Your options and what you must do within 30 days of being arrested for a DUI in Georgia: New laws as of July 1, 2017
The 30-day letter and Georgia Temporary Driving Permits in Georgia DUI cases
NOTICE** This letter was formerly referred to a the "10-Day Letter" in Georgia DUI cases. The Georgia law changed on July 1, 2017, with regards to the options and procedures for appealing administrative suspensions and options of drivers accused of DUI in Georgia.
NEW GEORGIA LAW as of July 1, 2017:
If you refuse to take a requested State-administered chemical test (blood, breath, urine, or other bodily substance) after being arrested for DUI, then your Georgia driver's license or privilege to drive in the State of Georgia may be suspended for a minimum period of one year. Once you have been arrested and received a DDS Form 1205, there are three options that may be available to you:
1) Do Nothing
If you do not request an appeal hearing (30-day letter) or Ignition Interlock Device Limited Permit: If you do essentially are arrested and "do nothing," your DDS Form 1205 will serve as your driver's license for 45 days. On the 46th day after your arrest, you Georgia driver's license or privilege to drive in the State of Georgia (if you have an out-of-state license) will be suspended for one year. If you refused the requested test, you will not be eligible for any type of limited driving permit. An administrative license suspension permit may be available to you if you submitted to the requested test and have not been subject to an administrative license suspension within the last 5 years. There are also other factors that may affect your ability to obtain an administrative license suspension permit.
2) The Appeal Option
The appeal option is what was previously referred to as the 10-day letter, or now the 30-day letter, which is requesting a hearing in front of an administrative law judge in the Georgia Office of State Administrative Hearings Court to challenge the suspension of your license. There is a $150 fee to request this hearing. Once you request this hearing, your license suspension will be stayed (put on hold) until your hearing is conducted. The issues addressed in this hearing are as follows:
a) Whether the arresting officer had reasonable grounds to believe that you were driving or in actual physical control of a moving vehicle while under the influence of alcohol and were lawfully placed under arrest for DUI;
b) Whether at the time of the request for the tests or tests, the officer informed you of your implied consent rights and the consequence of submitting or refusing to submit to such test;
c) Whether you refused the test, or if a test or tests were administered and the results indicated an alcohol concentration met or exceeded the applicable "per se" limits of 0.08 grams or more for drivers age 21 and older, 0.02 for drivers under the age of 21, or 0.04 for operators of commercial vehicles; and,
d) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences.
**Note: If you request an appeal hearing with a 30-day letter or in person at a Georgia DDS facility, you will have waived your right to an Ignition Interlock Device Limited Permit. See Below.
3) Request an Ignition Interlock Device Limited Permit
The last option is to request an ignition interlock device limited permit from DDS. The ignition interlock device requires that you to blow into the device to start your vehicle. You must request this option within 30 days of the date of your arrest. If you refused the requested test from the arresting officer (blood, breath, urine or other bodily substance), and you choose the ignition interlock device limited permit, you will have to maintain the device for 1 year. You will have to pay to have it installed, monitored daily, calibrated, inspected, and finally removed from your vehicle for the entire year. Even if you are found not guilty at trial, you will still have to keep the interlock device installed on your car. If you took the test but tested above the legal limit, then you will have to keep the ignition interlock device for at least 4 months. This option to request an ignition interlock device limited permit is not available if:
a) you have been convicted of DUI within the past 5 years;
b) you are under 21 years old;
c) you do not have a Georgia license; and,
d) you have any other suspension, cancellation, denial, or revocation of your Georgia license.
**Note: If you have a Commercial Driver's License, and you request this limited permit, your CDL qualification will be downgraded during the period of your suspension.
