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What
are the Georgia DUI DWI Laws?
GENERAL INFORMATION: Substantial,
significant changes in Georgia’s laws went into effect on
April 21, 1995, August 18, 1995, July 1, 1996, September 1, 1996,
July 1, 1997, March 27, 1998, May 1, 1999, May 1, 2000, and July
1, 2001. Other major changes occurred in each of the previous
seven (7) years. This summary provides information for drivers
arrested July 1, 2001, and after. [See the charts accompanying
this summary of Georgia law for comparable penalties for arrests
made prior to July 1, 2001.]
This Summary of Georgia DUI law only pertains to
the criminal offense of DUI. Any administrative (non-criminal)
license suspension penalties are covered in the section on administrative
suspensions. As a general rule, if a person age 21 and over suffers
an administrative license "suspension" penalty under
Georgia’s administrative suspension statute, credit for
time under suspension is given for any later license suspension
that may result from a conviction on criminal charges. The new
"revocation" rules for persons under age 21 at the time
of arrest will not permit similar treatment for these drivers.
This Summary also covers the JUDICIAL penalties
for the criminal offense of DUI. Many other non-judicial penalties
will inevitably follow a DUI nolo contendere plea, guilty plea
or conviction. These can include increased insurance cost (or
cancellation of coverage), inability to rent cars, restrictions
on travel to other countries, loss of security clearance, job
barriers, possible loss of professional credentials or certifications,
etc. These non-judicial or economic penalties are not addressed
in this Summary. At your FREE interview, these issues will be
addressed.
In two different ways, Georgia law permits
prosecution of persons who are DUI-alcohol:
TWO TYPES OF DUI-ALCOHOL: In a
"traditional" DUI case, the State must prove that the
driver was a less safe driver as a result of alcohol consumed.
This type of case can be pursued even if no alcohol content test
result exists from a blood, breath or urine test. A test result
would not exist, for example, when a person had refused testing.
Whenever a person has taken a blood, breath, or urine test, the
State also will attempt to introduce evidence of the quantitative
result. To "help" the prosecutor prove "less safe"
driving, the legislature passed a law that permits a prosecutor
to benefit from certain "legal" inferences about any
alcohol "level" if proven in court. Under prior law
(before July 1, 2001) a blood alcohol level of 0.08% or higher
was the level of "inferred" impairment for all drivers.
A change in the wording of the law appears to have eliminated
that “inference,” which gave the prosecutor an advantage
at trial. Georgia law also sets forth other "inferences"
in the law, including the fact that persons who have a blood alcohol
level of .05 or under are inferred (presumed) to NOT be impaired
by alcohol. However, the State can attempt to refute that inference
("presumption") of non-impairment by other proof (e.g.,
a collision, atrocious driving, disregard for the safety of others,
slurred speech, etc.). If a person is 0.06 or 0.07, neither the
driver nor the prosecutor is given the benefit of an "inference."
In other words, "the BAC number" does not receive a
legislated "inference" for EITHER side.
The second way that the State may attempt to prove
some DUI cases [where there is a chemical sobriety test result
(blood, breath or urine) over the applicable legal limit] is known
by lawyers as the "per se" DUI-alcohol offense. It would
be more accurate to call this driving with an unlawful blood alcohol
level. To prove this type of DUI-alcohol, the State does not need
to prove any "less safe" driving or any "drunken"
condition. The offense is committed simply by having an unlawful
blood alcohol level and "operating" an automobile. For
persons charged under paragraph 5 of subsection "a"
of the DUI law (the adult standard), the prohibited "level"
is 0.08 grams % or more. Before July 1, 2001, the adult standard
was 0.10 grams % or more. For persons charged under subsection
"k" (for drivers under age 21 at the time of the arrest
who take a blood or breath alcohol test), the "per se"
limit is now only 0.02 grams % (as little as one drink). For persons
charged under subsection "i" of the DUI code (for persons
driving a commercial vehicle who take a blood or breath alcohol
test), the "per se" level is 0.04 grams %. For all "per
se" calculations, the State is allowed to use a test taken
by police within three (3) hours of driving, when the alcohol
in the person’s system was consumed BEFORE the driving ended.
Hence, when there is a blood, breath or urine test
result "in evidence," there are two separate ways that
the State may seek to prove a DUI case: (1) by proving less safe
driving ability, utilizing a test result, if available (and the
inferences discussed above) or proceeding on other evidence in
the case, such as driving conduct, field sobriety tests, smell
of alcohol, etc., or (2) by proving that the person was driving
with an unlawful blood alcohol level. This method of proving DUI-alcohol
requires a blood, breath or urine test. In refusal cases, the
State usually can only pursue and prove a "less safe"
DUI-alcohol case since no chemical test result is available to
prove the blood alcohol level.
A DUI Conviction is Forever
A DUI conviction or plea of "guilty" or
nolo contendere will be a permanent part of your driving record
and your criminal history. It does not "come off" your
record after five (5) years... it never comes off your record.
