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  • Writer's pictureJustin Sparks

How to Beat a DUI Less Safe - Is That Even a Concern in Texas?

Many people don't know much about the law until they get into trouble. In fact, DUI laws are so different for each state. For example, a Less Safe DUI is something one might hear, but they can't find much information about it pertaining to Texas rules. That's because it doesn't exist!

In a sense, Texas has stricter laws than other states, but it's still important to understand what a Less Safe DUI is and how it differs from the ones in Texas.

If an arrest was made and the evidence seems significant, it might be wise to contact an attorney. They have a legal understanding of the law and can determine if a person was impaired or if they should never have been arrested.

It's best to contact Sparks Law Firm in Fort Worth, Texas, to request a free consultation before the trial. That way, people can get legal advice to understand how they might beat a DWI. Let's learn about the Less Safe DUI and how it differs now:

What Is a DUI Less Safe?

What Is a DUI Less Safe?

Georgia is the only state that has two DUI violation options. The per se violation is what most people understand and are familiar with. If the driver has a BAC (Blood Alcohol Concentration) of 0.08 percent or higher, they are called per se impaired. A BAC over the limit is enough for a police officer to arrest and convict a driver for a DUI in almost every case. They don't even need evidence that the driver acted impaired or was driving unsafely. However, the police may arrest a driver even without a high BAC level if they are driving less safe because of alcohol consumption.

Under the law, someone makes a less safe DUI violation because they are in actual physical control of a moving vehicle while being under the influence of alcohol or drugs. In a sense, it is to the point that it's less safe for that person to drive.

However, a Less Safe DUI doesn't always mean that the implications are lower or that the prosecutor can't seek the highest punishment available.

Evidence of Less Safe Driving

How does the police department demonstrate probable cause so that it may arrest a person for the less safe DUI? The prosecutor and police try to establish that the driver was under the influence just enough to make it less safe for him or her to drive than if they'd been sober. The evidence shown might include a written report and the officer's observations. These can include:

  • Almost striking an object

  • Driving with the headlights off

  • Slow response to traffic signals

  • Erratic braking

  • Weaving across lanes

After stopping the vehicle for a traffic violation or because of suspicion of drunk driving, the police try to gather evidence that the driver was drinking or was under the influence of drugs or alcohol. That includes the smell of alcohol from the driver, bloodshot eyes, slurred speech, and visual evidence of having alcohol in the car.

Many times, the driver admits to consuming alcohol, further supporting the police officers' case that the driver might have been impaired. From there, the police attempt to get that driver to submit to various field sobriety tests or a field Breathalyzer.

In Georgia, these tests aren't mandatory. Though it seems that the police arrest someone who fails to submit to the test, they can do so even if they feel it might be so. This is called the Less Safe DUI.

Chemical Testing after Arrest

After someone is arrested on a DUI charge, they are taken to the police station to get a chemical alcohol test, which is usually through a blood draw or breath test. Unlike a field breathalyzer test, the laws require that a driver submits to the chemical test after the DUI arrest. If one refuses to submit to the chemical BAC test, their license is automatically suspended for one full year. This is because of the implied consent law in Georgia.

Without evidence of a breath or blood test to prove that the driver was driving under the influence and gets a per se violation (in addition to that one-year license suspension), the prosecutor attempts to get the conviction for the Less Safe DUI. Overall, the prosecutor uses the officer's observations to show that there was less safe driving, even without using the BAC test results.

Penalties for a Less Safe DUI Conviction

A DUI arrest causes one to be formally fingerprinted, photographed, and booked into jail. However, most detainees have the chance to post bail and get released. The amount of the bail bond could be very high or low, depending on the circumstances surrounding the arrest. If there are aggravating factors, such as resisting arrest, evading police, hit-and-run implications, assault on the police officer, or other charges, it might complicate the situation.

How the case is prosecuted depends on additional charges, whether the DUI was a misdemeanor or felony, and whether or not there are prior DUI arrests.

The penalties for DUI cases are dependent on how many prior convictions there are within the last 10 years. The court orders the offender to finish 12 months of probation, which is less the time spent in jail. Probation often suspends part of that jail sentence, but the offender has to serve at least:

  • 15 days for the third offense

  • 72 hours for the second offense

  • 24 hours for a DUI first offense

DUI offenders must get a drug and alcohol evaluation and follow an appropriate treatment plan. Second-time offenders need to complete their DUI drug/alcohol risk reduction program.

