Legal Resources

The Law Offices of Jeffery C. Talley has compiled some useful information regarding various legal resources. Continue reading for more information.

Person Drinking and Driving

Twenty Common Misconceptions about Georgia DUI Law

Researching about your DUI charge on the internet can lead you to many misconceptions. Without the guidance of a skilled attorney to help navigate you through every step of your case, you could be missing steps and defenses to resolve your case.

My office receives many calls from people that have been doing research on the internet. Online research lacks context and the experience of a qualified lawyer who knows the local rules and customs of the court system. These misconceptions can mislead a person to make poor judgments about their case, some of which can lead to irreversible outcomes. Although the internet has many great resources, no website should ever take the place of legal advice from a skilled attorney.

  1. DUIs Come Off Your Record After 7 Years:

This is completely false. A DUI in Georgia is a misdemeanor traffic offense and stays on your permanent Georgia Criminal history for life. Petty traffic citations such as speeding or running red lights unrelated to DUIs only go on your Motor Vehicle Report through Driver Services and for the purpose of insurance and points, come off after seven years. A DUI conviction remains on your criminal history forever.

  1. A DUI Can be Expunged:

There are only two instances where a DUI in Georgia can be restricted from your criminal history. First, you took your case to a trial either by a jury or a judge, and they found you not guilty of all offenses, including any related offenses, such as failure to maintain lane. The second way to have your record restricted is if the State completely dismissed all your charges. Many people mistakenly believe that if their charges were reduced to a reckless driving, that this constitutes a dismissal and are therefore eligible for record restriction. This is false. The charges must be entirely dismissed, not just reduced.

  1. Georgia Offers Pretrial Diversion or First Offender Plea for First-Time DUI Offenders:

Pretrial Diversion Programs, commonly referred to as conditional discharges, are excellent programs that allow a defendant charged with an offense to have their case dismissed. The dismissal must be earned and usually involves attending counseling, payment of a fine, completion of community service, and sometimes a period of probation. Usually these programs are for people charged with minor traffic offenses, shoplifting, possession of marijuana, and underage possession of alcohol.

Although these programs are a great opportunity for many people, a DUI in Georgia is not eligible for Pretrial Diversion or Conditional Discharge. Additionally, many people think that they can use a First Offender Plea for a first DUI offense. DUI is specifically restricted by the statute allowing First Offender Pleas.

  1. There is Not Much An Attorney Can Do If I Have Taken a Breath Test and Tested Above the Legal Limit:

I have heard this theory many times. A skilled attorney is trained in every possible DUI Defense that may be used on your behalf in court. A skilled attorney will begin by challenging whether you voluntarily submitted to a breath test, the equipment used to conduct the test and the validity of the reason for the stop (articulable suspicion). In addition, there are many other defenses an attorney can look into to help you fight your case, even if you took a breathalyzer and tested above the legal limit.

Furthermore, even if a breath result is unable to be excluded from evidence, an attorney is able to negotiate a better plea offer than a lay person representing themselves in court.

  1. If I Complete Community Service and DUI School Before Court, The Prosecutor Will Dismiss My DUI Case:

Although many times completing these things before going to court is helpful, they do not warrant a dismissal of your charges. These things do not negate the fact that you may still be guilty of the charges, but they do show you have taken things seriously on your part and may be helpful in obtaining a reduction of your charges. Every case is different, and the decision to reduce your charges is solely up to the prosecutor. If reduced, the case will not be completely dismissed. The more likely outcome would be a reduction to reckless driving.

  1. Having Political Connections Such as Knowing a Judge, a Mayor or Another Police Officer Can Help Have My Charges Reduced or Dismissed:

I hear this misconception on a regular basis. Many people believe that if they are involved in the community and know the mayor or other city council members, that these people will hold enough influence to have your charges reduced or dismissed. The truth is, DUI carries a social stigma. Because of this, many times a Judge friend or Mayor friend of yours will not want to “put their name” on your DUI. Furthermore, having a friend intercede on your behalf puts them in an uncomfortable position that may cause you to lose a friend. Many times, it is best to leave your “political connections” out of your DUI case.