Moreover, a conviction, guilty plea or nolo contendere plea is
reported to the Georgia Department of Public Safety, which in
turn, reports it to the National Driver’s License Registry.
These computer records are accessible to driver’s licensing
agencies nationwide. This is why fighting a DUI case is so important
to so many persons charged with this offense.
Special Note to Non-Resident Licensees (Persons
Licensed by a State Other than GEORGIA)
Any non-resident driver’s home state driver’s
license agency (DMV, DPS, etc.) will receive a notice from the
Georgia Department of Public Safety if any license suspension
or case disposition (conviction or nolo contendere plea) occurs
in Georgia and the non-resident license is involved. In almost
all cases, a nolo plea or a guilty plea or guilty verdict in a
criminal case for DUI in the State of Georgia will cause a suspension
to occur in the non-resident’s home state. A "not guilty"
verdict or other non-DUI disposition of the case through pre-trial
negotiations by your attorney will prevent such consequences.
Often, an administrative license suspension (which typically occurs
before the criminal case is heard) will not cause a suspension
of privileges in the non-resident driver’s home state.
Legal Limits of Alcohol Concentration –
Three Different Standards
An alcohol content reading of 0.02 BAC is the level
for per se (unlawful alcohol level) intoxication for persons under
the age of 21 at the time of arrest who are accused of violating
subsection "k" of the DUI code. This means that if you
are under 21 years of age and submitted to the state’s test
and the result was 0.020 or higher, you may be accused of driving
with an unlawful blood alcohol level under subsection "k"
plus be accused of "DUI - Less Safe" under paragraph
1 of subsection "a," based on other evidence (including
manifestations of impairment, driving conduct, or other evidence).
An alcohol content reading of 0.04 BAC is the level
for per se (unlawful alcohol level) intoxication for persons accused
under subsection "i" of the DUI code that were stopped
while operating a commercial vehicle. This means that if you submitted
to the state’s test and the result was 0.04 or higher, you
may be accused of driving a commercial vehicle while having an
unlawful blood alcohol level. If a driver is stopped in a commercial
vehicle and the State’s test reveals ANY alcohol, a 24-hour
out-of-service order will be issued, and the truck will be impounded
until said time period is over.
An alcohol content reading of 0.08 is the level
for per se (unlawful alcohol level) intoxication for persons who
are age 21 and older and accused of violating subsection 40-6-391(a)(5)
of Georgia law. The prosecutor, however, must be able to prove
that the test given was a valid test, and that it was taken within
three (3) hours of driving or being in actual physical control
of a vehicle, from alcohol consumed PRIOR TO the driving of the
vehicle ended. This means that if you submit to testing and yield
a result over 0.079, you will be accused of driving with an unlawful
blood alcohol level under subsection "(a)(5)." No evidence
of "bad driving" or visible signs or manifestations
of impairment is REQUIRED to obtain a conviction for this type
of DUI.
DUI – "drugs" and DUI –
"alcohol and drugs"
Other than the two methods of proving DUI-alcohol
for the various "types" of vehicles or drivers, Georgia
law also provides for prosecution of other types of "impaired"
driving. A person can be prosecuted for driving under the influence
of alcohol and drugs, or drugs (prescribed or non-prescribed),
or DUI contraband (illegal) drugs such as marijuana or cocaine.
If the person is accused of being DUI by multiple “substances”
(example: alcohol in one “count” and drugs in a different
“count”), the jury (or judge --- if a non-jury trial)
can convict on both and two sentences can be imposed.
DUI – "toxic vapors"
Since July 1, 1996, Georgia has had a new type of
DUI: DUI toxic vapors (from common substances such as paint thinner,
lacquer, varnish, etc.). This type of intoxication requires proof
of INTENT to inhale these vapors. Hence, occupational "intoxication"
may result in prosecution for DUI "toxic fumes." [NOTE:
a BREATH testing device cannot accurately measure these vapors.
A blood test is the only approved type of implied-consent test
presently available to quantify the toxicity and effects of such
vapors.]
Depending on the type of evidence available (i.e.,
from a blood test), a prosecutor can proceed on any or all of
these "types" of DUI. One type of DUI allows any combined
impairment from any two of the prohibited chemicals: (1) alcohol,
(2) drugs, or (3) toxic vapors.
What Does the Five-Year "Look-back"
Period Relate to?
"Repeat offender" status for MANDATORY
increased minimum punishment in DUI cases is determined in Georgia-based
upon a five-year "look-back" period. This status is
used for purposes of increased mandatory minimum punishment. This
"look-back" period has nothing to do with how long a
DUI remains on your record. In deciding the extent to which a
repeat offender should be punished, most judges will look at a
person’s lifetime record, not just the five-year "look-back"
period. Also, Georgia law requires out-of-state convictions to
be considered as “priors,” in the same manner as Georgia
convictions. The last pages of this Summary are GRIDs that set
out in handy charts the MANDATORY MINIMUM punishment for DUI cases
in which the arrest was made on July 1, 2001, and after. A side-by-side
comparison to prior law is also shown in these three pages (for
arrests occurring before July 1, 2001).
