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Twenty Common Misconceptions about Georgia DUI Law

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Researching about your DUI charge on the internet can lead you to many misconceptions. Without the guidance of a skilled attorney to help navigate you through every step of your case, you could be missing steps and defenses to resolve your case.

My office receives many calls from people that have been doing research on the internet. Online research lacks context and the experience of a qualified lawyer who knows the local rules and customs of the court system. These misconceptions can mislead a person to make poor judgments about their case, some of which can lead to irreversible outcomes. Although the internet has many great resources, no website should ever take the place of legal advice from a skilled attorney.

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1. DUIs Come Off Your Record After 7 Years:

This is completely false. A DUI in Georgia is a misdemeanor traffic offense and stays on your permanent Georgia Criminal history for life. Petty traffic citations such as speeding or running red lights unrelated to DUIs only go on your Motor Vehicle Report through Driver Services and for the purpose of insurance and points, come off after seven years. A DUI conviction remains on your criminal history forever.

2. A DUI Can be Expunged:

There are only two instances where a DUI in Georgia can be restricted from your criminal history. First, you took your case to a trial either by a jury or a judge, and they found you not guilty of all offenses, including any related offenses, such as failure to maintain lane. The second way to have your record restricted is if the State completely dismissed all your charges. Many people mistakenly believe that if their charges were reduced to a reckless driving, that this constitutes a dismissal and are therefore eligible for record restriction. This is false. The charges must be entirely dismissed, not just reduced.

3. Georgia Offers Pretrial Diversion or First Offender Plea for First-Time DUI Offenders:

Pretrial Diversion Programs, commonly referred to as conditional discharges, are excellent programs that allow a defendant charged with an offense to have their case dismissed. The dismissal must be earned and usually involves attending counseling, payment of a fine, completion of community service, and sometimes a period of probation. Usually these programs are for people charged with minor traffic offenses, shoplifting, possession of marijuana, and underage possession of alcohol.

Although these programs are a great opportunity for many people, a DUI in Georgia is not eligible for Pretrial Diversion or Conditional Discharge. Additionally, many people think that they can use a First Offender Plea for a first DUI offense. DUI is specifically restricted by the statute allowing First Offender Pleas.

4. There is Not Much An Attorney Can Do If I Have Taken a Breath Test and Tested Above the Legal Limit:

I have heard this theory many times. A skilled attorney is trained in every possible DUI Defense that may be used on your behalf in court. A skilled attorney will begin by challenging whether you voluntarily submitted to a breath test, the equipment used to conduct the test and the validity of the reason for the stop (articulable suspicion). In addition, there are many other defenses an attorney can look into to help you fight your case, even if you took a breathalyzer and tested above the legal limit.

Furthermore, even if a breath result is unable to be excluded from evidence, an attorney is able to negotiate a better plea offer than a lay person representing themselves in court.

5. If I Complete Community Service and DUI School Before Court, The Prosecutor Will Dismiss My DUI Case:

Although many times completing these things before going to court is helpful, they do not warrant a dismissal of your charges. These things do not negate the fact that you may still be guilty of the charges, but they do show you have taken things seriously on your part and may be helpful in obtaining a reduction of your charges. Every case is different, and the decision to reduce your charges is solely up to the prosecutor. If reduced, the case will not be completely dismissed. The more likely outcome would be a reduction to reckless driving.

6. Having Political Connections Such as Knowing a Judge, a Mayor or Another Police Officer Can Help Have My Charges Reduced or Dismissed:

I hear this misconception on a regular basis. Many people believe that if they are involved in the community and know the mayor or other city council members, that these people will hold enough influence to have your charges reduced or dismissed. The truth is, DUI carries a social stigma. Because of this, many times a Judge friend or Mayor friend of yours will not want to "put their name" on your DUI. Furthermore, having a friend intercede on your behalf puts them in an uncomfortable position that may cause you to lose a friend. Many times, it is best to leave your "political connections" out of your DUI case.

7. If I Hire an Attorney, My DUI is Guaranteed to Be Dismissed or Reduced to Reckless Driving:

Although this theory may be true in other countries around the world, it is far from true here in the United States. Hiring an attorney is essential for your DUI charges, but does not guarantee a particular outcome in your case. The decision to reduce your charges is up to the sole discretion of the prosecutor. The prosecutor is a human just like you and me, and they cannot be forced to change their mind if they have decided not to offer you a reduction of your charges. That being said, many times you may have a much better chance of a reduction of your charges with an attorney than you have if you represented yourself on your charges. Never believe an attorney that promises you a particular outcome.

8. The Court Cannot Hold a DUI Against You if it Occurred More Than 10 Years Ago:

The 10-year rule is very often misunderstood. In Georgia, there are mandatory increases in punishments associated with the number of DUIs a person has within a 10-year period. However, there has never been anything that prevents a court from holding any prior offense against a criminal defendant. Each court views prior convictions differently.

