Very few jurisdictions offer preliminary hearings in Georgia DUI cases after a person has posted a bond and been released from custody. I have been able to get preliminary hearings on DUI cases in which my clients have been released from custody in Savannah and Columbus. It is, indeed, a rarity to obtain a preliminary hearings on misdemeanor DUI cases. However, when you have the opportunity, you should undoubtedly take advantage of these hearings.
First, what I have seen is that the lawyers in these jurisdictions often do not realize how fortunate they are. Many lawyers do not understand the tremendous advantage presented by having the option to preview the evidence in a DUI case with virtually no downside. The charges are not going to get worse (in the vast majority of cases), and by asking questions with virtually no downside, lawyers will frequently discovery that issues existed that would otherwise go undiscovered. Ask high-risk questions – even non-leading questions – at the preliminary hearing. DUI lawyers need not follow the time-honored limitations of asking only leading questions at the preliminary hearing.
Second, it is important to recognize what it is that the judge can do to the charges and the case at the preliminary hearing. Remember, most preliminary hearings involve felony charges, and the judges that hear preliminary hearings in DUI cases are comfortable telling the state and officers that they do not have enough evidence to obtain a conviction on a particular charge. So, while you may not win a probable cause (motion to suppress) hearing, you may very well win the preliminary hearing where the judge is free to say, “well, I do believe there is sufficient evidence to bind this case over to state court, but I do not believe that there is sufficient evidence to bind over more than a reckless driving charge.”
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