Whenever the five-year "look-back"
period is discussed herein, the method of counting is as follows:
1) take the DATE OF ARREST for the previous DUI
offense (not the disposition or plea date);
2) the prior DUI "counts" against you, whether it was
disposed of as a plea of guilty, or with a trial that resulted
in a "guilty" verdict or where a nolo contendere plea
was ultimately accepted; and
3) take the DATE OF ARREST in the current case, and determine
if more than five full years have expired.
Due to the SEVERE increased punishment for repeat
offenses within the five-year “look-back” period,
obtain precise dates of any prior drunk driving convictions before
your initial visit to our office.
A bad record can come back to haunt a person facing
a current DUI charge. Remember that a judge can ignore (and many
do) the five-year “look-back" period and review your
ENTIRE record for purposes of:
a) increasing your punishment (up to the maximum
penalties set by law) over that punishment which he/she would
give another person with no prior record;
b) at your trial, allowing the prosecutor (in some instances,
after notice and a pre-trial hearing) to introduce evidence of
prior instances where you were convicted of driving while impaired,
or even plead guilty or nolo contendere to a driving under the
influence charge. The prosecutor may attempt to bring in evidence
from any DUI case, even those cases greater than five years old
and those from other states. This is called "introducing
evidence of similar transactions." Some judges will not readily
admit similar transaction evidence from other DUI cases, due to
its tremendous prejudicial harm to the current case. Other judges
routinely permit prior transaction evidence into the current case;
and
c) not allowing a nolo contendere plea even where otherwise eligible
for this special plea (a valuable right, for civil damages consequences,
if an accident has occurred).
The counting of "first," "second,"
etc., relates to which offense this is within the five-year "look-back"
period. This determines minimum punishment that must be assessed
if a guilty verdict or plea is entered, or (if available) upon
entry of a nolo contendere plea.
SPECIAL NOTE FOR ANY CONVICTION OF DUI OR PLEA OF GUILTY
OR NOLO CONTENDERE: The sentencing court has broad powers
at sentencing insofar as whether to grant "probation,"
rather than put the person convicted in jail. Furthermore, if
probation is granted (in lieu of jail time), the conditions of
probation can be extremely onerous and restrictive. Moreover,
all jurisdictions charge monthly "supervision" fees
so that the person pays for his/her probationary sentence. Georgia
law requires that the balance of 12 months of probation (deducting
for any jail time imposed) on every DUI conviction. The judge
imposing the sentence can require “reporting” or “non-reporting”
probation after other conditions of the sentence are met. This
can not only lower total costs (most non-reporting months are
not assessed a supervision fee), but can eliminate time-consuming
visits or call to a probation officer. Caution: Even non-reporting
probation --- if violated --- can result in a revocation of all
or part of the remaining term of probation. This means being put
in jail, or some alternative form of incarceration (examples:
work-release confinement, home confinement, alcohol and drug residential
facility). The length of supervised probation is optional with
the judge, up to the length of the maximum amount of jail time,
minus any days spent in jail.
DUI First offense: Considered to be a "Simple Misdemeanor"
under Georgia law
[NOTE: No person who has had a
prior nolo contendere plea or guilty plea or verdict within the
five-year "look-back" period is eligible to receive
the benefits of a nolo contendere plea. A nolo plea is unavailable
for persons arrested July 1, 1997 or after who take a State test
and have a result higher than 0.15%. Also, drivers under age 21
at the time of arrest are completely ineligible for "nolo"
treatment.]
Fine: $300-$1,000 (plus statutory surcharges,
fees and assessments which can add 20% to 25% to the fine amount).
Jail: 10 days to 12 months (all jail time but 24
hours of the sentence may be suspended, stayed, or probated).
The only persons who may avoid the 24 hour mandatory jail sentence
are first offenders who had a chemical test (blood, breath, or
urine) of less than 0.08 grams %. The new law will be applied
by each judge, and therefore, a person who refused testing may
be eligible for (but not necessarily ENTITLED to) a "no jail
time" sentence. All others who are convicted must go to jail.
Drivers under age 21 convicted of a first offense under subsection
"k" may be allowed to serve their sentence on weekends
or during their non-working hours and they must be segregated
from the general jail population. This separation from other prisoners
applies to the first offense only.
Community Service: A minimum of
40 Hours of Community Service is MANDATED, but persons under 21
with a first offense under subsection "k" of the DUI
code and who have a BAC level of less than 0.08 grams % must perform
not less than 20 hours. The exact number of hours is set by the
sentencing judge. Some courts prefer that community service hours
be completed before a plea is taken.
Probation: 12 months, less any
days of actual incarceration, if the defendant is sentenced to
less than 12 months imprisonment.
Risk Reduction Program (DUI Driving School): Mandatory
participation in a 20-hour program approved by the Department
of Human Resources at an approximate program fee of $175 plus
an assessment fee of $75. [The minimum class enrollment hours
changed to 20 hours for all cases arising May 1, 1999 and after.]