  1. If I Hire an Attorney, My DUI is Guaranteed to Be Dismissed or Reduced to Reckless Driving:

Although this theory may be true in other countries around the world, it is far from true here in the United States. Hiring an attorney is essential for your DUI charges, but does not guarantee a particular outcome in your case. The decision to reduce your charges is up to the sole discretion of the prosecutor. The prosecutor is a human just like you and me, and they cannot be forced to change their mind if they have decided not to offer you a reduction of your charges. That being said, many times you may have a much better chance of a reduction of your charges with an attorney than you have if you represented yourself on your charges. Never believe an attorney that promises you a particular outcome.

  1. The Court Cannot Hold a DUI Against You if it Occurred More Than 10 Years Ago:

The 10-year rule is very often misunderstood. In Georgia, there are mandatory increases in punishments associated with the number of DUIs a person has within a 10-year period. However, there has never been anything that prevents a court from holding any prior offense against a criminal defendant. Each court views prior convictions differently.

  1. The Outcome of Case Can be Changed at a Later Date:

People who have already resolved their case call my office frequently. Very often they are facing consequences for things they did years ago. The problem is that there is very little if anything a qualified attorney can do after a case is resolved. The time to get a good outcome is while the case is still pending.

  1. The Officer Said I Could Drive Until My Court Date:

When a person is charged with a DUI in Georgia, they only have 30 days to file their appeal. Otherwise, their license will be suspended. Many police officers dishonestly tell arrestees that they can drive on the DDS-1205 Form until their court date, which is very often months away. The DDS-1205 Form is a 30-day driver’s permit. If you flip over the DDS-1205 Form it very clearly says you only have 30 business days to file an appeal. Otherwise, a person’s license will be suspended. In the event of a refusal, the suspension is for 12 months.

  1. You Must Attend Your Initial Arraignment:

Most courts will allow your attorney to handle many of the court appearances. Ultimately, you will have to attend court, however, my job is to minimize your inconveniences as much as possible. It does not violate your bond if you have your attorney handle the initial arraignment. When your attorney appears for you, it is as if you appeared yourself.

  1. The State Will Not See Out-of-State Arrests and Convictions:

When the prosecutor runs a GCIC Report on you (Georgia Crime Information Center), it only shows Georgia arrests. Sometimes our clients get lucky, and nothing further is discovered. However, if the prosecutor looks carefully, there will be a code that indicates a “multi-state offender.” This will cause an astute prosecutor to run a national criminal history (NCIC).

  1. The Police Officer Was Out of His Jurisdiction, and as a Result, the Arrest is Unlawful:

Unless otherwise noted in the authorizing documents for a police department, most police officers can pull over someone outside of the city or county in which they are employed. Some university police departments have limited jurisdiction, but those are exceptions to the general rule. All deputy sheriffs have statewide arrest powers. That being said, it is the custom of most police officers to stop a suspected drunk driver and then turn that person over to the local police when they arrive.

  1. The DUI Laws are Essentially the Same Throughout the United States:

In fact, Georgia DUI laws are very different from the laws of other states. The State of Georgia has been ranked as the second toughest state in which a person can be charged with a DUI. The ranking methodology was based on both punishment and driver’s license consequences.

  1. The Judge Decides the Outcome of the Case:

This is only partially correct. If a person elects to have a bench trial, (a trial by judge only) the judge will decide both guilt or innocence and any consequences therein. However, most DUI cases are either settled by negotiation or tried by a jury. In a negotiated plea, the judge is not part of the plea-bargaining process. The judge can either accept or reject the agreement. If the judge changes the agreement, a criminal defendant has a right to withdraw their plea. In a jury trial, the judge makes legal rulings and acts as an impartial referee. The judge would, however, decide punishment in the event of a conviction.

  1. I Was Not Read My Miranda Rights, and So My Case Will be Dismissed:

Miranda is a case that explains a person’s right against self-incrimination as guaranteed by the 5th Amendment to the United States Constitution. If the police are not trying to elicit a confession from you, those rights generally do not apply. For the most part, Miranda Rights do not apply in a DUI case.