9. The Outcome of Case Can be Changed at a Later Date:

People who have already resolved their case call my office frequently. Very often they are facing consequences for things they did years ago. The problem is that there is very little if anything a qualified attorney can do after a case is resolved. The time to get a good outcome is while the case is still pending.

10. The Officer Said I Could Drive Until My Court Date:

When a person is charged with a DUI in Georgia, they only have 30 days to file their appeal. Otherwise, their license will be suspended. Many police officers dishonestly tell arrestees that they can drive on the DDS-1205 Form until their court date, which is very often months away. The DDS-1205 Form is a 30-day driver's permit. If you flip over the DDS-1205 Form it very clearly says you only have 30 business days to file an appeal. Otherwise, a person's license will be suspended. In the event of a refusal, the suspension is for 12 months.

11. You Must Attend Your Initial Arraignment:

Most courts will allow your attorney to handle many of the court appearances. Ultimately, you will have to attend court, however, my job is minimize your inconveniences as much as possible. It does not violate your bond if you have your attorney handle the initial arraignment. When your attorney appears for you, it is as if you appeared yourself.

12. The State Will Not See Out-of-State Arrests and Convictions:

When the prosecutor runs a GCIC Report on you (Georgia Crime Information Center), it only shows Georgia arrests. Sometimes our clients get lucky, and nothing further is discovered. However, if the prosecutor looks carefully, there will be a code that indicates a "multi-state offender." This will cause an astute prosecutor to run a national criminal history (NCIC).

13. The Police Officer Was Out of His Jurisdiction, and as a Result, the Arrest is Unlawful:

Unless otherwise noted in the authorizing documents for a police department, most police officers can pull over someone outside of the city or county in which they are employed. Some university police departments have limited jurisdiction, but those are exceptions to the general rule. All deputy sheriffs have statewide arrest powers. That being said, it is the custom of most police officers to stop a suspected drunk driver and then turn that person over to the local police when they arrive.

14. The DUI Laws are Essentially the Same Throughout the United States:

In fact, Georgia DUI laws are very different from the laws of other states. The State of Georgia has been ranked as the second toughest state in which a person can be charged with a DUI. The ranking methodology was based on both punishment and driver's license consequences.

15. The Judge Decides the Outcome of the Case:

This is only partially correct. If a person elects to have a bench trial, (a trial by judge only) the judge will decide both guilt or innocence and any consequences therein. However, most DUI cases are either settled by negotiation or tried by a jury. In a negotiated plea, the judge is not part of the plea-bargaining process. The judge can either accept or reject the agreement. If the judge changes the agreement, a criminal defendant has a right to withdraw their plea. In a jury trial, the judge makes legal rulings and acts as an impartial referee. The judge would, however, decide punishment in the event of a conviction.

16. I Was Not Read My Miranda Rights, and So My Case Will be Dismissed:

Miranda is a case that explains a person's right against self-incrimination as guaranteed by the 5th Amendment to the United States Constitution. If the police are not trying to elicit a confession from you, those rights generally do not apply. For the most part, Miranda Rights do not apply in a DUI case.

17. Your License Automatically Reinstates After a Suspension:

No. You must take active steps to reinstate your Georgia Driver's License. Otherwise, it will remain suspended indefinitely.

18. I Cannot Afford an Attorney:

Most law offices have different attorneys at varying price points. Some will offer payment plans as well. You will likely be able to afford to hire an attorney you can afford.

19. I am Entitled to a Free Lawyer:

All persons have the right to hire the attorney of their choice. However, a person is only entitled to a court-appointed attorney or public defender if they meet the State and local indigent guidelines.

20. An Arrest Means You Are Guilty:

Nothing could be further from the truth. No one who is arrested in the United States is assumed guilty. In fact, everyone enjoys the presumption of innocence.

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About the Law & Your Rights

The criminal justice system protects us by arresting and jailing criminals. Yet not everyone who is arrested is a bad guy. Someday, you, a family member, or a close friend may be accused of committing a crime and be arrested. This information provides an overview of the rights of those who have been arrested and explains how your lawyer can help protect your rights.

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Arrested by Law Enforcement Officers

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In an arrest, a law enforcement agent, such as a police officer, a sheriff, or a state trooper constrains your freedom of movement because of your possible involvement in a criminal offense. In some cases, the arresting officer may take you into custody; in others, you may be stopped, verbally or physically, so that you can be questioned about a crime.

An arrest warrant is a written order by a judge directing the police to arrest the person named in the warrant. If a warrant for your arrest has been issued, the police may arrest you in your home or in a public place. At the time of your arrest, the officers making the arrest should tell you that they have a warrant and show it to you.