License Suspension: For those 21 and over when arrested,
a one-year suspension, but a "work permit" is available
to first offender adults if the driver has a Georgia license.
After 120 days and completion of the DUI driving school course,
application for reinstatement by drivers 21 and older is possible.
Therefore, 120 days after conviction, adult first-offenders may
apply to the Department of Public Safety for possible early reinstatement
of his or her license by submitting proof of completion of the
Risk Reduction Program and paying a reinstatement fee in the amount
of $200 (mail-in) or $210 (walk-in).
Can I Plead "Nolo Contendere"?
The eligibility rules for the use of a nolo plea
for non-residents are now the same as for residents. A nolo contendere
plea will not "save" a Georgia license for any arrests
made July 1, 1997 or after. The individual judge decides whether
he/she will accept a nolo plea. Any person who has a BAC test
of over 0.15 cannot plead nolo. Any person under age 21 who was
stopped July 1, 1997 or after and charged with DUI is totally
ineligible. Before July 1, 1997, drivers under age 18 were ineligible.
In addition, for persons licensed by a state other than Georgia,
a nolo contendere plea generally will not "save" your
license, absent some special law in your home state that permits
this. Upon receiving a report of a DUI conviction in Georgia,
the home state will routinely suspend or revoke the person’s
license in their home state. So, a nolo contendere plea for licensees
of states other than Georgia is generally no better than a guilty
verdict at trial, or a plea of guilty. This puts a premium on
winning the case, or obtaining a non-DUI disposition through negotiations
with the prosecutor.
A plea of nolo contendere is always discretionary
(optional) with the judge handling the case. It is often unavailable
in the event of a refusal to submit to a chemical sobriety test
at the time of arrest since many judges will not accept a nolo
for "refusal" cases. A nolo is also unavailable to any
person who has had a prior guilty plea or verdict or a prior plea
of nolo contendere to DUI in the past five (5) years. The DUI
bill which became effective July 1, 1997, eliminated the "license
saving" aspect of the nolo plea which many Georgians previously
sought. Now, even if a nolo plea is accepted for "civil"
liability reasons, a Georgia driver’s license (or entire
privilege to drive in Georgia, for non-resident licensees) will
be lost.
The Judge May Always Refuse to Allow "Nolo"
Treatment
Most judges now require a copy of your lifetime
driving record. In addition, many judges want to know your record
in prior states of residence. Even one prior DUI will cause some
judges to deny nolo treatment. Sometimes a bad driving history
(with no prior DUIs) will cause a judge to deny this plea alternative
and will cause the judge to punish more severely.
IN SUMMARY, OFFENDERS WITH A BAC OF .15 OR MORE
CANNOT PLEAD NOLO. NOLO TREATMENT IS ALWAYS OPTIONAL WITH THE
JUDGE, BUT CANNOT BE PERMITTED FOR A PERSON WHO HAS A PRIOR DUI
WITHIN FIVE (5) YEARS. FURTHERMORE, LICENSE SUSPENSION (OR REVOCATION
FOR DRIVERS UNDER 21) IS MANDATORY. FOR DRIVERS UNDER 21 AT THE
TIME OF ARREST, A NOLO CONTENDERE PLEA IS UNAVAILABLE. FINALLY,
AFTER JULY 1, 1997 THE "LICENSE SAVING" ASPECTS OF A
NOLO PLEA NO LONGER EXIST.
Special License Revocation Rules for Underage
Drivers
The disposition of the offender’s license
(if convicted) is dependent on the person’s age. Persons
under 21 suffer a "revocation" of their license, if
arrested prior to July 1, 2001. Drivers under 21 (arrested prior
to July 1, 2001) who have a DUI conviction will be revoked for
either six (6) or 12 months, and have NO PERMIT WHATSOEVER. This
revocation period is usually for 12 months, but can be for six
(6) months for persons under 21 with a first DUI offense and a
BAC under 0.08 grams %.
The 2001 legislative changes altered the law relating
to drivers under 21 in only one respect: the “revocation”
was changed to a “suspension.” From a practical perspective,
this change prevented drivers from having to start over with all
driver’s license applications, testing, etc., as is required
with any revocation. The license bureaus will be relieved of this
needless, extra work. For all other purposes, the under 21 driver
cannot drive for either six (6) months or 12 months, and receives
no “work permit.” A "revocation" differs
from a "suspension" in that a revocation totally voids
all driving privileges plus totally eradicates a Georgia license.
A person under 21 who is "revoked" (applicable to arrests
made prior to July 1, 2001) must start completely over with the
entire Georgia driver’s license process, eye exam, driving
test, etc.
The change in 2001 (applicable to all cases disposed
of July 1, 2001, or later), permits this to be a suspension, or
an “interruption” of driving privileges for six (6)
to 12 months. The revocation (or suspension, for arrests July
1, 2001, and after) will not be lifted until proof of completion
of the Risk Reduction Program is received and a reinstatement
fee in the amount of $200 (mail-in) or $210 (walk-in) is paid.
