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Motion to Suppress

Cobb County DUI Defense

DUIs are often fought before the case ever reaches a jury. Although there are many types of motions that can be asserted pre-trial, the most common is what is called a motion to suppress. Generally, such a motion argues that certain evidence should be excluded at a defendant's upcoming trial because of a violation of the Fourth or Fifth Amendment. Once a motion to suppress is asserted, the State has the burden of proving the legality of the manner in which the evidence complained of was obtained. Some of the more common suppression issues are discussed below. 

Illegal Traffic Stops

The majority of all DUI arrests commence with a traffic stop by a police officer. Under Georgia law, a police officer can stop a vehicle upon observance of literally any traffic infraction. Even if the officer has ulterior motives in stopping someone, as long as the officer has reasonable suspicion that a traffic offense has been committed, the stop will be upheld.

Thankfully, more and more police vehicles are equipped with dashcam videos, where the defendant's lawyer can see for him or herself whether or not reasonable suspicion existed for the traffic stop. If the dashcam video objectively refutes an officer's claim that he or she witnessed a traffic infraction, the stop will be ruled illegal.

The result of an illegal traffic stop is that any evidence obtained thereafter is inadmissible at the defendant's trial. Thus, it is extremely important to gather any and all evidence relating to the initial stop of a vehicle.

Lack of Probable Cause

Once an officer stops a vehicle and commences an investigation into whether the driver is intoxicated, he or she must have probable cause before effectuating an arrest of that person for DUI. Each and every case is different, but there are several more common issues raised in regards to the probable cause analysis. 

One is whether the officer observed the typical manifestations of an intoxicated person. Officers are trained to use their senses to detect these clues. They use their eyes to see if the driver is unsteady on their feet or has glassy, bloodshot eyes. They use their nose to detect whether they smell alcohol. They use their ears to detect whether the driver is slurring his or her speech. 

The most important tools that officers have are what are called the field sobriety evaluations. More about this topic can be found here. These consist of three tests that are supposedly scientifically proven to establish an estimate of the blood alcohol content of a person. These three tests are called the horizontal gaze nystagmus (HGN), the walk-and-turn and the one-legged stand. The tests must be performed according to strict protocol, otherwise the reliability of the results can be compromised. 

It is vital, then, for a DUI lawyer to scrutinize the manner in which these tests were administered in a particular case. There are dozens of things to look for in each test to determine whether the officer followed protocol. If the reliability of the results can be proven to be unreliable, the judge may be more inclined to agree that probable cause for a DUI arrest was lacking. If that happens, any evidence obtained subsequent to the arrest, including the state-administered blood, breath or urine test, would be excluded from trial.  

Faulty Implied Consent Warnings

Once under arrest, the arrestee will normally be advised by the officer of his or her rights under Georgia's implied consent law. Generally, these warnings inform the arrestee that they have a right to refuse the testing of their blood, breath or urine, but that the refusal may be held against them and may cause their license to be suspended for at least a year. At the end of the warnings, the officer asks the arrestee whether he or she will consent to taking the state-administered test of their blood, breath or urine (the officer chooses). 

Part of implied consent is that an arrestee is entitled to an independent test of their own bodily substance, at their own expense, once they have submitted to the state-administered test. If you invoke this right, and make a reasonable request for an independent test that can be accommodated without much trouble, an officer's failure to honor this right may result in suppression of the initial test. 

Implied consent warnings must be read in a manner that the arrestee can understand. If the officer reads them so quickly that a reasonable person would be unable to intelligently gather their meaning, this may invalidate any subsequent tests. Additionally, the implied consent warnings must generally be provided to the arrestee immediately upon the arrest for DUI. Absent exigent circumstances justifying a delay, untimely implied consent warnings may result in exclusion of the test results.  


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