On December 21, 2016, at approximately 1:30 A.M., client was traveling down the roadway in Jackson County, Georgia, when she lost control of her vehicle, left the roadway and struck a retaining fence surrounding a roadside business. Due to the fact that client's car was disabled, she remained in her vehicle until approximately 8:30 A.M. the following morning when she was arrested by the Georgia State Patrol for DUI and Failure to Maintain Lane. Although client remained at the scene, client was also cited for Failure To Notify Owner Upon Striking a Fixture. Client submitted to a requested blood alcohol test which allegedly indicated a blood alcohol level of .09 g/mL. Through her attorney client requested an administrative hearing to appeal any potential administrative suspension of her license for allegedly testing above the statutory blood alcohol limit of .08 g/mL. The Georgia Office of State Administrative Hearings informed the attorney that it had not received any evidence of an administrative license suspension and therefore no hearing was held. Because no hearing was conducted, client was not subject to any administrative suspension of her license. After pre-trial discovery motions were filed and pre-trial negotiations were conducted, client's charges of Striking a Fixture and Failure to Maintain Lane were dismissed. After contacting client's insurance company, her attorney was able to produce evidence to the State that all damage to the roadside business fence had been repaired and paid for. Client's charge of DUI was reduced to reckless driving and she was sentenced to a fine and required to complete a State-certified Risk Reduction Course. Because client had already completed a Risk Reduction Course on advice of her attorney, she was only required to pay a fine and there was no additional requirement that client be placed on probation. This case was handled by Attorney Bill Hardman.
Many people accused of DUI in the State or Georgia will ask, "Can I enter a Nolo plea in my DUI case?"
The short answer is "YES" if, and only if, the court is willing to accept the plea after all the defendant meets all of the statutory requirements.
The Georgia Code Section that explains the requirements a defendant must meet to enter a nolo plea to a DUI case in Georgia is O.C.G.A. 40-6-391.1. You can read the entire statute here:
One reason that a defendant may request that the court accept his or her nolo plea in a DUI or any criminal case is that the defendant would like to dispose of his or her criminal case and is willing to accept the court's punishment even if the defendant does not believe that they are guilty of the crimes as charged. Further, in any case that involves an accident where another party's property is damaged or another party is injured, the injured party will generally have 2 years to file a tort action (personal injury or civil case) against the defendant for damages money and costs that may be attributed to the defendant. Even if a person is charged in a criminal case related to any such accident, the defendant may not believe he or she is the cause the accident. Because the defendant's criminal case is likely to come to court before any such tort action, the defendant may elect to enter a nolo plea to dispose of the criminal case and accept such punishment without entering a guilty plea to the charges against him/her. Entering a guilty plea in the criminal case is tantamount to an admission of guilt and may be used in a later civil case against the defendant to show that he/she was liable for the cause of the damage to property or injuries to the other party.
Penalties after a nolo plea to DUI
One KEY CONSIDERATION a defendant should consider before entering a nolo plea to DUI in Georgia is that the Department of Driver's Services treats a nolo plea the same as a guilty plea as far as driver's licenses suspensions are concerned. If you enter a nolo plea you will be subject to the same driver's license suspensions as you would if you entered a guilty plea in the case. The court may also impose the same penalties as they would normally impose if the defendant had plead guilty in the case.
In summary, if you are considering entering a plea to a Georgia DUI case, you need to speak with a Georgia attorney who is familiar with the DUI laws and who can advise you of whether or not such a plea may or may not benefit you in your case.
Client was charged with failure to maintain lane and DUI less safe. Client was sitting in her car during a large storm on the side of the road in Fulton County when officers approached to ask why she was stopped on the side of the roadway. Officers claimed that there had been a report of driver failing to maintain lane earlier in the evening. Client refused to perform the voluntary field sobriety evaluations due to the fact that it was pouring rain. Officers claimed they noticed an odor of an alcoholic beverage. There were no other manifestations of impairment shown in the arrest video of client. Attorney was told by the police department that the officer was no longer employed in Fulton County. After obtaining the officer's training and employment records, attorney determined that the officer was employed in Fulton County and in the same position as he was on the night of arrest. Through his investigation attorney determined that the only offer of proof that client had been driving erratically at any time was the statement of a third party witness. No law enforcement had witnessed client driving at any time. The elements of the offense of driving under the influence in Georgia is that the State must prove beyond a reasonable doubt that the accused was less safe (or had a blood alcohol level of .08 grams or more) to drive because of their consumption of alcohol and in actual physical control of a moving vehicle within three hours after such consumption. After a pre-trial conference with the prosecutor to explain all of the difficulties in proving the State's case, client's charge was reduced to one count of reckless driving and the failure to maintain lane charge was dismissed. Once the fine is paid and the other conditions of the sentence are completed client's probation terminates and the case is over. This case was handled by Attorney Bill Hardman.