The second violation in five years results in the driver surrendering their license plates. With the third violation in five years, their vehicle is forfeited.

Other considerations for a Less Safe DUI conviction include:

  • License suspension - A one-year license suspension is required, but an immediate and limited permit is available for most Georgia drivers. Reinstatement is possible after 120 days. Getting a license back after a DWI in Texas is possible by making an appeal.

  • Community service - For a first offense, one must serve five days of community service or 40 hours. Those on a second DUI offense must do 30 days of community service or 240 hours.

  • Jail - If the driver had a BAC level of 0.08 percent of alcohol in their system, they must serve 24 hours in jail. For the less safe version, they may not have to stay in jail, but this is up to the prosecutor, attorney, and court system.

  • Probation - A less safe DUI requires a 12-month mandatory probation.

  • DUI school - The risk reduction courses are required and last 20 hours.

The Department of Driver Services in Georgia is involved in almost all DUI cases because the implied consent laws operate to revoke or suspend a person from driving based on their driving record if the DUI refusal occurred.

Difference Between a Per Se DUI and DUI Less Safe

Many people don't understand the difference between a per se DUI charge and a less safe DUI charge, but it's crucial to know.

There are two types of DUIs that one might be charged with while in Georgia, and they could be from alcohol, drug intoxicants, and vapors. However, one law might result in the driver's arrest, even if they have a blood-alcohol level of less than 0.08 percent.

When focused on alcohol, the per se DUI involves a driver with an impairment level and a blood alcohol concentration of more than 0.08 percent. However, a less safe DUI includes allegations that the driver had an alcohol or drug impairment level that made it less safe for them to drive. If a driver tests at a blood alcohol level of 0.02, they could be charged with the less safe DUI.

Georgia drivers may face stiff consequences if they are convicted of a DUI. First, the driver accused of DUI (before guilt is established) is arrested and taken to jail. From there, the arrest is included on their permanent arrest record. It doesn't matter if they are convicted of a less safe or per se DUI; the penalties might be the same. With that, car insurance rates are likely to go up, and people may have other ill effects, especially if they're convicted.

Consuming alcohol before driving might result in a conviction and arrest for DUI. Regardless, by hiring a spirited attorney to combat those charges, individuals might show they aren't guilty. There are many nuances and complexities surrounding Georgia law for litigation in a DUI matter. Just because someone is arrested doesn't mean that they are convicted or seriously punished.

Can One Get a DUI Conviction from Using CBD Products?

CBD products are legal to sell and use in Georgia, but the THC content must be under 0.3 percent. If one is stopped on a suspicion of impaired driving, they can be arrested because the police officer thinks they're under the influence of marijuana. If they're arrested, their only defense tool is to get a negative blood test. However, one doesn't have to use marijuana to have THC in their system if they choose other CBD products. Therefore, they are likely found guilty of impaired driving.

30 Day Warnings for DUI Less Safe Charges

The 30-day warning in Georgia requires specific action to prevent losing one's driving privileges. If they were arrested on a DUI less safe charge, the DUI defense lawyer must request an Administrative License Suspension hearing and pay a filing fee within 30 days of that arrest date. If a formal hearing request isn't filed, the person's driver's license may be suspended for up to a year.

Generally, the arresting officer must issue a DDS 1205 form to the arrested person. This serves as the temporary driver's license, advising the arrested party of the impending suspension of the license and what personal rights they have to contest that suspension.

DUI and Prescription Medications

One can be arrested for impaired driving for other things than alcohol. Driving under the influence of any illegal or legal substance could be grounds for arrest or prosecution under Georgia law. Common legal prescription drugs may be cause for the DUI arrest, such as:

  • Ambien

  • Lunesta

  • Sonata

  • Rozerem

  • Xanax

  • Hydrocodone

  • Flexeril

  • Vicodin

  • Oxycontin

  • Darvocet

  • Percocet

  • Percodan

  • Fentanyl

  • Meth

The law assigns criminal liability when driving under the influence of any controlled substance. That includes various hallucinogens, opiates, sleeping aids, pain pills, muscle relaxers, other prescriptions, OTC meds, and illegal drugs.

