right), again assuming “appropriate procedural protections”.

            With that said, any decent defense attorney will tell you not to submit to a breathalyzer test if there’s a fair chance that you’re going to fail it, or even to offer a statement that you’ve only had “two or three drinks”, as Hines Ward apparently did.  Such a statement only gives a police officer probable cause to detain you, as well as providing the prosecution with evidence to be used against you.

  • http://drunkdrivinglaws.info George

    The main thing is he is punished for breaking the law.