The police can also arrest you without a warrant if they have reason to believe that you have committed a felony, such as robbery, murder, or drug offenses. If you are arrested without a warrant for a felony or misdemeanor, you are entitled to a prompt hearing to determine whether the officer has the minimum level of evidence required for a legal arrest.

Resisting Arrest

The police may use reasonable force necessary to arrest you, but they are not permitted to use excessive force or brutality. Even if you are innocent, you should not resist arrest. Besides risking injury to yourself, you may be charged with the crime of resisting arrest. If you resist a citizen’s arrest, you might be charged with assault and battery. Even if you are eventually found innocent of the original charges, the arrest is not illegal if it conformed to the requirements of the law.

Search

Ordinarily, the police must have a search warrant before conducting a search. However, after you have been arrested, the police may search you and the immediate area around you without a warrant if they reasonably suspect that you may be armed. A search is also permitted when the police see contraband at the time of making an arrest. If the police find something that is a crime to possess, such as a gun or drugs, they may take it and arrest you for possessing it. The police may also take your money and property from you to keep in a safe place until it can be returned to you or used as evidence. If possible, try to verify that all the items taken from you are inventoried on a written list.

Getting Legal Assistance

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You are entitled to telephone a lawyer, a friend, or a family member to notify them of your arrest. You have the right to consult with a lawyer and have him or her present when the police question you. The best practice is to remain silent until your lawyer is present since any statements that you make can be used as evidence against you. If you cannot afford to hire an attorney, you are entitled to a court-appointed lawyer. Depending on local procedures, the court may appoint a private attorney, a lawyer from a legal aid society or a public defender. The police are required to notify you of these rights before they question you. Ordinarily, they are recited during the confusion of the arrest. Remember them. They may become critical to your defense later on.

Even if you declined a lawyer at the time of arrest, you retain the right to have a lawyer at any time after being arrested. You should seek the advice of a lawyer at the earliest possible time to avoid incriminating yourself to get released from custody, to decide how to plead, and to prepare yourself for your trial.

If you are called by a family member or friend who has been arrested, remind them that they have a right to a lawyer and they do not have to respond to police questioning until the lawyer is present. If a lawyer has been engaged, the person who has been arrested should let the police know that they can claim the right to counsel and that a lawyer is on the way.

Being Taken Into Custody

After you have been arrested, you may be taken into custody and brought to a detention facility. At the detention facility, your arrest will be registered into police records and you may be fingerprinted and photographed. After you have been taken into custody, you or your lawyer can make arrangements for your release while you are waiting for your trial.

You may be asked to participate in a lineup. This is a procedure in which several people, including one or more suspects, are shown to victims or witnesses of a crime to see if they can identify the one who committed it. If you are asked to participate in a lineup, you have a right to have your attorney present.

If you are confined in a detention facility, it may be several hours to a couple of days before you appear before a judge who can consider releasing you. Do your best to stay calm and do not discuss the circumstances of the alleged crime with others. Any statements you make may be reported to the police and used against you.

If you are accused of a less serious crime, such as a minor traffic violation, the police may ask you to sign a citation instead of taking you into custody. If you sign the citation, you are promising to appear in court, but you are not admitting guilt. If you have no identification or refuse to sign the citation, the police may take you into custody.

Getting Released from Custody

After the arrest, you will be brought before a judge to be formally charged with a crime and provided an opportunity to be released while awaiting a trial. If you appear in court without a lawyer, the judge must allow you a reasonable time to find one before your trial. To decide whether to grant bail, the judge will consider various factors such as your family ties, financial resources, employment record, and the seriousness of the crime you have been charged with.

Being Detained

You can be detained without being arrested if the police suspect that you are engaging in a criminal activity or that you might be armed. For example, the police may ask you to identify yourself and conduct a limited search for weapons if they observe you pacing in front of a closed store in the dark. Or a store owner or employee might detain you for a reasonable time for questioning if they have a strong reason to believe that you have stolen or attempted to steal something.

Conclusion

For people who have never before faced criminal charges, an arrest can be a frightening experience. The stress of the arrest may cause you, your family members, or friends to overlook important matters, such as the right to remain silent and the right to advice from a lawyer. If you are arrested, you should consult a lawyer as soon as possible in order to protect your rights and defend yourself against charges made against you. He or she can also negotiate on your behalf with the police and the prosecution and advise you of the risks and advantages of cooperating with the authorities. Your lawyer can also help you with the bail process. If you cannot afford to hire a lawyer, you may ask the judge to appoint a court-paid lawyer for you.

Above all, do your best to stay calm. An arrest is not a conviction. You really are innocent until proven guilty.

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Georgia Point System For Suspension of Drivers' Licenses

The state of Georgia has specific rules for deducting points from drivers’ licenses after traffic violation. After a certain number of points are taken off your driver’s record, your license may be suspended, and our lawyers can help you fight against suspension or get your license back.

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