Why we file motions in Georgia DUI cases:

Posted by Richard Lawson | Nov 08, 2017 | 0 Comments

You are probably familiar with the phrase “filing motions” in a court setting, but when it comes to a DUI case, what does that mean exactly? A legal “motion” is a very broad term that can mean many different things. A "motion” is the formal way for your Georgia DUI Attorney to ask the judge for something. Lawyers are not permitted to just call up a judge and ask for things like a new court date, nor are judges allowed to make decisions on a case by reading a police report or looking at a breath test result. A judge must give both the defense and persecution a chance to make arguments at a hearing.

Probably the most commonly filed motion in a DUI case is a discovery motion. “Discovery” really just means evidence. Most DUI cases in Georgia are misdemeanors, and in a misdemeanor case, the prosecution has to turn over their evidence to the defense when the defense requests it, via a discovery motion. One of the advantages that the defense has is that discovery is not reciprocal, in that the defendant does not have to turn over evidence in its favor to the prosecutor in a misdemeanor case. There are some exceptions of course, such as if the Defendant has an alibi, but for the most part, defense evidence does not need to be turned over nor must a witness list be provided to the prosecution.

Clients often ask me if I have filed a “motion to dismiss the DUI.” The answer to this is usually both yes and no. Yes, in that I almost always file a set of motions that ask the Judge to dismiss the case for the DUI arrest being unlawful, but no in that this is not called a "motion to dismiss the DUI.” A “dismissal” is a potential outcome in a case, not a motion in and or itself. 

In just about every DUI case my office handles, a “motion to suppress” is filed. A motion to suppress asks the Judge to suppress (or keep out) certain evidence if unlawfully obtained. It also extends as far as to say that the DUI charge should be suppressed (excluded) for lack of probable cause to arrest. Probable cause to arrest is a low standard, much lower than the proof beyond a reasonable doubt needed to convict at trial, but sometimes there is such a lack of evidence the judge will dismiss the DUI charge based on the defense's motion.

A dismissal never happens by simply having a judge read the motions. To seek a dismissal, the judge will have a hearing on the matter where the arresting officer must testify, and the attorneys will make legal arguments insofar as probable cause is concerned.

In Georgia, if you are over 21, our courts have held that an odor of alcohol on your breath and an admission of drinking are not enough to arrest for DUI. The officer needs to conduct field testing or observe some other manifestations of impairment to even charge you with DUI. If this is not done, a judge may very well grant the defendant's motion and throw out the DUI charge.

Even if it established that there is enough probable cause to keep the DUI charge, a defendant may have a motion to exclude certain damaging evidence such as the breath or blood test results. Your Georgia DUI Lawyer can also challenge the validity of the field sobriety tests administered in a case. Also, your lawyer can argue that the arresting officer coerced someone into performing field sobriety tests or that the tests were scored improperly.

The defendant can also argue via a motion that there was not a basis to stop their vehicle, to begin with. There needs to be some traffic infraction, wreck or roadblock for an officer to make contact with a driver. The law calls this reasonable articulable suspicion. Each case is unique, and there are many different issues that can be litigated, via a defense motion, so it is definitely something you should discuss promptly with your attorney. Never submit to Georgia DUI Penalties unless you have had your case reviewed by our office. 

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Richard Lawson

Managing Partner at Lawson & Berry:


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