Know Your Rights in a Criminal Case

Know Your Rights after an arrest in the Atlanta area.

If you are involved in a criminal case, it is important to understand and preserve your rights.  An experienced criminal defense attorney will be able to look at your case in detail, and make sure that you understand and are able to protect your rights.

FAQS for Atlanta Criminal Defense


What are my rights once I am placed under arrest?

You have the right not to incriminate yourself, which is also known as the right to remain silent.  This is an important right.  You may feel intimidated, but this right is there for your protection.  Use it. You have the right to be free of “unreasonable search and seizure,” though there are many exceptions to that right. You have the right to an attorney.  It is important to invoke this right at your arrest.  It can prevent interrogation by the police that may lead to harmful admissions.   It’s important to note, however, that your right to an attorney does not necessarily apply to your decision as to whether to take or refuse a Breathalyzer or blood alcohol test for DUI purposes. You also have the right to be advised by police about these rights, commonly called Miranda Rights.

When can the police conduct a search of my property?

There are rules that surround police searches. The police can search your home, property, car, or financial records if they have probable cause to believe that they’ll find evidence of a crime, and therefore receive a search warrant issued by a judge. But, there are some situations where the police can conduct a search without a warrant. One example is wher potential evidence is sitting out in a place where there is “no reasonable expectation of privacy.”  It is important to know that the police also don’t need a warrant if you voluntarily agree or consent to a search. Again, you will likely waive your right for the police to have to obtain a search warrant if you consent to a request to search! Many people have let the police search when they did not have to, because they didn’t know they had the right to refuse. There are, doubtless, people sitting in prison today that would not be there had they not consented to a search of their home, car or person.  It is easy to make a mistake and harm your case, but a criminal defense attorney will be able to give you the explicit details of search and seizure laws as they pertain to your case.

Do the police have to read me my rights?

If you are a suspect, the police are required to read you your Miranda rights before conducting a custodial interrogation. Although what a “custodial interrogation” continues to be argued in a variety of appeals,  it is clear that not all discussion between the police and a suspect is “interrogation.” Once a custodial interrogation begins, the police must read the suspects his or her rights and ensure that they are understood.

What happens if the police don’t read me my rights?

A lot of people erroneously think that if the police don’t read them their rights, the charges are dismissed. This is generally not true. However, if a suspect is interrogated in custody without being read their rights, then the statement they make may be excluded as evidence.

To discuss these answers in more detail, or to discuss your specific case, call (770) 471-4040 for your free consultation, or send us a message and we will be happy to contact you.


How Do I get My Criminal History Erased?


General rules for Expungement in Georgia


I cannot count the number of times I get calls from clients that are desperate to get an arrest removed from their criminal history.  Often, they are having routine background checks performed at work and want to avoid the embarrassment of having to answer questions about an old arrest.  Worse, some are actually trying to get a job and know that an employer may consider an arrest when choosing between candidates for a job.


Fortunately, the State of Georgia sets out a statutory process by which you can get an arrest removed from your criminal history. 

Unfortunately, the prosecuting agency for the county of arrest gets to make the decision whether or not you qualify for expungement, and you have to meet certain qualifications to be successful.


The Official Code of Georgia section 35-3-37 tells you that you have the right to expunge an arrest where no indictment or accusation has been filed against you if you meet the following criteria:

  • The charge has to have been dismissed (again, for this right to apply the dismissal must take place before an indictment or accusation is filed)
  • No other criminal charges can be pending
  • Within the last five years, you cannot have been convicted of the same or similar offense anywhere.


This means that the Prosecutor has no choice in the matter and your record will be cleared.

However, if your case was dismissed after being Indicted or Accused, more conditions must be met. 

The law in Georgia states:

“After the filing of an indictment or an accusation, a record shall not be expunged if the prosecuting attorney shows that the charges were nolle prossed, dead docketed, or otherwise dismissed because:
      (A) Of a plea agreement resulting in a conviction for an offense arising out of the same underlying transaction or occurrence as the conviction;
      (B) The government was barred from introducing material evidence against the individual on legal grounds including but not limited to the grant of a motion to suppress or motion in limine;
      (C) A material witness refused to testify or was unavailable to testify against the individual unless such witness refused to testify based on his or her statutory right to do so;
      (D) The individual was incarcerated on other criminal charges and the prosecuting attorney elected not to prosecute for reasons of judicial economy;
      (E) The individual successfully completed a pretrial diversion program, the terms of which did not specifically provide for expungement of the arrest record;
      (F) The conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court of this state, the United States, another state, or foreign nation; or
      (G) The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution.”


As you can see, there are a laundry list of conditions that the Prosecutor can site as reason not to grant the request.

Should the Prosecutor not grant the request there is still hope.  Georgia law provides that an appeal of the prosecutor’s decision is possible if brought within thirty days to the Superior Court of the county where the arrest occured.

Clearly, there are a number of pitfalls that may occur when trying to clear your record.  Ultimately, you may discover that an expungement is not the best option for your situation.  There is still hope though, as an expungement is but one of many options available through Georgia and sometimes even Federal law. Contact the Law Offices of Vernon Smith today for your free consultation and discover which option works best for you.