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Defense

Innocent UNLESS proven guilty

Jason Cerbone · August 21, 2012 ·

Jason Cerbone best DUI lawyer in Georgia

In the Chatham County courthouse in Savannah, Georgia for a DUI trial I looked at my potential jurors and then to Kat and back to the jurors and began.

In a minute I am going to ask you if you think Kat is probably guilty of DUI.

Some of you are afraid that you will give the wrong answer. Some of you think that he represents Kat. He does not want to hear that many of us think Kat is guilty. I know people are supposed to be innocent unless proven guilty. Even though I think it is likely that Kat is guilty, I probably better not raise my hand. Is there anyone here who is not having those kind of thoughts?

It’s OK to tell me if you think Kat is guilty. It’s normal. When we see a girl led away in handcuffs on the news, our first thought is not “I bet that girl is innocent.”

The only wrong answer you can give is an answer that is not true. Even white lies are not allowed in court. Now something you say may mean that you are not the right person to be on this jury. That does not mean you gave a bad answer. It probably means you gave a good, truthful answer.

When you hear about some celebrity being arrested for drunk driving, is there anyone here whose first thought is, “I bet that person is innocent.”

So…how many of you think Kat is probably guilty?

How many of you think Kat should get a fair trial?

You see the problem? Just because a police officer has arrested Kat, we think she is guilty. How can Kat get a fair trial if the jury starts out thinking she is guilty?

In America, our founding fathers were pretty smart people. Here is the answer they came up with to fix this problem.

  • Juries must start out biased in favor of the accused citizen. they have to treat the citizen accused as innocent unless she is proven guilty.
  • Juries cannot assume guilt in any way. The government has the burden to prove its case.
  • The proof must be so strong that a reasonable person cannot doubt it.
  • The citizen accused does not have to testify.

Some of you may think this sounds too technical. You may think, I am just going to use my common sense rather than follow these legal technicalities. Think about what that means. Common sense tells us that Kat is guilty from the start. Think of the celebrity being taken off in handcuffs. If you just go with common sense and do not require proof you are really saying that I am going to assume Kat is guilty rather than follow the law. We all agreed that this is not fair.

Presumption of Innocence

Earlier you told the District Attorney that you would be fair to both sides. Did you mean that you would treat both sides equal and not prefer one side to the other?

When we someone on the news being led away in handcuffs, or hear of the celebrity arrested for drunk driving, we don’t think: There goes an  innocent person. Common sense tells us that person is probably guilty. We think that most people arrested for drunk driving are probably guilty. Does anyone disagree?

Matching Kat against the State of Georgia is not a fair fight from the start.

  • The government can afford to pay lawyers to fight as long as it takes. They can make sure their lawyers are well trained for prosecuting DUI’s.
  • If they need an investigator to help prepare the DUI case or testify, they can afford it.
  • If they need to talk to a DUI expert, they have the money.
  • They can afford DUI tests and machines that Kat doesn’t have access to.
  • They can double-team Kat with DUI police officers if they want to. They can put two police officers on the case so that it is two against one for prosecution testimony versus the defense.
  • They can double team the lawyer with lawyers if they want.
  • They can afford to go to the legislature to lobby and have the DUI laws changed in their favor.

Who is stronger here? Kat? Or Georgia? Is it even a close contest? Does anyone think it is a fair fight?

From the minute someone is charged with DUI, common sense tells us that the person has a motive to lie. If the person says something that makes them sound not guilty, we are suspicious that she is making it up to get off. Does anybody disagree?

So we all agree that someone who has been charged with DUI has a motive to lie. On the other hand, the DUI police officer that arrested her normally does not have a motive to lie. Anybody disagree?

So, if Kat denies her guilt or tries to explain, we are going to be suspicious of her but not of the DUI cop who testifies against her. Anyone disagree?

So we start out thinking Kat is guilty and we do not believe her when she says she is not. How can anyone get a fair trial when we start out like that? Do you have any ideas?

