Fundamental Rights and DUI

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In a DUI case, you have fundamental rights guaranteed to you by the United States Constitution, as well as the Georgia Constitution. When your fundamental rights are violated, this can result in a dismissal or reduction of the charge against you.

Stop of the Car

You have the right to be free from unlawful detention. Police cannot, for example, stop your car because of your race. They cannot pull you over because they disagree with your politics, as evidenced by the bumper stickers you display on your car. They may not stop you because you are young and driving an expensive late model vehicle. Before pulling you over, police must be able to cite a legally valid reason for doing so, such as speeding or weaving in your lane. Failure to have a reason will result in the dismissal of the case. Even if they list a valid reason, if it can be shown the officer misstated the facts, any evidence obtained after the stop can be suppressed.

Basis for the Arrest

Even if you are legally stopped, law enforcement must have a valid basis to arrest you. When you do not show evidence you are impaired, and you are not over .08 blood alcohol concentration, they cannot charge you with DUI, even if you have had had a drink. The standard for DUI is not whether you have been drinking, but rather, whether you have had sufficient alcohol that your driving ability is impaired, or whether your blood alcohol has reached .08 or greater. Without such evidence, they cannot arrest you.


Right to a Miranda Warning

Once you have been arrested, you have the right to a Miranda Warning. This warning informs the arrested person they have the right to remain silent, and that anything they do say can be used against them. The Miranda Warning also advises people they have a right to have an attorney present during questioning. If the field sobriety tests are not administered until after an arrest, you have the right to a Miranda Warning prior to the test being given. Failure to provide this warning in advance of field sobriety tests administered after an arrest has resulted in DUI cases being dismissed.

Right to Properly Administered Field Sobriety Tests (FSTs)

You have a right to have field sobriety tests administered properly and as intended. The field sobriety tests approved by the National Highway Traffic Safety Administration (NHTSA) include the following:

  • One-leg stand
  • Walk and turn test
  • Horizontal gaze nystagmus

Each of these tests allows a properly trained officer to assess a motorist's coordination, as well as their ability to follow instructions. Alcohol impedes both of these abilities, so proper administration of the tests is essential in order to ensure the accuracy of the test results.

Right to Properly Administered Breath Tests

Law enforcement commonly administers breath tests to determine the amount of breath alcohol present. This is due, in part, to a Georgia law prohibiting people from driving if their blood alcohol concentration is .08 % or higher. A properly administered breath test could provide proof of this. However, the test must be properly administered in order for the results to be considered valid. For example, a person must be observed for 15 minutes before a breath test is administered in order for the test to be valid. People must be observed, because any of the following could impact the test results.

  • Eating
  • Drinking
  • Vomiting
  • Burping
  • Smoking

Any of these activities could result in an inflated test result that doesn't accurately reflect the person's true breath alcohol concentration.

Right to a Properly Maintained Breath Alcohol Testing Instrument

When you provide a breath sample, the breath passes through an instrument specially designed to measure the presence of breath alcohol and calculate the percentage of alcohol present. This instrument doesn't work in a vacuum. Instead, this instrument must be properly maintained. This means it must be subject to regular upkeep. The instrument must be calibrated regularly to ensure proper measurement. Failure to properly maintain the testing instrument could result in improper or inaccurate test results.

Right to Properly Handled Evidence

In some cases, law enforcement collects blood rather than a breath sample. In these cases, they are supposed to maintain a complete chain of custody of the blood. In other words, they must document each person who comes in contact with the blood evidence, from the person who collects the sample to the person who accepts it into the lab, to the person who performs the testing. If the government cannot establish a complete chain of custody, the integrity of the sample can be called into question, possibly leading to dismissal of the charges.

Right to Proper Testing

In blood-alcohol testing cases, the same concerns about instrument maintenance apply. Further, blood-alcohol testing requires a scientific interpretation of data. The accuracy of the interpretation is always subject to challenge. Further, the integrity of the laboratory and the integrity of the analyst are open to attack.

Have You Been Charged with a DUI?

If you have been charged with a DUI, you have certain fundamental rights. At Hall County DUI law, we know the law and we will fight to make sure your rights are protected to the fullest extent. From challenging the stop of your car to the basis for the arrest to the right to a Miranda Warning and beyond, we will fight for you each step of the way. Because we concentrate on DUI law, we have seen all sorts of examples of cases that should never have been charged. We have been successful in litigating cases where our clients' fundamental rights have been ignored. Contact us to see what we can do for you.

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