Then, the suspended driver must complete driving school (risk
reduction) and pay the required reinstatement fees. The obligation
of filing this paperwork in a timely and complete manner is on
the licensee. No driving may occur --- ever --- until reinstatement
has been achieved.
DUI Second Offense/Guilty Plea or Being
Found Guilty at Trial (Simple Misdemeanor)
Fine: $600-$1,000 (plus statutory surcharges, fees
and assessments, which typically adds 20% to 30% to the fine amount).
Jail: 90 days to 12 months. All but 72 continuous
hours of jail time may be suspended, stayed or probated. Seventy-two
(72) continuous hours in jail is MANDATED. However, a few judges
will consider (in the right case and with the right witnesses
and proof) permitting all or part of the court-ordered "jail"
time to be served at either (a) a halfway house (where treatment
for alcohol or drugs is available) or "work release"
program; (b) a "detention" drug/alcohol treatment [in-house]
facility; or (c) by way of "home detention," whereby
you must be at home and respond to monitoring and testing whenever
you are not at work, treatment, etc. The judge decides whether
this will be an alternative sentence available to you, for all
or part of your sentence, and (if so) he/she may set the rules
of when you must be at home. If available, any alternative to
traditional jail time is a matter of planning by the attorney
and client, and is usually subject to "negotiations"
between the prosecutor and the defense attorney which are later
implemented by the judge into a formal, written order or "sentence."
The remainder of the sentence may be suspended, stayed or probated—at
the judge’s discretion. Persons under 21 convicted for a
second offense within five years under code sections ("a,"
"i," or "k") have no statutory protection
that requires segregation from the general jail population, where
a repeat offense exists.
Community Service: Not less than
thirty (30) days of Community Service is MANDATED in all cases.
Probation: 12 months of probation,
less any days of actual incarceration if the defendant is sentenced
to less than 12 months imprisonment.
Mandatory Alcohol and Drug Assessment and Treatment
(if dictated by the assessment): Every repeat offender undergoes
a clinical evaluation and must follow all treatment recommendations.
Also, every repeat offender must participate in a 20-hour Risk
Reduction program approved by the Department of Human Resources
at a program fee of approximately $175 plus an assessment fee
of roughly $75.
License Suspension: For adults convicted under subsection
"a," a three-year suspension. Not even limited driving
privileges can be reinstated for 12 months. For persons under
age 21 convicted under subsection "k," an 18-month suspension
of license applies to all offenders, with no work permit at all
and no chance for ignition interlock during this 18-month period.
All offenders (those over 21 or under 21) must also be completely
finished with all alcohol and drug treatment before they can qualify
for return of the plastic license. However, unless all alcohol
and drug treatment is completed, no license can be reinstated,
but a limited “work permit” may be available. Therefore,
12 months after conviction, "adult" offenders may apply
to the Department of Public Safety for restricted driving privileges
by submitting proof of completion of the Risk Reduction Program,
plus proof of completion of alcohol and drug treatment, and paying
a reinstatement fee in the amount of $200 (mail-in) or $210 (walk-in).
Then for not less than six (6) months, all of the offender’s
vehicles (if used for personal use or work) must be fitted with
an ignition interlock device which prevents the car from running
when the driver’s breath has any alcohol on it.
Photo Published in Newspaper: In conjunction
with a second or subsequent conviction, a notice of conviction
will be published in the local newspaper including:
• Photograph of offender taken at time of
arrest.
• Name and address of offender is given.
• Date, time, place of arrest and disposition of the case.
The offender is assessed an additional $25
fee to be paid to the Clerk of Court at sentencing to cover the
cost publishing the photograph in the local newspaper ("the
legal organ").
The size of the photo and written notice
that accompanies it is one column wide by two inches high.
NOTE: This "photo publication"
punishment is applicable to second or subsequent offenders whose
new arrest occurs on or after May 1, 1999.]
Ignition Interlock Devices (Mandatory): For all
second and subsequent offenders in a five-year period, a court
will order the installation of ignition interlock device for a
six-month (or longer) period. The judge can either order an ignition
interlock device 12 months after the conviction; or rule that
the offender is not eligible for an ignition interlock device
which means that the offender's license will be suspended for
the full 18 months with no limited permit. The cost of installation
and maintenance of an interlock device is paid by the offender.
The device prevents an offender from starting his/her vehicle
without first blowing into a breath tube. The device "sounds"
an alarm periodically while the vehicle is running, and the offender
must blow into the device again. Otherwise, the vehicle stops.
This device prevents any driving after consuming alcohol. The
device has a computer database that will later be downloaded and
will indicate when any “positive” alcohol readings
were obtained. This may lead to full license suspension for the
entire three (3) years, and could result in a revocation of probation.