  1. Your License Automatically Reinstates After a Suspension:

No. You must take active steps to reinstate your Georgia Driver’s License. Otherwise, it will remain suspended indefinitely.

  1. I Cannot Afford an Attorney:

Most law offices have different attorneys at varying price points. Some will offer payment plans as well. You will likely be able to afford to hire an attorney you can afford.

  1. I am Entitled to a Free Lawyer:

All persons have the right to hire the attorney of their choice. However, a person is only entitled to a court-appointed attorney or public defender if they meet the State and local indigent guidelines.

  1. An Arrest Means You Are Guilty:

Nothing could be further from the truth. No one who is arrested in the United States is assumed guilty. In fact, everyone enjoys the presumption of innocence.

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Jeffery Talley court jury

Legal Process

WHAT HAPPENS IF I AM ARRESTED IN GEORGIA FOR A SERIOUS CRIME?

Depending on the nature of the case and specific Georgia criminal law involved, you will either get arrested by a police officer at the scene of a crime, after an arrest warrant has been taken out in your name, or after a grand jury returns an indictment listing the formal charges against you.

Whether you are arrested or indicted in Georgia, the prosecution (referred to as the “the State” in Georgia criminal cases) must have “probable cause” to believe that you engaged in a crime. Unlike proving guilt “beyond a reasonable doubt,” it doesn’t take much evidence to establish probable cause. If you are charged in an indictment, that means a grand jury has already found that there was probable cause to charge you with a crime. If you have not yet been indicted, there is usually a “preliminary hearing” or “probable cause” hearing in order to determine whether your arrest was supported by probable cause.

While it is unusual for Georgia criminal charges to be completely dismissed after a preliminary hearing, the hearing is still an important opportunity to find out what kind of evidence the State has against you. It can also be an opportunity to question law enforcement officers and other witnesses while they are under oath in order to lock them into their stories in case they will testify again later at trial.

After being charged with a Georgia crime, you will usually be brought into court for an “arraignment” where you will plead either guilty or not guilty. After this, the prosecution must turn over all of the evidence it has against you, including police reports, video footage, lab results, witness statements, and other evidence. This evidence is called “discovery” and every defendant has a right to access this evidence before the trial.

CAN I GET A BOND IN A GEORGIA CRIMINAL CASE?

After you have been arrested, you will also have an opportunity to request that you be released from jail on bond. A bond is essentially a legal agreement that allows you to be released from jail while your criminal case is pending. The word “bail” is often used interchangeably with “bond.”

Depending on the type of charges you are facing, only certain judges in Georgia have the authority to grant a bond. If the charges fall under a certain class of Georgia crimes, for example, only a superior court judge can grant bond, so you shouldn’t be surprised or give up hope when the first judge you see (usually a magistrate judge) denies your request for bond.

In almost every case, a judge will hold a “bond hearing” in a Georgia criminal case to determine whether or not to grant the defendant a bond. In determining whether to grant a bond, judges apply a four-factor test (https://law.justia.com/cases/Georgia/supreme-court/1993/s92a1154-1.html)

Once bond has been granted, the defendant or their family usually have to post money or property as “collateral.” This is meant to make sure the defendant keeps appearing for his scheduled court dates. The more serious the charges, the higher the bond usually is.

WHAT ARE THE POTENTIAL OUTCOMES FOR A GEORGIA CRIMINAL CASE?

Before a case goes to trial in Georgia, several things have to happen. First, the defense must have the opportunity to review the evidence and consider whether to file “pretrial motions.” Through filing pretrial motions, you and your lawyer can request that the judge dismiss some or all of the charges against you, limit the type of evidence that the prosecution can use at trial, or give you access to other evidence the prosecution has not turned over. During this “pretrial” period, the defense and the prosecution can also negotiate a plea agreement.

Every case is different depending on the evidence, the parties involved, the prosecutors, and even the judges. Broadly speaking, however, there are three possible outcomes in most Georgia cases.

