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When Can the State Appeal a Georgia DUI Case?


If you are convicted of a criminal offense such as DUI, you have the right to file an appeal. The purpose of an appeal is not to retry your case. Instead, an appeal gives a defendant the opportunity to argue that certain legal errors made during the trial of their case justifies certain relief, such as a new trial or a dismissal of the charges against them.

You might be wondering: Can the state appeal? When it comes to an acquittal, the answer is no. If a judge or jury finds a defendant “not guilty,” the state cannot appeal or demand a new trial. But there are limited circumstances where the state can appeal certain evidentiary rulings made before or during the trial.

For example, in DUI cases it is common for a defendant to file a motion to suppress the result of a blood or breath test. If the trial judge grants this motion, the state is allowed to seek appellate review of that decision. This right to appeal is quite limited, however, and the state needs to follow strict rules to get a trial court’s decision overturned.

State’s Appeal Dismissed for Filing Under Wrong Section

This recent decision from the Georgia Court of Appeals, State v. Whitman, provides an apt illustration. In this DUI case, prosecutors sought to introduce evidence related to the defendant’s refusal to submit to a field sobriety test–specifically, a horizontal gaze nystagmus test. (This is where the police officer checks a suspect’s eyes for involuntary jerking motions, which can indicate intoxication or impairment.) To be clear, the issue was not whether the state could introduce the result of any such test, only of the defendant’s refusal to take it.

The defendant moved to exclude such evidence, arguing it would effectively punish him for exercising his right against self-incrimination. The trial judge agreed and ruled the prosecution could not introduce the defendant’s refusal as evidence at trial. The state filed an appeal of that decision.

But the Court of Appeals dismissed the appeal for lack of jurisdiction. The appellate court explained that the Georgia statute in question allows the state to appeal under one of two circumstances: (1) a trial court decision to exclude the result of an alcohol or drug test; or (2) a decision to exclude any other evidence to be used at trial aside from an alcohol or drug test.

In this case, the state filed its appeal under the first section. The Court of Appeals, however, pointed out that the trial court did not exclude the result of any tests, only the defendant’s refusal to take the test. The state therefore needed to file its appeal under the second provision covering “any other evidence.” While this may sound like a technicality, the courts take these kinds of jurisdictional questions quite seriously. So because the state did not file a timely appeal under the correct section of the law, its appeal was dismissed and the trial court’s decision stood.

Contact Hawkins Spizman Trial Attorneys Today

If you are facing criminal DUI charges, it is important to work with an attorney who will thoroughly scrutinize the state’s case against you and challenge the admissibility of any evidence that may have been illegally obtained. Our Georgia Board certified DUI defense lawyers can advise and represent you in such matters. Contact Hawkins Spizman 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.


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