What are My Rights as a Georgia DUI Defendant?

If you have been accused of Driving Under the Influence in Georgia, you have rights as a criminal defendant. Understanding these rights is imperative.

YOU HAVE A RIGHT TO DUE PROCESS:

The Due Process Clause of the Fifth Amendment and the Fourteenth Amendment provide that the government shall not take a person's life, liberty, or property without due process of law. The fundamental idea behind the Due Process Clause is that of "notice" and "hearing." This means that you must be given a hearing before you can be condemned. Due process is about fair procedure and process, and thus, it requires an opportunity to present objections to a neutral and fair decision maker.

In DUI cases, the State must give you a hearing before suspending or terminating your driver's license.   However, since driving is not a right, you are not entitled to a jury trial before losing the privilege to drive.  You can be placed on notice of suspension and then given a right to contest the suspension thereafter.  However, the State does not have to prove the refusal to submit to testing beyond a reasonable doubt.  In fact, the State only has to prove the refusal and that implied consent was read by a preponderance of evidence.

YOU HAVE A RIGHT TO DISCOVERY AND EXCLUPATORY EVIDENCE:

As a criminal defendant, the State must make certain evidence available to you if you request it. Most importantly, the State must disclose favorable evidence, material to your guilt or innocence. This is required under the United States Supreme Court decision, Brady v. Maryland, 373 U.S. 83 (1963).  The Georgia Constitution emphasizes:  "Implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial."

However, unlike in felony cases where full reciprocal discovery is required, misdemeanor discovery is actually quite limited. Under O.C.G.A. § 17-16-21, discovery requirements applicable to misdemeanors does not require the state to produce police reports, copies of 9-1-1 recordings, crime scene photographs, the victim's criminal history, witness statements, or repair records for the property the defendant damaged.

In fact, misdemeanor defendants are entitled only to the statements of the accused, scientific reports or evidence produced, and the aforementioned Brady materials.

YOU HAVE A RIGHT TO A LIST OF WITNESSES:

While the Georgia Constitution does not require the State to provide you with a list of trial witnesses, it does require it to provide a list of witnesses on whose testimony the charge was based.

O.C.G.A. § 17-16-21 states: “Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.”

YOU HAVE THE RIGHT TO UNDERSTAND THE EFFECT OF A GUILTY PLEA AND YOUR CONSITUTIONAL RIGHTS WAIVED THEREBY – THESE ARE YOUR “BOYKIN RIGHTS”  See Boykin v. Alabama, 395 U.S. 238 (1969):

By pleading guilty to a charge, you waive some of your Constitutional rights and privileges in exchange for a more lenient sentence. A guilty plea is the equivalent of a conviction after a completed trial, and by pleading guilty you give up many rights associated with the trial process. These rights include the right to trial by jury, the privilege against self-incrimination, and the right to confront one's accusers. When you plead guilty, it is crucial that you understand the rights you are giving up. The following is a summary of some of these rights.

YOU HAVE A RIGHT TO A TRIAL:

The Sixth Amendment of the United States Constitution grants a criminal defendant the right to a jury trial. The Sixth Amendment states: “The accused shall enjoy the right to a … public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]” Traditionally, this right has been interpreted to mean a 12-person jury. However, a jury can constitutionally consist of as few as six people.

By pleading guilty you forgo a trial. The State has an interest in securing guilty pleas because trials take up court resources.

In Georgia you have the right to a jury trial of 6 jurors in misdemeanor DUI cases and 12 jurors in felony DUI cases.  Only the accused can waive the right to a jury trial, not his or her attorney.

YOU HAVE A RIGHT TO THE PRESUMPTION OF INNOCENCE:

The presumption of innocence is a basic component of a fair trial under our criminal justice system. The United States Supreme Court articulated the importance of this presumption in Coffin v. United States: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

A criminal defendant is presumed innocent until proven guilty. You enter the trial with this presumption and it remains with you unless and until the State overcomes it with evidence sufficient to convince the trier of fact beyond a reasonable doubt that you are guilty. The State must do this for each and every element of the crime. The defendant has no burden of proof, and the burden never shifts to the defendant.

When you plead guilty to a charge, however, you are convicted as if you went to trial. Thus, by pleading guilty you lose the presumption of innocence.