Now in our everyday lives we think that if we were accused of something we did not do, we would just explain and people would believe us because we are honest people. Right?

What if you had to explain this to strangers in Savannah who do not know you and do not know you are honest?

Do you think the strangers would be suspicious of you because you would have a motive to lie?

Even if you brought in your friends to tell the jury that you are an honest person, they will be suspicious of your friends because they will think that they may be shading their testimony to help a friend. Even if you are honest, do you think a group of strangers will believe it?

So the government double-teams you with police. They double-team you with lawyers. They place you in a position where people are suspicious of anything you say or do and anything your friends say or do. They shove you in a position where most people think you are guilty from the beginning. They have almost unlimited funds and resources to prosecute you, but you have limited funds. Then you are expected to show you are innocent. Even Jesus did not do well when he was put on trial. My client is not rich. She is not Jesus. What hope is there for Kat to get a fair trial? Do any of you see a way?

Now, Kat does the best she can. But she is not in the same league as the State of Georgia. Matching her against the State of Georgia is truly David vs. Goliath. But, without the slingshot. It is a heavyweight in a boxing match against a twelve year old. That is not a fair fight. The government starts off with overwhelming advantages. Treating both sides the same is no more fair than treating the heavyweight and the twelve year old the same. Do you disagree?

If you go back and just ask yourselves which side is correct, that is not a fair question. The deck is stacked against Kat from the start. To get your vote, you are asking the twelve year old to beat the heavyweight. So what are you going to do?

Smarter people than I realized that treating the State of Georgia the same as Kat did not equal a fair fight. Experience has taught us over the years that if you do not build some protections into the system, you are going to end up convicting innocent people. To protect against this, some safeguards have been built into the law.

The government has given David a slingshot. It still may not be a fair fight, but it is better than before.

You Know the law’s fix. Kat is innocent unless proven guilty. It’s only fair to make it harder for the District Attorney to prove its case. Treating both sides equally in a mismatched contest isn’t fair. The law says you must start out biased in favor of Kat and you cannot change unless you are given the strongest proof known to the law.

Will you take back your answer to the District Attorney?

Will you tell him that you will not treat both sides equally? Will you tell him that you will start out on Kat’s side and that you will not change your mind UNLESS you are given the strongest proof known to the law.

The presumption of innocence is needed if there is to be a fair trial.

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Tips to Avoid DUI on Saint Patrick’s Day

Jason Cerbone · March 17, 2012 ·

  1. Don’t drink and drive if you are impaired.  Don’t drive anything, even golf carts.
  2. NEVER admit that you drank any alcohol.
  3. Never perform field sobriety tests.
  4. Never blow into a portable breath test device.
  5. Be quiet.  Don’t blurt out anything to the cop to try and explain yourself because it will be used against you in court.
  6. Have your license and other documents in hand and offer these to the cop.
  7. Never sit behind the wheel if you are drunk.  Don’t even sit in the front seat of a car if you are intoxicated.
  8. Blend in with traffic because this makes it harder for the police to detect you than if you are the lone driver.
  9. Don’t be a good Samaritan on the way home because random acts of kindness bring the police around a lot.
  10. Stay in your car unless told to get out by the cop.
  11. Sleep in the back seat if you must.  Turn off the ignition and put the keys in your pocket.  Make sure the car is off the highway.
  12. Breath tests can be wrong when you have recently been around volatile fumes, like lacquer, paint, gasoline, or dry cleaning fluids. Always get a second independent test.
  13. Use the driver’s rights cards because it speaks for you to the Savannah Police.
  14. Eat well.
  15. Don’t argue with the officer. Give him your documents and say nothing except to respond to his questions.
  16. If you are in an accident, after having drank, don’t talk to anyone at the scene about anything. Never take any field sobriety tests. If anyone was hurt or killed, refuse all tests.
  17. Try to record the conversations between you and the cops because the officer’s missing or defective warnings can cause test results to be excluded from evidence.
  18. Find a skilled DUI attorney who knows the ropes. You want a DUI trial specialist because he can beat the DUI or he can probably work you a better plea deal.
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How High is Drunk?

