Criminal Defense FAQs

What's the difference between a misdemeanor and felony in Georgia?

Unlike many other states, Georgia does not designate criminal offenses by class (for example, “Class A felony”). Instead, Georgia classifies crimes by misdemeanors and felonies. While sentences for both classifications can be life-altering, misdemeanor crimes are typically punishable by less than one year in a local jail and up to a $1,000 fine. On the other hand, felonies are punishable by one or more years in prison.

Serious felonies are punishable by life imprisonment or even the death penalty. To learn more about charges and potential penalties in Georgia, see our Georgia Criminal Defense page for categories of criminal offenses.

What does Probable Cause mean in a Georgia criminal case?

There is a difference between “reasonable suspicion” and “probable cause.”  A police officer must have a “reasonable suspicion” that a person has committed an offense in order to have ground to stop that person or pull their car over.  However, before a police officer can arrest a person, the officer must establish probable cause that the person committed an offense.  Probable cause is a higher standard of proof than reasonable suspicion.  According to the United State Supreme Court, probable cause means “facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (citations omitted).

Georgia Courts have established that this is an objective, rather than a subjective, standard.  In other words, we look at what a normal reasonable person would belief if they were aware of the same facts and circumstances as the arresting officer.  If a reasonable person could not possibly conclude that the accused person committed an offense, then there is no probable cause.  That means no authority to arrest, search, or seize property.

The probable cause standard exists to prevent unwarranted, abusive and/or random searches. Lack of probable cause or failure to adhere to lawful procedures during a search and seizure is a defense that Criminal Defense Lawyers can use to reduce or dismiss a criminal charge.

If I have been brought in by the police for questioning, do I have a right to an attorney?

You have a 6th Amendment right to ask for an attorney if you are being interrogated by the police. In fact, you have the right to an attorney at almost every important phase of the criminal process, except while being arrested.

If you are being arrested, you have a 5th Amendment right to remain silent. You do not have to offer the police evidence or information that could later harm you at trial. Unfortunately, many criminal suspects are overly confident that they can handle police questioning on their own. However, answering questions without a qualified criminal defense attorney can cause a suspect to dig a hole that is very difficult to climb out of later. This is due in part to the fact that police interrogators are trained in the psychology of obtaining confessions, even false ones. Additionally, the police are legally allowed to lie to suspects during questioning.

Therefore, for practical reasons, be polite and respectful if you are stopped or approached by a police officer. If they want to bring you in for questioning, you should immediately exercise your 5th Amendment right to remain silent by declining the invitation, and exercise your 6th Amendment right to an attorney by directing them to your Georgia Criminal Defense Lawyer.

If a police officer pulls me over, do I have to answer questions like how much I had to drink?

No! You have a 5th Amendment right to refuse to answer questions that might incriminate you. Therefore, politely decline to answer the question when you have been pulled over by the police for suspicion of driving under the influence, and asked whether you have been drinking and/or how much you have been drinking. Although you have this constitutional right, a police officer may believe that your exercise of this right means that you have indeed committed a DUI or some other criminal offense (which is not true).

Because of these practical considerations, always be polite when speaking with the police and very selective about what you say. If you decline to answer their questions, do so politely. If you choose to answer, do not lie!

Do I have to take a breath test or field sobriety test?

There are two types of breath tests. Prior to being arrested, the police officer may offer you a “road-side breath test” called an Alco-Sensor test. This test is not admissible in court, and it is totally voluntary. You do not have to take this test unless you want to do so.

The second type of breath test is conducted on a more accurate (but not totally accurate) machine located at the police station. This machine is called an Intoxilyzer 9000. The results of the Intoxilyzer 9000 are admissible in court. If you are arrested, you will likely be offered to take this type of breath test.

Under Georgia's Implied Consent law, you impliedly consent to providing a sample of your breath, blood, or urine after a lawful arrest for DUI. If you refuse to give a sample, your drivers license will automatically be suspended for one year. From that point forward, you have 30 days to appeal the license suspension to the Department of Driver Services and request an Administrative License Suspension Hearing. However, recently the Georgia Supreme Court has held in Elliot v. State that the the refusal to submit to a breath test cannot later later be used against you at trial. This ruling, however, does not apply to blood samples. So, if you refuse to provide a blood sample, your refusal can, and likely will, be used against you at your criminal trial.

So, if you refuse to take an Intoxilyzer 9000 breath test after being arrested, you may lose your license for a year, but it cannot hurt you at your criminal trial.  Even so, you have the ability to appeal the license suspension, as long as you do so within 30 days of your arrest.

What is an administrative license suspension hearing?

Georgia's Implied Consent law states that you impliedly consent to provide a sample of your blood, breath, or urine upon being arrested for DUI.  If you refuse to provide a sample, your license to drive will automatically be suspended for a period of one year.

HOWEVER, you have the right to appeal that license suspension by demanding an administrative license suspension hearing.  This hearing is held before an administrative law judge, which is a different judge than your judge for the DUI criminal charge.  At this ALS hearing, you can contest whether the officer properly followed Implied Consent warning procedures, whether the officer had probable cause. to arrest you, and whether you actually refused to provide a sample.

It is IMPERATIVE that you file this appeal within 30 days of the date of your arrest.  This is something we regularly do for clients charged with DUI. 

What's the difference between DUI per se and DUI Less Safe?

DUI per se means that a person operated a motor vehicle upon the roadways of Georgia while having a blood alcohol concentration of at least 0.08%.  In other words, Georgia law states that when a driver hast a BAC of at least 0.08%, the judge or jury must presume that the driver was “under the influence” of alcohol.

If a driver has a BAC of between 0.05% and 0.08%, then the judge or jury can, but doesn't have to, infer that the driver was under the influence of alcohol.  So, even through your BAC is under .08%, as long as it is at least .05%, the jury or judge can presume that you were under the influence to an extent that it was “less safe” to drive.

If a driver has a BAC of less than 0.05%, then the judge or jury must presume that you were NOT under the influence to the extent that it was less safe to drive.  However, the prosecution may still overcome this presumption by a showing of evidence otherwise (for example, by video footage showing a driver who looks really inebriated, even though the BAC was low).

So, in short, it is possible to get a DUI in Georgia, even if your BAC is less than 0.08%.  In those cases, it is crucial that you seek the help of a qualified DUI attorney.

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