NOTE: Georgia’s appellate
courts have not ruled on whether this "ignition interlock"
punishment is retroactive, or only applicable to cases made July
1, 2001, and after. Some judges are adding an ignition interlock
requirement to ALL convictions, by judicial decree --- including
FIRST offenders.]
License Plate Confiscation: The new 2001 legislation,
applicable to ALL second offenders (using five-year “look-back”)
requires the court handling the case to confiscate ALL license
plates for ALL vehicles in the convicted person’s name.
This includes co-owned vehicles. Limited provisions exist whereby
a co-owner or family member may seek to use the car, but a motion
must be filed and a hearing must be held. If hardship is granted,
a special “DUI” tag is issued.
DUI Third Offense/Guilty Plea or Being Found
Guilty at Trial (High and Aggravated Misdemeanor)
Fine: $1,000-$5,000 (plus statutory surcharges and
assessments, which typically adds 20% to 30% to the fine amount).
For third offenders, special provisions exist for "economic
hardship" cases, whereby a judge can reduce fines by half
(conditioned upon the offender undergoing an alcohol or drug treatment
program). In addition, the judge can set up an "installment"
payment for fines and court costs.
Jail: For third offenders, 120
days to 12 months. All but 15 days of “actual detention”
may be suspended, stayed or probated. Fifteen (15) days in jail
is MANDATED. However, a few judges may consider [in the right
case and with the right witnesses (e.g., alcohol rehabilitation
counselors) and other proof] permitting all or part of the court-ordered
"jail" time to be served at either (a) a halfway house
(where treatment for alcohol or drugs is available) or “work
release” program; (b) in a “detention” drug/alcohol
treatment [in-house] facility; or (c) by way of "house detention,"
whereby you must be at home and respond to monitoring and testing
whenever you are not at work, treatment, etc. The judge decides
whether this will be an alternative sentence available to you,
or all or part of your sentence, and (if so) he/she may set the
rules of when you must be at home. If available, any alternative
to traditional jail time is a matter of planning by the attorney
and client, and is usually subject to "negotiations"
between the prosecutor and the defense attorney which are later
implemented by the judge into a formal, written order or "sentence."
The remainder of the sentence may be suspended, stayed or probated—at
the judge’s discretion. Persons under 21 convicted under
code sections ("a," "i," or "k")
have no statutory protection that requires segregation from the
general jail population, where a repeat offense exists.
Community Service: Not less than
30 days of Community Service is MANDATED. Some judges translate
"days" to mean 30 eight-hour workdays (240 hours) while
one or two translate this into 30 24-hour days (720 hours) of
"service."
Probation: 12 months, less any
days of actual incarceration, if the defendant is sentenced to
less than 12 months imprisonment.
Mandatory Alcohol and Drug Assessment and Treatment:
Every repeat offender undergoes a clinical evaluation and must
follow all treatment recommendations. Also, every repeat offender
must participate in a 20-hour Risk Reduction program approved
by the Department of Human Resources at a program fee of $175
plus an assessment fee of $75.
License Revocation: Five-year license
revocation, and the offender is declared a “Habitual Violator.”
Adult offenders may apply for a probationary license after two
(2) years of the five-year revocation period provided that stringent
reinstatement requirements are met. Included in these requirements
is mandatory installation and maintenance of an ignition interlock
device at the owner’s expense. This will be for a minimum
of six (6) months. Offenders should contact the Department of
Public Safety for specific requirements, or ask his/her legal
counsel. Persons under 21 are also revoked for five (5) years
and are eligible for the ignition interlock device after 24 months.
They must wait the full 30 months before seeking a “probationary”
license. All other conditions for reinstatement must be met, too
(e.g. drug and alcohol treatment, risk reduction school, etc.).
Photo Published in Newspaper: In conjunction
with a second or subsequent conviction, a notice of conviction
will be published in the local newspaper including:
• Photograph of offender taken at time of
arrest.
• Name and address of offender is given.
• Date, time, place of arrest and disposition of the case.
The offender is assessed an additional $25
fee to be paid to the Clerk of Court to cover the cost publishing
the photograph in the local newspaper ("the legal organ").
The size of the photo and written notice
that accompanies it is one column wide by two inches high.
NOTE: This rule has been applicable
to third offenders within a five-year period for several years,
and applies in all cases.]
Ignition Interlock Devices (Mandatory): A court
will order the installation of an ignition interlock device for
a six month (or longer) period. The ignition interlock permit
begins when the adult offender obtains his/her probationary license
(two years after the conviction). No person under age 21 at the
time of conviction can take advantage of using early reinstatement
and installation of the ignition interlock device. He or she must
wait 30 full months. After the expiration of the six-month ignition
interlock period, the adult offender may apply for a habitual
violator probationary license without an ignition interlock device
condition. The cost of installation of an interlock device is
paid by the offender. The device prevents an offender from starting
his/her vehicle without first blowing into a breath tube. The
device "sounds" an alarm periodically while the vehicle
is running, and the offender must blow into the device again.