Jason Cerbone · March 7, 2012 ·

What’s the legal limit for DUI?

How much can you have before you are under the influence and DUI less safe in Savannah?  It depends.  It depends on how much time you drink.  Are you a man or woman? How big are you?  Did you drink on an empty stomach?

It is not against the law to have a drink and drive.  Rather, you break the law if you have too many drinks and drive. That’s the law in Chatham County.  If you are an adult you may drive after you drank as long as you are not “under the influence of alcohol.”  What does that mean?  Lawrence Taylor, the Dean of DUI Defense attorneys says that two glasses of wine will not put you under the influence of alcohol or over the legal limit of .08.  See his blog post, The DUI Exception to the Constitution.  But then Mr. Taylor has another better blog post with a chart, How many drinks can I have?  A Florida DUI lawyer says the two drink rule is no good.  See his blog post, Florida DUI Attorneys Discuss Why The Two Drink Rule Is Not Correct.  But, then why have you heard of people who got a DUI and they had only two drinks?  Because DUI is an opinion.  If you don’t take the breath test or a blood test, then your liberty depends on the police officer’s opinion of your sobriety.  Is this fair, accurate, and reliable?

Prepare for Jury Trial

I pledge allegiance to prepare every one of my DUI cases in Savannah, Georgia like it’s headed straight to a jury trial.  I am open to a good plea-bargain, if the deal means no DUI for you.  If you walk in to plead out, you’ll never get a good deal because the district attorney knows you aren’t going to do anything about it anyway.

The DUI Police Report

But, the police report looks bad, you say.  Until trial the police report is irrelevant.  It doesn’t matter what it says,  the way is to not get scared and put them to the test — go to trial no matter how bad the report seems.  This is the only way.  There is no bulletproof police report.  All reports can be overcome.  All cop’s opinions can be defeated.  Now, I make no guarantees.  But, there are no foolproof reports.  And most of the time, the police report is good for making the officer look like a moron at trial.  The Police report is useless to everyone until we have the officer on the stand and can embarrass him.  I’m always working on this.  So I do it well.  I do it to slam your DUI.  I know this sounds like bragging, but you have to have confidence to be a champion and that is the only thing I ever wished to be.

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Secret to Winning DUI Cases

Jason Cerbone · December 12, 2011 ·

Secret to Winning DUI CasesAttitude

I know I will win. My client feels that, and the jury, and the judge, and the prosecutor. The difference between a lawyer who wins DUI cases and one who loses is attitude. Henry Ford said it best, “Whether you think you can or you think you can’t, you’re right.”   My attitude is that I am a good DUI lawyer.  I’m prepared.  I know my stuff.  I’ve read the cases.  I’ve read the file.  I’ve interviewed the witnesses.  I’m on top of this case.  I know it better than the prosecutor.  I have confidence.  The most important thing: Stick to the goal — I want to win the case.

Never plead guilty to DUI.

Recently, I met a lawyer who pleads about 50 cases a year, and he’s methodical about them. He maybe tries one of twenty. I am not pleased with lawyers who take a case to plead it, regardless of what kind of chance they’ve got to win the case.

Never plead guilty to DUI. Ever. If that’s what you want, you can get another attorney to do it for a lot less money than you’re going to pay me. I will not take on a DUI case unless I believe I’m trying it down the road. I hold strong to my philosophy and I’m not taking a case knowing that I will not try it. I am not about to ruin my reputation by having somebody come in and after a month of fighting decide “Oh I want to plead guilty.” That does me no good. People will hear I’m pleading guilty to things. I’d rather do quality work. An American deserves his day in court.