Marijuana DUI Less Safe

The Georgia law addressing DUI per se indicates that the presence of THC could be a cause for driving under the influence. Georgia says it's unlawful to drive if there's any amount of controlled substance or marijuana present in the driver's urine or blood. Overall, using marijuana may result in an arrest for DUI.

Georgia doesn't provide for any legal recreational use of marijuana. If one is stopped for a DUI suspicion and has a blood test that shows THC traces, the DUI less safe charge is likely filed against them.

Some states allow people to legally use marijuana and drive without issue. However, any traces of THC in the driver's system is an issue while in Georgia. Knowing the law and one's rights is crucial to driving safely without getting in legal trouble.

Possession of a Controlled Substance

Possessing of any controlled substance is a crime within Georgia and Texas. This charge often applies to carrying a prescription drug without putting it in the appropriate pharmaceutical container or not having a label that identifies the person who should legally use the substance.

This law applies to those who carry one pill that isn't in the proper container. If there is a labeled container for the item, it must be on the person at all times. That includes their office, home, car, and anywhere else.

Depending on the type of substance in possession, the crime could be considered a felony or misdemeanor. Georgia law enforcement takes this very seriously because of the many illegal drugs moving from state to state. Always make sure prescribed medication is in the appropriate container with a label and the person's name on it during transport.

There are five categories or schedules of controlled substances. If one is arrested for possession of any controlled substance, the charges must specify the schedule class of what they're accused of having or possessing. The schedules are:

  • Schedule I Drugs - They are the most dangerous and have no medicinal value (Ecstasy, LSD, Heroine).

  • Schedule II Drugs - These are restricted to being used for medical purposes and require an active prescription (Codeine, Meth, Cocaine, Morphine).

  • Schedule III Drugs - These substances require a prescription and could be abused in various ways (Suboxone, Ketamine, Steroids).

  • Schedule IV Drugs - These substances have a medical use with a lower risk for dependency or abuse (Darvocet, Valium, Percocet, Xanax).

  • Schedule V Drugs - These substances require a prescription and could have a potential for abuse (depressants, stimulants).

Unintentional DUIs Are Still a Crime

Even if one is taking their prescribed medication, it's not a reason for driving under the influence. If one must take medication that impairs their ability to operate a motor vehicle, they should find alternative travel methods.

Though everyone understands that drunk driving is wrong and illegal, they may not realize the danger of taking drugs (OTC or prescription medications) and driving. Many OTC or prescription drugs could affect the person's ability to safely drive. It's best to know the effects of the medication on coordination, judgment, and reaction time before getting behind the wheel.

Sometimes called an unintentional DUI, it could still lead to one being arrested and prosecuted to the fullest extent of Georgia law.

How Texas Differs with Its DUI Rules

While Georgia may have special rules for those who "might" be unsafe, Texas has stricter rules in place for drunk driving. People over age 21 cannot be given a DUI charge, but they can still get in trouble for driving under the influence of alcohol. A DWI is the more serious crime.

Both a DUI and DWI refer to the individual operating a motor vehicle in public while intoxicated. This shows that they didn't have their mental or physical faculties about them because of the alcohol or drug. However, DWI is the legal definition of the crime in Texas, while DUI is a commonly interchanged term.

If someone is 21 years or older, they are charged with a DWI if they operate a vehicle while they're legally intoxicated (with a 0.08 blood alcohol concentration).

In this case, it is best to get a free consultation from Sparks Law Firm.

Difference Between a DUI and DWI in Texas

Some people wonder how one might get a DUI. It's often confusing, and lawyers have to provide answers to that. In fact, the only way one can get a DUI is if they have any amount of alcohol in their system and are under 21 years old. This is called the zero-tolerance policy.

The legal age for drinking alcohol is 21 for almost all states. Therefore, if one is under that age, drinks, and gets behind the wheel, it is an automatic DUI. There may still be ways to get out of it with the help of a lawyer, but the prosecutor is well within their rights to go after a person. In fact, the police do not have to do a blood or breath test to prove anything because alcohol was present in any amount.

Still, most law enforcement personnel choose to do the blood or breath test to give evidence showing that the person committed a crime.