Otherwise, the vehicle stops. This device prevents any driving
after consuming alcohol. The device has a computer database that
will later be downloaded and will indicate when any “positive”
alcohol readings were obtained. This may lead to full license
suspension for the entire three (3) years, and could result in
a revocation of probation.
SPECIAL NOTE: The new ignition
interlock law [applicable to second or subsequent DUI offenses
within five (5) years] went into effect May 1, 2000, and was amended
July 1, 2001. It applies to repeat DUI offenses which occur within
a five-year period. Another existing law, however, mandates that
if a person is convicted of a THIRD OFFENSE in five years, the
person’s license is revoked for five years. The limited
permit (called a “probationary license”) is not automatically
available to adult third offenders. Certain “verifications”
from the driver are required and “hardship” must be
shown.]
NOTE: Georgia’s appellate
courts have not ruled on whether this punishment is retroactive,
or only applicable to cases made July 1, 2001, and after. Some
judges are adding an ignition interlock requirement to ALL convictions
--- including FIRST offenders --- by judicial decree.]
License Plates Confiscated (Mandatory): If the vehicle
in which the DUI arrest was made was titled in the offender’s
name, its tag will be confiscated and turned in to the local tag
office along with any other vehicle tags belonging wholly or partially
by offender. If the offender was driving a vehicle owned by someone
else, tags belonging to all of the vehicles owned or co-owned
by the offender will be "sanctioned and confiscated."
Sale or transfer of any "sanctioned" vehicle(s) will
be done only with the approval of the State Revenue Commissioner,
after proper application and hearing.
SPECIAL CAUTION: UPON A FOURTH CONVICTION
WITHIN FIVE YEARS, HABITUAL VIOLATORS CAUGHT DRIVING ANY VEHICLE
--- DRUNK OR NOT --- CAN HAVE THEIR MOTOR VEHICLE SEIZED BY THE
STATE AND SOLD (FORFEITED). ADDITIONALLY, SUCH CONDUCT TYPICALLY
WOULD BE CHARGED AS A FELONY OFFENSE.
Drug Offenses and DUI-Contraband
While a DUI offense involving drugs may be prosecuted
by the State even where the drugs are prescribed by a physician,
special rules apply to DUI-contraband cases. These cases involve
illegal substances (marijuana, cocaine, heroine, etc.) in the
driver’s blood system. The DUI offense here is based upon
driving while having an unlawful substance in your blood system.
Although this issue is currently on appeal, the prosecutor is
not currently required to prove impairment caused by the illegal
contraband drugs in your system. Mere proof of the presence of
a contraband substance or its "metabolites" is sufficient
to render a conviction. However, recent case law (Love v. State)
holds that if a person has marijuana present in his/her system,
the State must prove that the person was rendered incapable of
driving safely as a result of using the marijuana. This is true
because someone could legally have traces of marijuana in his
or her bloodstream (e.g. coming into Georgia on a flight from
Amsterdam where use of marijuana is legal), so that the law is
overly broad in its scope.
Beyond the misdemeanor DUI-contraband penalties
set forth above, Georgia law has other more punitive statutes
for possession of drugs when marijuana or other drugs are found
in a vehicle or someone’s pocket. A "possession"
offense may be committed by a person driving a car, or by a person
not operating a car. Other drugs are often found in the person’s
pockets or in the vehicle. As covered hereafter, your driver’s
license can and will be suspended upon a guilty plea or a conviction
for possession of drugs, EVEN IF you were not driving when arrested.
This law has been upheld by the Georgia Supreme Court after an
appeal on challenges to its constitutionality.
First Conviction on Possession of Controlled
Substance (Felony) or Marijuana (Misdemeanor or Possible Felony
depending upon if a repeat offense and quantity)
Fine: Up to $1,000 for marijuana/Court’s
discretion for other controlled substances (like heroin, cocaine,
etc.).
Jail: 1 - 15 years depending on
the substance.
Community Service: Up to 12 months
of Community Service for possession of marijuana.
License Suspension: 180-day minimum. 181 days after
conviction, offenders may apply to the Department of Public Safety
for possible early reinstatement of driving privileges by submitting
proof of completion of a Risk Reduction Program and paying a reinstatement
fee in the amount of $200 (mail-in) or $210 (walk-in). No "work"
permit whatsoever is allowed for "drug" offenders.
These are minimum sentences for a first offense
on possession of a controlled substance. Driving a car while in
possession of these controlled substances is not an element of
the offense. In other words, the person can be standing inside
a building and be in possession of marijuana or other controlled
substances and lose driving privileges. Additional penalties may
be set at the discretion of the judge/court depending on the severity
of the offense and substance. Depending on the quantity of drugs
and whether the current charge is a first offense may determine
whether the case will be a felony or a misdemeanor.
Second Conviction on Possession of Controlled
Substance or Marijuana (Felony)
Fine: At the Judge’s discretion
Jail: 1 - 30 years depending on
the substance
License Suspension: One-year minimum. Repeat offenses
result in successive (consecutive) license suspension periods.