YOU HAVE A RIGHT TO SEE, HEAR, AND CROSS-EXAMINE WITNESSES:

Under the Sixth Amendment's Confrontation Clause, criminal defendants have the right to "be confronted by the witnesses against" them. This clause gives defendants the right to cross-examine witnesses, which requires each witness to come to court, look the defendant in the eye, and answer the defense's questions. This is the defendant's chance to point out the flaws in the witness's story and credibility. By pleading guilty to a charge, you do not get to point these things out to the trier of fact.

YOU HAVE RIGHT TO TESTIFY AND PRESENT YOUR OWN EVIDENCE:

You have the right to testify if you choose to do so. However, testifying comes with risks because when you testify the State will have an opportunity to cross-examine you. The right to remain silent comes into play with the right to testify. You have the right to choose whether you remain silent or testify.

You also have the right to present your own evidence at trial. After the State has presented its evidence, you will have an opportunity to present evidence of your own.

YOU HAVE THE RIGHT TO FILE MOTIONS AND MAKE OBJECTIONS:

You have the right to petition the court to exclude evidence that is not legally admissible against you. You have the right to fight your case, raise relevant issues, and have those issues decided by a judge.

YOU HAVE THE RIGHT TO THE COURT'S SUBPOENA POWER:

You have a right to subpoena witnesses in your favor to come to court and have them testify under oath.   The right to compel witnesses includes the right to subpoena witnesses and also the right to obtain their testimony in court.

In Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987), the United States Supreme Court explained, “Our cases establish, at a minimum, that criminal defendants have the right to the Government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt."

YOU HAVE THE RIGHT TO AN ATTORNEY:

Under the Sixth Amendment of the Constitution, "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Once the Sixth Amendment right to counsel attaches for a particular charge, law enforcement officers cannot use any statements “deliberately elicited” from you without the presence of counsel (or your express waiver) at trial against you.

You also have the right to an attorney of your choosing. This right has some limitations. The court can restrict this right if the attorney you have chosen is someone you cannot afford, if the person is not a member of the bar, if the person you choose declines to represent you, or if the court disqualifies the person (which can happen when there is a conflict of interest).

If you cannot afford to retain an attorney, the court has an obligation to appoint you an attorney.

YOU HAVE THE RIGHT TO REMAIN COMPLETELY SILENT:

The Fifth Amendment of the United States Constitution, which is applicable to the States by the Fourteenth Amendment, provides that no person shall be compelled to be a witness against himself . . ..” Courts have interpreted this to mean that no person shall be compelled to give self-incriminating testimony.

The right to remain silent covers multiple areas throughout the judicial process. For example, when the police interrogate you, you can indicate your wish to remain silent. In these situations, your request to remain silent must be completely clear.

This right also protects you during a trial. The State cannot force you to testify against yourself. Furthermore, if you proceed to trial, the judge will give the jury an instruction that they cannot hold it against you if you decide not to testify. The judge will also give an instruction that the State has the burden of proof, and you have no burden to present any evidence to prove your innocence.

YOU HAVE A RIGHT TO AN APPEAL:

The United States Constitution does not grant criminal defendants the right to an appeal, but Georgia does under the Appellate Practice Act of 1965.

When you plead guilty, you still have a right to appeal your case, but you limit the issues you can raise. Typically, your claims are limited to ineffective assistance of counsel, defective plea entry procedure, and illegal sentence.  You also have 6 months to file a Habeas Corpus petition for any misdemeanor traffic offense in Georgia.

Always Consult a Qualified Georgia DUI Lawyer Before Deciding on How to Proceed in your DUI Defense:

If you have been charged with a DUI, it is crucial that you understand your rights as a criminal defendant.  Many of your rights are waived unless expressly asserted.  For example, you only have 30 days to appeal the automatic suspension of your driver's license.  Unless that appeal is filed, the right to appeal is waived.

Richard Lawson is the top-rated and most reviewed Atlanta DUI Lawyer.  He is a former Georgia DUI Prosecutor with over 25 years experience defending people accused of DUI in throughout Atlanta, Metro-Atlanta, and North Georgia.  His reviews can be found on Avvo.

For more information, contact the Atlanta DUI Attorney who will protect you and your rights. Remember, unless asserted you will waive your rights.  Your case will not defend itself.  We are here 24/7 to help you when you need it most.