Overall, the only officially legal use of "DUI" is for people under 21 with any alcohol in their system. The zero-tolerance policy indicates that it doesn't matter if the minor was impaired because of the alcohol in their system. It's illegal for them to drive with a detectable amount of alcohol. Generally, though, someone over 21 years of age must have a BAC level of 0.08 or higher to be charged with a DWI.

A DWI is charged using the Texas Penal Code, so it's a serious offense. Penalties can range from prison time to heavy fines. First-time offenders often have a $2,000 fine, jail from three to 180 days, lose their license for a year, and must pay annual fees for the next three years to keep their driver's license afterward.

Minors charged with a DUI often receive a $500 fine, a 60-day suspension of the driver's license, mandatory alcohol awareness classes, and 20-40 hours of community service.

It's often best to obtain legal advice from lawyers. Request a free consultation from Sparks Law Firm to determine what options are available.

Top Ways a DUI Lawyer Can Get One out of a DWI

Top Ways a DUI Lawyer Can Get One out of a DWI

DUI lawyers are the only hope to get one out of a DWI conviction. It's often harder for individuals to do it alone because the prosecutor knows that they want to get their charges reduced or beaten. Please call Sparks Law Firm for a free consultation today. Here are the many ways that a lawyer might get one out of a DWI charge:

Breathalyzer Test Inaccuracies or Errors

The most common BAC test is the DUI Breathalyzer test, but it doesn't measure the blood alcohol level directly. Instead, it measures the breath alcohol and multiplies that by the partition ratio to estimate the breath test results. Breathalyzers assume the ratio of alcohol in the exhaled breath to the alcohol in the blood using a 1:2100 ratio.

However, actual ratios for tested individuals can range from 1:1300 or 1:3000, depending on body weight, sex, body temperature, breathing patterns, and the red blood cell ratio.

Several issues may cause a false positive result:

  • Improper calibration, usage, or maintenance by the police

  • Margin of error for the device

  • Physical differences for drivers that affect partition ratios

  • Auto-brewery syndrome

Even if a BAC test is executed perfectly, experts claim that chemical testing is a better choice because the error rate is between 0.05 to 0.02 percent.

Therefore, a DUI attorney can fight flawless test results that range from 0.08 to 0.10 percent because of the 0.02 percent margin of error. It's best to contact Sparks Law Firm for a free consultation today to get assistance.

Ketosis from Diabetes or Atkins-style Diets

Conditions like hypoglycemia and diabetes can trigger Ketosis, as can low-carb diets. Ketosis is the normal metabolic process that triggers in the body when there aren't enough carbohydrates from food for the cells to burn energy.

Without enough carbs, the body burns fat cells and produces ketones. If one has diabetes, it's a sign that they don't have enough insulin.

What do ketones have to do with the DUI charge? If ketones are eliminated from the body through urine and breath, they turn into alcohol. Mouth alcohol causes breath test instruments to read higher BAC levels that are inaccurate.

No Probable Cause for the DUI Stop

Police DUI stops have to be supported by probable cause or reasonable suspicion. Traffic stops are only a temporary detention by the police and are considered a seizure with the 4th Amendment.

For a DWI stop, the most common reasons police give drivers are speeding, running a stoplight, or exhibiting driving impairment patterns.

However, if the officer doesn't have a reason for the stop, a DUI lawyer can file a motion that suppresses the evidence, excluding what was found in the illegal search. Overall, it's best to request a free consultation from a lawyer to determine one's rights and options to defend themselves.

Rising Blood Alcohol Concentration

A rising blood alcohol defense might apply if the BAC level was below the legal limit when driving but rose above the blood alcohol limit when the police performed the BAC test.

Alcohol takes between 45 minutes and three hours after drinking to get absorbed in the body. That delay causes the rising BAC levels while one waits. The peak BAC time after drinking is based on various factors.

How can one prove that the BAC was below the limit at the time of the BAC test?

This type of defense requires a toxicology expert to examine the results of the test to create evidence showing that the driver was under the legal limit while driving, but the BAC numbers rose while they waited to get booked.

Typically, this defense is effective when:

  • One was nearing their destination when stopped, so it couldn't have been a DWI.

  • They didn't exhibit clear signs of intoxication, such as slurred speech, swerving, or traffic violations.

  • The tested BAC level was close to the limit but not at or over it.

  • There was a delay between getting pulled over and administering the BAC test.

