There are a number of different constitutional issues that may arise during the course of an Atlanta DUI case. Currently, however, implied consent notice is one of the most prominent.
Under Georgia’s current law, if a person drives on the highways of Georgia, they have by implication given their consent to submit to a blood, breath, or urine test if arrested for a DUI charge. However, defense attorneys have recently begun to raise a Fourth Amendment challenge to that implied consent, essentially arguing that while Georgia’s statutory law only requires implied consent, the Fourth Amendment, which provides protection from unreasonable searches and seizures, requires affirmative consent be given.
Recently, there was a case called Williams v. The State of Georgia, in which the Georgia Supreme Court reaffirmed that the trial court must consider whether or not consent to a breath, blood, or urine test was validly given under the Fourth Amendment to the US Constitution.
Search is a term commonly used to refer to police investigating whether people are carrying certain contraband, or searching a person’s vehicle, body, home, or clothing. Seizure refers to the police taking contraband or other items of purported evidentiary value when they find them. For example, if the police pull someone over and smell marijuana, if they search the vehicle and find marijuana or scales, they may seize those things or take them into their possession.
The issues is that sometimes what they take is not obviously contraband, but is alleged to be by the police. For example, if a person is in possession of some form of drugs and the police find that they have a lot of money in their wallet, the police may say it is clearly indicative of this person being involved in drug transactions, and seize that money.
In court, the searching of the person, the person’s vehicle, and the seizure of any evidence, be it contraband or other things such as money, can all be challenged under the Fourth Amendment.
An unreasonable search is a search where the police do not have a valid lawful reason to conduct it. An unreasonable search could be a search done without consent, without probable cause, without exigent circumstances, or without a warrant. Typically, unreasonable searches are conducted by the police when they have a mere hunch or suspicion that there is criminal activity, or criminal evidence, to be found.
A warrantless search is a search conducted by the police without a search warrant or an arrest warrant. A warrantless search is quite simply a search without a warrant. A warrantless search may still be valid if proper consent was given, or if other circumstances such as probable cause or exigency required the search to be conducted. However, the key to a warrantless search, in contrast to a search with a warrant, is that there has been no prior finding by a judge that the search is appropriate.
In a typical DUI arrest, the person who has been arrested is not usually advised of their Miranda rights under the US Constitution. That is usually because once the police have decided to arrest, they do not intend to question the person any further about the incident. However, sometimes during the ride to the jail, the police officer may ask the defendant, who is handcuffed in the back, questions about why they were driving drunk, why they have so much money on them, or why they have drugs.
These conversations may begin very casually, however, they can sometimes lead to offensive investigatory questions by the police officer which may then be hurtful to the individual’s case and their defense.
In this situation, the defense should file for a Jackson v. Denno hearing in the court. In this type of hearing the court addresses the issue of whether or not those statements were being asked in violation of Miranda laws.
With most constitutional issues, it is uncommon for the defense attorney to raise the question concerning that constitutional issue and present it to the court for the court’s consideration. Constitutional issues, with some very rare exceptions, are always addressed by the trial judge hearing the case. In contrast, constitutional issues are not typically presented to a jury for them to decide whether or not the Constitution was violated. This is the providence of the trial judge to decide if the Constitution was violated in some way by police actions.
In Georgia, if there is an appeal taken by the defense to the trial court’s ruling concerning constitutional issues, it is a direct appeal which bypasses the Georgia Court of Appeals. It goes directly to Georgia’s Supreme Court for determination whether or not the Trial Court was correct in its ruling on the constitutional issues.