Effective Pre-Trial Motions

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Have you ever heard the media report on a dismissal in a criminal case by stating, “He got off on a technicality”? While this may seem like a sneaky way to get out of facing responsibility for one's actions, in fact, the word “technicality” has a very significant meaning. That “technicality” the media refers to is actually one or more of the following:

  • The United States Constitution,
  • The Constitution of the state of Georgia,
  • Georgia statutes,
  • Federal law,
  • Case law from the Georgia Supreme Court or Appellate Courts, and
  • Case law from the United States Supreme Court.

Our constitutions, laws, and prior cases, referred to as “legal precedent,” all dictate what the government can or cannot do. When the government collects evidence illegally, the evidence must be suppressed.

Constitutional Protections

Our constitutions protect citizens from unreasonable action by the government. Here are some examples.

  • Police cannot pull your car over based on the color of your skin.
  • Police cannot pull your car over because they disagree with your political views, as evidenced by the bumper stickers on your car.
  • You cannot be beaten to force a confession.
  • You cannot be threatened with violence if you don't confess.
  • Before a custodial interrogation takes place, you must be informed of your right to have an attorney present.
  • You must also be informed that you are entitled to have an attorney appointed if you cannot afford an attorney.
  • You must be asked if you wish to waive those rights prior to being questioned.
  • Law enforcement may not search your car without a legal basis to do so.
  • Law enforcement may not simply take things into their possession without a legal basis to do so.

These constitutional protections are in place to protect the citizens from a governmental abuse of power. When a lawyer discovers what appears to be a violation of the constitution, the law, or precedent, the lawyer is duty bound to explore the issue. This is not a “technicality,” rather it is your right under the law.

Stops of Your Car

Under the law, police can stop your car if they have probable cause to believe a crime has occurred. This may include observing any of the following driving conduct.

  • Driving down the wrong side of the road.
  • Drifting in and out of a lane.
  • Speeding.
  • Driving too slowly.
  • Driving on the shoulder.

This list is not all-inclusive, it is merely an attempt to provide some examples which provide a basis to stop a car. Police may not stop a car based on the driver's age, race, religious beliefs, political views, or based on their assumption the person driving couldn't possibly afford to own a car as nice as the one being driven.

Without a valid basis to stop the car, any information discovered as a result of the illegal stop must be suppressed.

Extending Beyond the Basis of a Stop

Imagine the police actually do have a legal basis to pull someone over. This does not provide them with carte blanche to engage in whatever conduct they choose, simply by virtue of the stop. Take the example of drifting in and out of the lane. Imagine the police pull you over, and give you a ticket for your driving conduct. They are not then allowed to extend the stop by searching your car or asking you to perform field sobriety tests unless they have additional reason to do so.

For example, if you are slurring your words, they may be concerned you are impaired. Your conduct, observed after the stop, may provide probable cause for them to ask you to perform field sobriety tests. If they see an open bottle of whiskey on the passenger seat, this may give them probable cause to search your car. However, without additional information, they are not free to do so.


If you are arrested, the police may wish to talk to you. However, they must first read the Miranda Warning to you. Anyone with a television can probably cite the Miranda Warning:

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you prior to questioning. Bearing these rights in mind, do you wish to give up your rights and speak to me about the case?

If you are in custody, and you are not read the Miranda Warning, or they read it to you incorrectly, your statement can be suppressed. Further, they cannot use violence or the threat of violence to “convince you” to make a statement.

Searches and Seizures of Your Car or Your Person

Without probable cause to believe there is evidence which is indicative of a crime being committed or about to be committed, police cannot search your car as a general rule. (There are exceptions to this, however, they are fact specific.) Again using our example of weaving on the road, once you are pulled over, they cannot simply search your car to see what they may find. Instead, law enforcement must have probable cause to search your car.

If You are Facing DUI Charges

If you are facing DUI charges, you have rights. You are entitled to the protections of the state and federal constitutions, statutes, and case law. If your rights have been violated, we may be able to get your case dismissed. These are what effective pretrial motions are all about.

Contact our Hall County DUI attorneys for a free consultation. You have nothing to lose. We look forward to working with you.

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