Preparation

Preparation makes the difference. I come prepared. I am thorough. I file many motions, study lab regulations, challenge field sobriety and BAC tests, bring an expert, and even appeal when my client’s rights have been shot.   I must be better prepared.  I go to court with knowledge of the file, knowledge of the law, knowledge of the facts, and knowledge of the defenses.  If I’m not better prepared than my opponent, I could lose.  The odds in a DUI case are stacked against you by the legislation.  This is one reason I will not overload myself with DUI cases, because I know what it takes for me to do a good job.   I turn down far many more cases than I take.  Far many more.  I could make a lot more money if I wanted a volume DUI practice.  But, I’d rather hold to my rule that I’m not taking a DUI case knowing that I’ll never try it.  And, I only take a certain number of cases a year, because it’s physically impossible to be on trial that much.

A lot of cases look unwinnable at first. Most cases look this way. But the number of cases that are unwinnable is little. I step back. I stay away from it a few days. I come back. I get creative. I ask myself, “What thing have I missed?” I ask my colleagues. I look hard.  Whenever you take a chemical test, breath, blood, etc., bring in an expert to challenge the result. If you’re headed to trial, I almost always go for a jury trial.  Most DUI cases are not dismissed before trial. But, I spend a lot of time trying to do so. The first thing I look for in a file is “Is there some way I can avoid trial?” Maybe you can talk about sloppy police procedure and get the case dismissed. But, this is not easy to do.  The State of Georgia has many opportunities to mess up. But, I’ll only catch it when I explore every one. This takes time and commitment.

Knowledge

I keep my knowledge of DUI law and science up-to-the-minute. I know my subject cold. This gives me the winning confidence. DUI’s are winnable.  But, they are hard.  DUI is a political crime. Jurors have a much different mind set toward DUI. I am a lot different than just a criminal lawyer. I read just about every DUI publication in the country, and attend about every DUI seminar.  I am trying to get a reputation with the prosecutors and with the courts and with other lawyers as being a good, sound, prepared, and professional DUI lawyer.

Thorough initial interview

I block off two hours for the initial interview.  I want no interruptions, no phone calls, or anything.  I want the client to know that while he or she is here, this is extremely serious.  I take the time to really go through an in-depth interview.  Most people come in with a negative attitude.  They think they can’t win.  Then I begin telling them how can the case may be approached and what kinds of defenses are there. No DUI case is an open and shut loser. This way you can come in for an interview and then decide if the fee is something you can come up with.

I listen.  I try and pick up on how you present your story.  What kind of a witness will you make?  I’m sizing you up.  Are we going to get along?  Am I comfortable with you?  Are you comfortable with me?  Are you telling the truth?  These are the initial impressions I’m feeling out. Do you feel good about yourself?  Want to fight the case?  Do you feel you’ve been wronged?  Do you think you have a defense? And if you do believe these things, how serious are you?  Because once we get going here, I’m committed to winning.  If you think this is not something that you want to make an investment in, it’s best you go to another DUI lawyer.

Jason Cerbone won my DUI jury trial. I had two police lying to cover each other. It was a great deal to overcome. They would not produce any films that would prove my case. Mr. Cerbone had cast doubt on their testimony with nothing to work with. By showing their errors and lack of facts he was able to do so, much to my benefit. — Joseph

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Why I Fight DUI

Jason Cerbone · October 27, 2011 ·

Working - Jason Cerbone, Savannah DUI lawyer rolling golf ball on road - Cerbone DUI Defense

Better class of people.  At least they’ve got a car.  They are hard, fun, and anybody can get one.  DUI’s are different.  This is because there is much more law on DUI.  DUI law changes fast.  Very fast.  Stay tuned for a big change coming to Georgia with the Intoxilyzer 5000 source code. Enormous.