If you have been arrested for a probation violation in Gwinnett County, you may be arrested at the probation office or picked up by officers after a warrant has been issued for your arrest. Once your probation has been revoked you will remain in the Gwinnett County jail until you have the opportunity to have a probation revocation hearing.
Probation Revocation Hearing
Your probation revocation hearing may come up quickly or may take a week or so to be heard. It depends on what day you are arrested or taken into custody for violating your probation. Your probation hearing will consist of essentially two parts. The first step is to determine whether or not you actually violated your probation. A common example that leads to probation revocation is for failing a drug or alcohol test. See this link for information on probation alcohol testing (LINK).
If you fail a drug or alcohol test then you are entitled to an evidentiary hearing on the evidence and whether it is accurate or inaccurate. If you have been arrested for a crime, then you would be entitled to the same evidentiary hearing as to whether or not you actually committed a crime in violation of the terms of your probation.
***A key factor to determine at this point is whether or not it is beneficial to you to challenge the evidence that you have actually violated your probation. If you challenge the evidence, you will remain in jail until a further point when you have a hearing on the evidence as to whether or not you violated your probation.
It is important for your attorney to contact your probation officer and determine what their recommendation is in your case. For example: If you were sentenced to two years probation on your original charges and your probation officer is recommending to "revoke the balance" then you may absolutely want to have a hearing on the evidence in your revocation case because you may serve the rest of your original sentence in jail if the Judge agrees with the probation officer and the prosecutor's side of the case. ***It is important to remember that while you are on any form of probation, that probation has the potential to be revoked. If you are found in violation of any terms of your probation, you may be sent to jail for all the remaining time that you were going to be on probation.
If your attorney is able to negotiate an agreement with the prosecutor and the probation officer before your probation revocation hearing then it may be best to stipulate to the violation (admission that you did in fact violate your probation) so that you may potentially be released immediately or be required to serve as little time as possible in jail. Probation revocation hearings are usually very short so all of the work must be done by you or your attorney before the hearing. The Judge is the person who ultimately decides what to do in your case but it is crucial to have some sort of pre-hearing negotiation between all parties so that the best result can be obtained.
Client was stopped by the police for failing to maintain lane while proceeding down the onramp to I-85 South. After making discovery demands to the State and receiving the video evidence, I determined that there was reasonable articulable suspicion for the traffic stop. Client explained that the reason for failure to maintain lane was due to the fact that he was reading directions from his phone. (**Note: reading or looking at a cell phone is an extremely common reason for weaving resulting in traffic stops) Client exhibited 4 out of 6 clues on the HGN Test: lack of smooth pursuit and distinct and sustained nystagmus at maximum deviation. Client exhibited 4 out of 8 clues on the Walk and Turn Test: stopped while walking, missed heel-to-toe on the first and second sets of 9 steps, and completed an improper turn. Client exhibited 1 out of 4 clues on the Walk and Turn Test: raised arms to balance. Client also exhibited a positive result on the Alcosensor device (field/roadside breath test). On the state adminsitered breath test (Intoxilyzer 9000) client blew a .08. Prior to jury trial and on attorney's advice client completed all requirements for a first in lifetime DUI. After meeting with the solicitor and discussing client's criminal and work history combined with all mitigation efforts, client's charge was reduced from DUI to reckless driving keeping him from having a DUI conviction on his permanent criminal history and avoiding a suspension of his driver's license. This case was handled by Bill Hardman.
Client was charged with shoplifting after taking certain merchandise from a store where he was also employed. After defendant's attorney met with the judge and prosecutor to discuss all of the facts and circumstances surrounding the case, client entered a negotiated plea to a city ordinance violation unrelated to theft. Client was able to pay his fine immediately based on the cash bond he posted and all probation was able to terminate immediately.
An important aspect of this type of case is that if you are able to close a criminal case with a dismissal, not guilty verdict at trial or a plea to a city ordinance violation, it will not appear on your criminal history. Employers frequently perform background checks before hiring now so it is important to challenge any criminal charge that may later appear on your record. In many cases the real "costs" involved in a misdemeanor criminal case are the potential ramifications associated with criminal background checks by employers that may cost someone a job opportunity. A fine and a year of probation are not really all of the "costs" in these types of cases. A criminal background check in Georgia can definitely have a negative effect on your potential employment.