Auto-brewery Syndrome or Gut Fermentation

Auto-brewery syndrome is actually a rare condition where alcohol gets produced in the person's digestive system, even if they don't drink. Sometimes, it can be intoxicating amounts.

The condition is often linked to diets with refined foods or high carbohydrate amounts. They may also have overused antibiotic drugs in the past. Bacteria and yeast in the intestinal tract convert carbs and sugar into alcohol, which is similar to beer's fermentation process.

One isn't born with the syndrome. However, medical conditions like diabetes, Crohn's disease, or short-bowel syndrome might trigger it. Generally, one can beat a DUI conviction if they have this condition.

However, one must submit to recognized testing to get the DUI dismissed.

Inaccurate DUI Blood Test

Blood testing for alcohol has to follow strict protocols to enforce accuracy; there are many ways that blood tests provide inaccurate results.

For example, blood samples might sit for days before they're analyzed. Blood is organic and decomposes because of bacterial action and enzymes. Decomposition may create alcohol inside the blood.

Even if no alcohol is present, blood samples may generate BAC test results of .25 or more if fermentation has occurred. This happens when the technician doesn't refrigerate the sample or adds the wrong amount of the preservative.

Blood tests done by law enforcement are presumed by the court to be accurate, so the defense must prove they aren't in DUI cases. One way to do that is to file the blood split motion, retesting the blood to learn how it was stored and how the test was conducted.

Common factors that taint blood results include:

  • Contamination of the sample

  • Fermentation of the sample

  • Improper storage of the sample

If errors are found, the DUI defense attorney must fight to have those results excluded from the evidence. Suppressing evidence may win a DUI case because valid proof of a 0.08 BAC is necessary for a DWI conviction in Texas.

Inaccurate Field Sobriety Test

Three standardized field sobriety test options have data verifying their accuracy levels:

  • Walk and Turn - 68 percent accurate

  • One-leg Stand - 65 percent accurate

  • Horizontal Gaze Nystagmus - 77 percent accurate

However, the results are often not administered properly or under ideal conditions. Therefore, those who take a field sobriety test may attest that they're hard to pass when sober and even more challenging to do in the middle of the night when fearful of going to jail. A good lawyer may get DUI charges dropped if the client failed the test and can prove there was a reason for the innocent failure, such as:

  • Clothing or shoes that interfere with the test

  • Poor balance or vertigo

  • Uneven surface conditions or bad lighting

  • Police intimidation or nerves

  • Poor coordination and non-athleticism

No Proof of Driving Under the Influence

One key element necessary to prove someone was driving under the influence is that the prosecutor must prove they were actually driving.

A person must be in a moving vehicle and have actual physical control of it. If someone is sitting in a parked car or sleeping, this is not considered proof of driving while intoxicated.

Police Report Errors or Police Officer Misconduct

Police misconduct could cause the charges to be dismissed or to have evidence thrown out of court because police procedures weren't properly followed, regardless of how the person was driving.

It's easier for a lawyer to fight DUI charges like this because they have access to the reports and can determine there was missing information or inaccuracies. Sometimes, they may notice illegally obtained, fabricated, or manipulated evidence.

Mouth Alcohol

Studies show that Breathalyzers can't accurately distinguish readings of ethanol from methyl chemical compounds in one's mouth. Therefore, DUI Breathalyzer test results could capture the "alveolar air" from deep within the lungs. Mouth alcohol can also be found, but it's not created by drinking alcohol. The test results here are an issue because this device may show false positives when there's no or little ethanol in the body.

A DUI case could be thrown out if the person used NyQuil, cough drops, Vicks Formula 44, or Anbesol. Other reasons include:

  • Regurgitating or burping

  • Alcohol-soaked food caught in one's dental work

  • Oral herbal tinctures and breath sprays

  • Asthma inhaler (Albuterol ingredient)

Medical Conditions (GERD, etc.)

The best DUI breath tests can be susceptible to a false reading from various medical conditions. They create mouth alcohol because the acid moves from the stomach to the mouth. These include:

  • Heartburn

  • Acid reflux

  • Hiatal hernia

  • Gastroesophageal Reflux Disease or GERD

Improper Sobriety Checkpoint

Some believe that sobriety checkpoints violate probable cause protections and are unconstitutional. However, the Supreme Court ruled that they are legal and similar to airport screenings, so they're exempt from the probable cause requirement in the 4th Amendment.

