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Georgia DUI Motions Practice: The Basics


Today, I had to wait about 3 hours before my motions were heard on a DUI case in Fulton County(Atlanta) State Court. As I sat there, I was approached by another lawyer, not the prosecutor, about what I was doing with my case. We spoke briefly about what my motions were about, and he seemed puzzled as to why were even having a hearing. This isn’t the first time this has happened, and I have often wondered myself why I continually run my head into the proverbial wall known as DUI motions hearings. I have done seminar presentations on what the various uses of motions hearings in Georgia DUI cases are, and I have strong feelings about the need to pursue motions – even when there are no clear issues in the case. At the end of the day, the basis for my pursuit of motions when there are no clear suppression issues is simple and well-established in Georgia law.

The general rule of law governing this Court’s scrutiny of the warrantless search at issue in this case was stated by the Georgia Supreme Court in State v. Slaughter, 252 Ga. 435, 436, 315 S.E.2d 865 (1984):

Searches are conducted either with or without a search warrant. ‘The most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek … that the exigencies of the situation made that course imperative.’ ‘[T]he burden is on those seeking the exemption to show the need for it.” Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971)(citations omitted).

Because the burden is on those officers who conduct a search without a warrant to show that the search was conducted pursuant to an exception to the Fourth Amendment warrant requirement, it can be said that a search without a warrant is presumed to be invalid and the burden is on the state to show that the warrantless search was valid. Mincey v. Arizona, 437 U.S. 385, 390-391, 98 S.Ct. 2408, 2412-2413, 57 L.Ed.2d 290 (1978); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).

“Once a defendant files a motion to suppress alleging an illegal search and seizure, the state bears the burden of proving that the search is lawful.”  State v. Kuhnhausen, 289 Ga. App. 489, 657 S.E.2d 592 (2008), citing State v. King, 287 Ga. App. 680, 652 S.E.2d 574 (2007).

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The Sessions Law Firm
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Phone: 470-225-7710

About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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