After one year, offenders may apply to the Department of Public
Safety for possible early reinstatement of driving privileges
by submitting proof of completion of a Risk Reduction Program
and paying a reinstatement fee in the amount of $200 (mail-in)
or $210 (walk-in). No "work" permit available.
These are minimum sentences for a second offense
on possession of a controlled substance. Additional penalties
may be set at the discretion of the judge/court depending on the
severity of offense and substance. A second offense can be disposed
of as a misdemeanor, but is a matter of negotiation for the District
Attorney, defense attorney and trial judge.
NOTE: Upon conviction for possession
of any contraband drug, in any amount, the law calls for a suspension
of an offender’s driver’s license regardless of whether
the offender was operating a motor vehicle at the time of arrest.
Any conviction of DUI or possession of marijuana
or other controlled substance requires mandatory participation
in the Risk Reduction Program in order to apply to the Department
of Public Safety for possible reinstatement of driver’s
license. Suspensions will not "age off," so as to automatically
entitle you to drive once again. Application must be made, and
fees paid before driving privileges will be restored. Under certain
conditions, a “nolo contendere” plea or a “first
offender” plea may save a person’s right to drive.
Each case must be evaluated on a case-by-case basis.
DRIVING WHILE YOUR LICENSE IS SUSPENDED
First Offense Driving on a Suspended License
(Simple Misdemeanor)
The penalty for a first offense of driving on a
suspended license is not less than two (2) days nor more than
12 months imprisonment and the fine is not less than $500 or more
than $1,000. The Department of Public Safety will automatically
suspend the driver’s license for an additional six (6) months
(from date of conviction) or plea of nolo contendere with no "work
permit" available. Upon conviction, any suspension called
for here is ADDED ON to other existing suspension periods. No
reinstatement fee is required, however, and this suspension may
"age off."
Second or Subsequent Offense (within 5 years)
for Driving on a Suspended License (High and Aggravated Misdemeanor)
The penalty for a second offense of driving on a
suspended license is a “high and aggravated” misdemeanor,
requiring imprisonment for not less than 10 days nor more than
12 months and the fine is not less than $1,000 or more than $2,500.
The Department of Public Safety will automatically suspend the
driver’s license for six (6) months (from date of conviction)
with no "work permit" available. Upon conviction, any
suspension called for here is ADDED ON to other existing suspension
periods.
Georgia Law Regarding Underage (under 21)
Drinking While Driving (Simple Misdemeanor)
Persons under the age of 21 who are convicted of
being in possession of alcohol while operating a motor vehicle
have a mandatory 120-day driver’s license suspension and
must attend the Risk Reduction Program and pay a reinstatement
fee of $25 (mail-in) or $35 (walk-in). No work permit is available
and no early reinstatement.
Underage (under 21) Possession of Alcohol
- Even if NOT Driving
Possession of alcohol is a misdemeanor with up to
six (6) months jail time or up to a $300 fine. Also, the offender’s
driver’s license is suspended for six (6) months. However,
the judge has the option to place the offender on probation for
up to three (3) years in order for the offender to undergo a comprehensive
alcohol rehabilitation program. The court may also order that
the offender complete the Risk Reduction Program within 120 days.
Failure to complete the Program is punishable by a $300 fine,
20 days in jail, or both. Furthermore, a special statue allows
for a possible “conditional discharge” upon completion
of a court-ordered plan of fines, community service and possible
drug and alcohol counseling. If granted, and if the entire program
is completed without new violations occurring, no “conviction”
will appear on the person’s record.
Juveniles under age of 16 who have a FIRST
offense of DUI
In addition to the other first offense DUI penalties
listed above, a child under 16 years of age shall have his privilege
to apply for and be issued a driver’s license or learner’s
permit suspended until the child is 17 years old and will have
to attend the Risk Reduction Program or court approved juvenile
program and pay a reinstatement fee of $200 (mail-in) or $210
(walk-in).
Juveniles under age of 16 who have a SECOND
offense of DUI
In addition to the other second offense DUI penalties
listed above, a child under 16 years of age shall have his privilege
to apply for and be issued a driver’s license or learner’s
permit suspended until the child is 18 years old and will have
to attend the Risk Reduction Program or court approved juvenile
program and pay a reinstatement fee of $200 (mail-in) or $210
(walk-in). In practical terms, the soonest any form of “application”
could occur is 18 months after conviction.
An Open Container of Alcoholic Beverage...
...will be considered in the possession of the driver
if it is not locked outside of the passenger compartment (trunk/glove
compartment). This law changed July 1, 2001. Prior to that date,
a passenger could possess an alcoholic beverage in the car. The
driver can be fined up to $200 and receive two (2) points on his
or her driver’s license. The 2001 legislation permits limo
drivers and “vehicles for hire” to have passengers
with alcoholic beverages, however. Note that any driver under
21 may be dealt with more harshly, as stated above.
Summary of Georgia's Administrative License
Suspension Laws
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William C. Head, Senior Partner
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