Dismissing Charges:

Some criminal charges in Georgia are dismissed by the prosecutor or the court before the case gets to trial. Most commonly, prosecutors in Georgia will often dismiss charges if the defense wins important motions, such as a motion to suppress the evidence the prosecution is relying on to convict the defendant. Under Georgia law and the U.S. Constitution, the prosecution cannot use evidence that was seized during an “unlawful” search and seizure, such as a traffic stop or the search of a home without a warrant. If the prosecution cannot establish that law enforcement seized the evidence lawfully, the defense can move to exclude all of that evidence from trial often gutting the State’s case.

In other Georgia criminal cases, the court may dismiss the charges if the defense files a pretrial motion showing that there was a defect in the indictment or if the prosecution has failed to properly charge you with committing a crime. For example, a Georgia criminal defense lawyer can file a motion to dismiss the charges by arguing that the indictment does not allege an actual violation of the law or that the prosecution took too long to bring charges and the statute of limitations has expired.

Plea Deals

In recent years, Georgia criminal law has changed in many ways that make it harder for accused people to defend themselves against serious charges. As a result of these changes, most Georgia criminal cases today end with the defense and the prosecution entering a plea deal in which the defendant agrees to plead guilty in exchange for some kind of benefit. For example, you may agree to plead guilty to a more minor offense than the original charge, or you may agree to plead guilty in exchange for the prosecution’s promise to recommend a lighter sentence.

It is important to know that agreeing to a plea deal often means giving up a lot of your rights. Besides the right to a trial by a jury and the presumption of innocence, defendants pleading guilty usually waive their right to appeal as well. In some cases, a defendant also has to cooperate with law enforcement in order to gain any benefit from pleading guilty.

Ultimately, the decision whether to plead guilty in a Georgia criminal case is a decision only the accused person can make. If you are considering pleading guilty, however, it is important to consult an experienced attorney who you trust and who has reviewed the evidence against you. That way you can be sure that you understand the risks and the benefits of a plea agreement, what rights you are giving up, and what kind of sentence you can expect.

Jury Trials

Of course, some cases cannot be resolved by winning pretrial motions or negotiating plea agreements. In these situations, the prosecution and defense will each have an opportunity at trial to make arguments in front of a jury who will determine whether to convict or acquit the defendant.

A criminal trial in Georgia usually begins with jury selection, and jury selection is arguably the most important phase of a trial. During jury selection, lawyers for the defense and the prosecution can “strike” potential jurors, that is remove them from being a member of the jury, if they are biased towards or against the State or the defendant or if there is a good reason justifying the juror’s exclusion from the trial.

The rest of the trial is not so different from what you see on TV, usually not as dramatic. There are opening statements, witnesses testify, objections are raised and argued, and each side gives closing arguments. After closing arguments, the judge instructs the jury on the applicable Georgia criminal laws and asks them to apply the law to the evidence they heard during trial.

There are three possible endings once the jury begins its deliberations — a conviction, an acquittal, or a mistrial. If the jury is deadlocked and cannot come to a unanimous agreement of the verdict, the court will declare a mistrial due to a “hung jury.” If there is a conviction, the court will usually hold a sentencing hearing at a later date, during which it will consider evidence and arguments from the defense and the prosecution as to what would constitute a fair sentence. Of course, if the jury comes back with a “Not Guilty” verdict, the defendant can go home free.

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Georgia Point System for Suspension of Drivers’ Licenses

The state of Georgia has specific rules for deducting points from drivers’ licenses after a traffic conviction. After a certain number of points are taken off your driver’s record, your license may be suspended, and Jeff can help you fight against suspension or get your license back. Please review the points schedule for the various traffic violations under Georgia Law.

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Accountability Courts

Continue reading to learn more about Georgia Accountability Courts. Information regarding DUI treatment programs, help choosing a court, and more are all described in detail.

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About Us

Attorney Jeffery C. Talley, Criminal Defense Attorney serving clients throughout North Georgia.

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The Law Offices of Jeffery C. Talley 770.534.2035
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