DUI is biology, chemistry, science. The science is false. The machine doesn’t work. The science is on our side. And the prosecutor’s in Savannah, Georgia are going to have to square with that. Soon. The prosecutor’s so-called expert witnesses are advocates, not scientists. There ex-police agents with new titles, like “area supervisor.” The Intoxilyzer 5000 (the DUI breath test used in Savannah, Georgia) is accurate only because the legislature says so. The evidence they need to find you guilty in a DUI case isn’t even forensic. The State doesn’t need a forensic expert to testify to the jury that their breath estimator was reliable and accurate. Rather, the prosecutor only needs to show the you that a machine makes the sample and spits it out. Is this fair, accurate, reliable? Where does the hospital keep their breath machine? They don’t use one. Why do doctors use blood testing? Because they need accuracy. And reliability. Whose choice was it to use a breath sample? Ever taken a prescription pain medicine? Did it last four to six hours? Not a full day? Scientifically, you know that most pain medications can be detected in you the next day? Not alcohol.

Inside Intoxilyzer 5000 Breath Alcohol Test Machine, Savannah, Georgia - Cerbone DUI Defense

Ain’t good enough for Alabama…

The Intoxilyzer 5000 DUI breath testing device ain’t good enough for Alabama, Mississippi, South Carolina, Florida, and many more states. Sweden quit using it over 15 years ago because it’s bad, old science. Most states don’t use it. But, Georgia still uses it to convict people.

CMI, the manufacturer out of Owensboro, Kentucky now only makes the 8000 series. They will not make new parts for the 5000 machines. The design of Georgia’s instrument is over 25 years old. The computer was built and last updated in 1985. Ever owned a boat with an outboard motor? How about a lawn mower? Did it ever fail to start? Ever heard of a space shuttle exploding?

Interfering substances are not subtracted from your sample.

Filters are made to detect and subtract out interfering substances. But, GBI made the manufacturer set up a different software protocol for the Georgia Intoxilyzer 5000. This is important because if the machine is not sniffing out interferrents perfectly then your breath sample can be falsely high. But, since Georgia has chosen to not use easily available software to capture data from the machine, interfering substances will always go undetected.

No paper trail

Almost every state in the U.S.A. uses a breath machine that leaves a paper trail for you to challenge your sample. Not Georgia. Our breath test samples leave nothing. But, you are always allowed to challenge a breathalyzer’s sample. This is where I come in. Challenge. Attack. Challenge. Show me. Challenge.

DUI Exception to the Constitution

Many constitutional protections that you and I have are not there for DUI.  Instead, there are DUI exceptions to the constitution.  For example, the crime of “Failure to maintain lane” includes driving and weaving within your own lane.  The law says this is a good stop.  Roadblocks are the falsest thing out there. But, the law says it’s all good.  Unlike every other crime, you’ve got no right to an attorney until you are arrested, processed, and booked.  Make sense?  No?  That’s the point.  To make it “O.K.,” the court’s have gone and carved out what Lawrence Taylor has quoted as the ‘DUI Exception to the Constitution.”

You are required to give evidence against yourself when you get arrested for DUI in Savannah, Georgia.  This is ridiculous. In some states it’s a separate crime to refuse a DUI test. It’s coming to Georgia.  In Arizona the cops are authorized to do a forced blood withdrawal.

There’s a presumption of guilt in DUI cases because the law says if there’s a test result, we’ll let the jury “infer” guilt.  And most people think if you drink and drive, you’re guilty.  You understand it’s not against the law to drink? And drive? Rather, it’s against the law to have too many drinks and drive.  What’s the first thing a waitress says to you after “Hello?” — “Do you want a drink?”

You can tell the truth in DUI cases. This is good. The bible says “the truth shall set you free.” So it will. I’m just bringing you the truth. I like that.

Double jeopardy is here for DUI, even though the Constitution says you and I are free from double jeopardy.  You’ve got two fights in a DUI case.  First, your administrative license suspension battle.  Second, your criminal DUI case. How can this be?  Because there’s a DUI exception to the Constitution of the United States of America — that’s how.

Criminal intent or state of mind is never an issue.  So think of it as a strict liability crime.  Do this and that’s it.  We don’t care why.

Well, that’s my dish.  I must shove off.

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Cerbone 
300 Drayton ST FL 3
Savannah, Georgia 31401
jason@cerbonelaw.com
+1-912-236-0595

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