Switch to ADA Accessible Theme
Close Menu
Atlanta Criminal Defense Lawyers > Blog > Criminal Defense > Can Prosecutors Use “Character Evidence” to Convict You of a DUI in Georgia?

Can Prosecutors Use “Character Evidence” to Convict You of a DUI in Georgia?


As a general rule, a prosecutor is not allowed to put a defendant’s “character” on trial in Georgia. In other words, the government can present evidence to prove the defendant committed the alleged crime. But the state cannot achieve its goal by introducing evidence of unrelated “bad acts” simply in an attempt to prove the defendant is a bad person who “deserved” to be convicted of something.

But as with any general rule, there are exceptions. Indeed, when it comes to a criminal trial, a defendant can actually open the door for a prosecutor to introduce certain types of character evidence. And this can prove costly.

Defendant’s Statement He Was a “Law-Abiding Citizen” Opened the Door for Jury to Learn About Prior Conviction, Drug Use

A recent decision from the Georgia Court of Appeals, DaSilva v. State, offers a cautionary tale. In this case, the defendant was charged with DUI and two counts of vehicular homicide following a fatal traffic accident that took place in March 2019. The defendant elected to testify in his own defense at trial.

The defendant testified he was not intoxicated when the accident occurred. During direct examination, the defendant said that he woke up in the hospital after the accident and noticed his glasses were missing. The defendant required prescription glasses to drive. He could not remember the name of his optometrist, however, so he asked the judge if he could look up that information on his phone. The judge granted permission and said he would not even mind if the phone rang or beeped, which normally is not permitted in court. The defendant replied, “Well, I would like to say I’m a law-abiding citizen, sir.”

While that might sound like an innocuous comment, prosecutors jumped on it as a statement made–under oath–about the defendant’s character. The state therefore sought and received permission to introduce evidence to rebut or “impeach” the defendant’s testimony that he was a law-abiding citizen. Specifically, the prosecution introduced statements that the defendant made to medical personnel about his past cocaine use–an illegal act–as well as a 2006 conviction for DUI in Florida.

The jury subsequently found the defendant guilty on all charges. On appeal, the defendant argued the trial judge erred in allowing this impermissible “character evidence” to be used against him. The Court of Appeals disagreed. It held the evidence of prior drug use and criminal convictions was properly introduced to rebut a factual statement made by the defendant, i.e., that he was a law-abiding citizen.

Speak with the Georgia DUI Lawyers at Hawkins Spizman Today

Remember, you always have a constitutional right not to speak to the police or testify in court as a defendant in a criminal case. Cases like the one above demonstrate how speaking out on your own behalf can prove costly. That is why you should never make any statements–under oath or otherwise–without first consulting an experienced Georgia criminal lawyer.

The Georgia Board Certified DUI attorneys at Hawkins Spizman can review your case and advise you of your rights. Contact us today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.



Facebook Twitter LinkedIn