SUMMARY OF GEORGIA’S DUI LAW

Arrests July 1, 2001 or After

© 2004 William C. Head

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.

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:

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.

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:

1. Photograph of offender taken at time of arrest;

2. Name and address of offender is given; and

3. Date, time, place of arrest and disposition of the case.

4. 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").

5. 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:

1. Photograph of offender taken at time of arrest;

2. Name and address of offender is given; and

3. Date, time, place of arrest and disposition of the case.

4. 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").

5. 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.

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.

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.

This written material is copyrighted by William C. Head, and is intended for use and distribution only under license agreement with William C. Head. No copying or reproduction of this material is permitted in any form or fashion without written permission from William C. Head.