Fundamental Rights in Georgia DUI Cases

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In the United States, when someone is charged with a crime, they have certain fundamental rights that are guaranteed by the United States Constitution. These rights are granted to each person charged in the criminal justice system, whether they are charged with theft, DUI, or homicide.

The Right to be Free from Unreasonable Search and Seizure

You have the right to be free from unreasonable search and seizure. This covers the following areas:

  • Stops
  • Searches
  • Seizures and
  • Warrants

When police overstep their bounds, a defense attorney can demand a pretrial hearing to request the judge suppress the evidence.


You have the right to be free from unreasonable stops of your person. This means, for example, you have the right to drive your car on public roadways without being stopped by police –- unless they have a reasonable, articulable suspicion of criminal activity. In other words, police can pull you over if you are speeding, weaving over the center line, or drive through a stop sign without stopping. They cannot, however, pull you over, for example, because

  • they don't like the bumper stickers on your car
  • you are driving a particular make and model, or
  • you happen to be driving at 2:30 in the morning.


You have the right to be free from unreasonable searches of your person and your property.

For example, if the police stop you for speeding, and give you a speeding ticket, absent additional information, the police cannot ask you to get out of your car so they can pat search you, looking for evidence of criminal activity. Additionally, they cannot, after giving you your ticket, search your car without your permission, absent additional information.


“Seizure,” in this context, refers to a governmental taking. In other words, you have the right to be free from a government agent, such as police, taking your property, or seizing your person, without probable cause. They cannot simply take possession of your car, your cell phone, or even you, without a legal basis to do so.


There are basically two kinds of warrants for the purposes of this discussion: search warrants and arrest warrants.

Search warrants allow police to search an identified location for specific, identified items. Imagine a search warrant that allows police to search your property for a car that left the scene of an accident. Police could look in your garage, your outbuildings, and your property. They could not, however, search the cupboards or desk drawers inside your home, as a car would not reasonably be expected to be in those places. Contrast, a situation where the police are searching for car keys. They could search your home, including the cupboards and desk drawers, as keys may be stored in such a place.

Arrest warrants allow the police to arrest an identified person for a specific charge. If, for example, you miss a court date, the judge may issue a warrant for your arrest. This arrest warrant permits police to take you into custody if they happen to come across you during the course of their day. They can also search you out to arrest you.

Neither a search warrant nor an arrest warrant can, for example, state broadly,

  • "Police have the authority to search for whatever they want at John Smith's house because we think he may be doing bad things,“ or
  • “Police can arrest John Smith because we think he's a bad guy.”

These are called “general warrants” and are not allowed in the United States.

The Right to Remain Silent

You have the right not to incriminate yourself. This means you don't have to talk to the police about your possible involvement in any criminal activity. This fundamental right, the right to remain silent, stays with you all the way through trial.

Of course, nothing about your right to remain silent prohibits the police from attempting to get a statement from you. Instead, they can ask you questions about your involvement unless or until you say you don't want to talk to them or you want a lawyer.

If you are in custody (and only if you are in custody), police have to read you the Miranda warning before they question you.

The Right to Challenge Evidence Obtained by the Government

Before trial, you have the right to challenge evidence the government has. You can argue, through your lawyer, the government should not be allowed to use the evidence they have if it was obtained illegally. This includes evidence obtained based on an illegal stop, search, seizure, warrant, or statement.

Trial Rights

At trial, the fundamental rights you have include:

  • The state's obligation to present testimony and defendant's right to cross-examine
  • An opportunity to present witnesses
  • The chance to testify
  • The state's obligation to meet their burden of proof
  • Unanimous jury verdict.

The State's Obligation to Present Testimony and Defendant's Right to Cross-Examine

The state is required to prove the allegations against you by presenting witnesses to testify. These witnesses testify in open court. The defendant, through their attorney, has the right to cross-examine the state's witnesses.

Present Witnesses

After the state has rested, the defense has the right to present their own witnesses. While some testimony favorable to a defendant is admitted during cross-examination, the defense may want to put forth additional witnesses, and they have the right to do so.


The defendant has the right to testify in a criminal case. However, they cannot be forced to testify. This, too, is their right to remain silent. If they choose to remain silent, neither the prosecutor or the judge can comment on that to the jury.

Burden of proof

Th state has the burden of proving the allegations beyond a reasonable doubt. If they fail to prove the case to the beyond a reasonable doubt standard, the defendant must be found not guilty. The defendant does not have any burden of proof.

Unanimous jury

For criminal cases, the jury verdict must be unanimous. If even one juror does not agree with the others, the jury cannot convict.

If You are Facing DUI Charges...

If you are facing DUI charges, our Atlanta DUI attorneys can help. We know your fundamental rights, and we will challenge the government to make certain your rights are respected every step of the way. Contact us today for a free consultation. No one should face DUI charges alone. Let us help.

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