While police officers don't require probable cause to stop people at sobriety checkpoints, they're subjected to strict legal requirements, such as:

  • Police should take adequate safety precautions.

  • The checkpoint has to be in a reasonable spot.

  • Police must detain drivers for a small amount of time.

  • Supervising police officers have to make operational decisions.

  • The checkpoint needs to display signage to make the official nature clear.

  • The duration and time of the checkpoint must show "good judgment."

  • Police must publicly advertise the roadblock location beforehand.

  • The criteria for stopping all drivers must be neutral.

If the police don't meet those requirements, a DUI lawyer in Fort Worth TX could challenge any resulting arrest for DWI.

Innocent Reasons for Having DUI Symptoms

Police officers testify that people exhibited physical symptoms or signs of drinking, such as an unsteady gait, slurred speech, or red eyes. However, those physical signs could have an innocent explanation that doesn't mean the person was driving under the influence, including:

  • Slurred speech - Stress from the police or fatigue

  • Watery or red eyes - Allergy symptoms

  • Unsteady gait - Physical injury

  • Alcohol odor on the breath - Oral medication or illness

  • Flushed facial skin - Rosacea or sunburn

An innocent explanation could create reasonable doubt about the physical symptoms and signs.

Disconnect between Actual Impairment and BAC Levels

Defendants often exhibit no or little impairment, but the tests show high BAC levels. When that disconnect happens, it's a red flag that the false positive is wrong. DUI defense attorneys often use that disconnect to challenge the evidence, introducing reasonable doubt about one critical element necessary to prove guilt.

Radio Frequency Interference

Breath test devices use electrochemical and electromagnetic technology to detect the alcohol on a person's breath. They are sensitive devices and are subject to RFI (Radio Frequency Interference) or EMI (Electromagnetic Interference), which causes them to show erroneously high levels.

Devices that could cause reading errors include:

  • Security cameras

  • Cell phones

  • Police radar units

  • Microwaves

  • FM/AM radios

  • Police radios

Prosecutors quickly point out that the Breathalyzer could have an RFI detector, which refutes the presence of RFI. However, independent experts have tested those detectors and shown they're inaccurate and that the RFI detectors can't see them all.

No Mental Impairment

Police officers often claim defendants exhibited the physical symptoms of being intoxicated. However, DUI laws define physical and mental impairment. Experts have shown that impairment from drug or alcohol consumption always appears as mental first.

Therefore, if the police testify that one exhibited physical impairment with no mental issues, DUI defense lawyers may refute that accusation.

Involuntary Intoxication

If someone admitted to the DUI, that doesn't mean the DUI case is over. The defendant could have been drugged by someone without knowing it. For example, a person is at a party, and someone spiked the punch-bowl without them knowing. They got drunk but didn't realize they had drank anything. However, this defense only works if the person didn't voluntarily take alcohol the entire night.

Video Evidence Doesn't Add Up

A lawyer can fight DUI charges when one admits to a DWI if they were pulled over and had high BAC results. They could be accurate. However, Texas police often wear body cams or have dash cams. In that case, the person on the video should be stumbling and slurring their words. However, instead of acting like the sloppy mess they should be, they're respectful, sitting quietly, and acting sober.

Overall, things don't add up between the two, and that can be a great defense for the lawyers on the team.

Why It's Crucial to Contact a Lawyer

In Texas, it's not easy to beat a DUI or DWI. However, that doesn't mean it's impossible. In many cases, the DUI lawyers on the team can find a red flag where the offender doesn't. Sometimes, they were not over the legal alcohol limit at all. Regardless of the reasons, it's crucial to build a DUI defense that stands the test of time. That way, one can get their DUI charges reduced in court. On the other hand, if you want to know what happens if you plead not guilty to a DUI, you will need a lawyer to guide you.

Sparks Law Firm is in Fort Worth, Texas, and has taken many DUI cases to court. The lawyers dispute the evidence, demand a fair trial, and offer appropriate legal advice to their clients.

Whether one was driving a commercial vehicle or their own doesn't matter. However, it's crucial to get the assistance necessary to beat such a claim. The fight to drop the DWI charge isn't easy, and it could be a long road for the lawyer and the client. However, it all starts with requesting a free consultation from Sparks Law Firm today!


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