DS-1205: Where is my License, and What’s this Piece of Paper?

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If you are arrested in Georgia for DUI, you should immediately have two concerns; 1) you have criminal charges pending against you after you were cited with at least one ticket for DUI, which is a misdemeanor, and 2) a civil case relating to a potential suspension of your driver’s license.  The criminal charges pertain to the tickets that the officer wrote and will be handled through the normal criminal justice process.  The civil case pertains to your driver’s license and, as we will discuss in this blog post, time is of the essence.

DS-1205 Form

You may not know it, but if you have a Georgia driver’s license you have actually given consent to the State to obtain a chemical test of your blood, breath, or urine.   Any Officer in the State of Georgia, upon making an arrest for DUI, can request a chemical test to determine whether or not you are under the influence of alcohol and/or drugs.   That said, the State does allow a driver to withdraw that consent and “refuse” any chemical testing by the State. The process by which the Officer requests the test and the response you give the officer is crucial in determining the status of your license.  Normally, the Officer will seize your driver’s license and submit DDS 1205 form which is a petition to the Department of Driver Services (“DDS”) to suspend your driver’s license.    You have 10 business days from the date of your arrest to appeal any petitions submitted to DDS.  The Department will then place your case onto an Administrative License Suspension hearing calendar where you can contest the suspension of your license (SEE ALS HEARING BLOG POST).

Refusals vs. Breath Test Cases

The Officer will note on the DS-1205 petition whether or not you agreed to submit to chemical testing or if you refused to take the test the officer requested.  The length of the suspension and the type of license you may be eligible for are all dictated by whether or not you agreed to take the test.

If this is the first time you have been arrested for DUI alcohol, and you agree to take a the State administered test, and the results of that test are above a .08, then you may be eligible for a temporary work permit immediately after the license suspension goes into place.  The temporary work permit will allow you to travel to and from school/work.  Before the criminal case is resolved, DDS requires drivers eligible for a temporary work permit to go onto a temporary work permit for at least 30 days, complete the Georgia Risk Reduction Course (DUI School), and pay a reinstatement fee of $220 before reinstating the drivers full driving privileges.  On the other hand, if the driver refuses to take the test on a first lifetime DUI arrest, then DDS will issue a one year hard suspension, meaning no driving at all. All suspensions will run immediately if you do not submit an appeal within 10 business days of your arrest.

The 10-day Letter

On the back of your DDS 1205 form you will find the required process of appealing any petition submitted by the Officer to suspend your license.  Ultimately, DDS requires that you send a letter to DDS indicating that you wish to appeal any license suspension and wish to be placed onto an Administrative License Suspension hearing.   DDS also requires that you include a $150 filing fee with your letter.   It is good practice to send all 10-day letters by certified mail to insure that your request for an appeal is received by the department.  Also, it’s a good idea to send the letter even if the Officer did not seize your driver’s license.  The Officer does have some time to submit the petition at a later date or he/she may submit the petition and forget to take your license.  In those cases, it’s always best to play it safe and send a letter to DDS to make sure your license does not go into automatic suspension.

There are ways to avoid license suspensions, regardless of what your decision was at the time of your arrest.  We encourage anyone who has been arrested in Georgia for DUI to contact our office immediately (404-581-0999) for a FREE consultation.   W. Scott Smith, P.C. is dedicated to helping our client’s navigate through an often very difficult license suspension process.

VIDEO: Charged with Carrying a Firearm into Hartsfield-Jackson International Airport?

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http://www.youtube.com/watch?v=EO70ooDXuEw&feature=youtu.be

Forgot you left your Glock 19 in your carryon bag?

This happens more often than you would imagine.

In 2012, Hartsfield-Jackson Airport in Atlanta had more guns seized at TSA checkpoints than any airport in the U.S. with 96.  Don’t leave your gun in your carry-on bag, because what results is being charged with Carrying a Weapon in an Unauthorized Area.  Your weapon will be seized and you will be arrested.

Once arrested, you will be fingerprinted and need to make bond.  If arrested at Hartsfield-Jackson Airport for Carrying a Weapon in an Unauthorized Area, your court case will be assigned to the Clayton County State Court Solicitor General’s Office for prosecution.  Bond will likely be $3,500.00.

Our firm has handled a number of these cases and every case to-date has been dismissed.  There are several proactive steps we can take in order to make sure the case gets dismissed; including a gun safety course and community service.  It should be noted there is also an administrative component to these cases where the Department of Homeland Security/TSA will move to fine you through the administrative courts.  If you find yourself having been charged and want to protect your record, CALL US immediately 24 hours a day, 7 days a week at 404-581-0999.

VIDEO: DUI Courthouse Procedure in Municipal Court of Atlanta

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Peachstate’s own W. Scott Smith discusses procedure in the Municipal Court of Atlanta for people arrested for DUI in the City of Atlanta.

http://www.youtube.com/watch?v=8EYTmmB0KDc&feature=youtu.be

For those arrested for DUI in the city of Atlanta, you are generally pulled over by a city of Atlanta police officer or a Georgia Department of Public Safety state trooper. They will give you a citation to appear in court at 150 Garnett Street, Atlanta, GA 30303 generally within 72 hours of the time of arrest. The Municipal Court of Atlanta generally has between 800 and 1500 people on its calendar daily. The courtroom that handles DUI in the Municipal Court of Atlanta is Courtroom 5A and the Judge is Christopher E. Ward. He takes the bench promptly around 8:10 every morning. He handles all cases for citizens who have retained private counsel first before handling unrepresented persons or persons who have hired the public defender. No electronic devices are allowed in his courtroom and he requires everyone pay attention to all proceedings (no reading of books, newspapers, or magazines, either).

If you’ve been arrested, we can handle that first court appearance for you. If you hire our law firm we will file an entry of appearance on your behalf and show up at that first court date. We will also show up at all subsequent court dates on your behalf which will hopefully ease the burden of arrest. Don’t go into the City of Atlanta unrepresented. Call 404-581-0999 today for a FREE CONSULTATION. We will meet with you on the weekend if necessary to discuss your case and representing you in this pending DUI charge.

Misdemeanor Drug Possession – I can go to jail? Really?

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I smoke two joints in the morning.  I smoke two joints at night.  I smoke two joints in the afternoon, it makes me fell alright.  I smoke two joints in time of peace, and two in time of war.  I smoke two joints before I smoke two joints, and then I smoke two more.

“Smoke Two Joints” –The Toyes

 

I was gonna go to court before I got high.

“Because I Got High” -Afroman

 

If you’ve been charged with misdemeanor marijuana possession here is some important information you should know.

First, what is misdemeanor marijuana possession?  Pursuant to O.C.G.A. §16-13-2(b), possession of less than one ounce of marijuana is a misdemeanor punishable by up to 12 months imprisonment and/or a fine of up to $1,000.00.

Second, other than up to a year in jail and a $1,000 fine, what else can happen?  Pursuant to O.C.G.A. §40-5-75, the driver’s license of anyone convicted of possession of marijuana shall by operation of law be suspended.  Upon a first conviction within 5 years (as measured by arrest dates), there is a 180 day suspension.  A second conviction within five years, the period of suspension is three years.

I know.  You are saying to yourself, “I got caught with a joint and I’m looking at possible jail time, a fine, and a license suspension? I should move to Colorado!”

Before you pack your bags for the West Coast, there are a few things to remember about a misdemeanor marijuana charge.  In many counties, such as Fulton County, there are programs called Pre-Trial Intervention (PTI).  The PTI program is normally done on a case by case basis but could include: a program fee, class participation (such as a drug awareness class), or community service.  Upon successful completion of the PTI program, the case will be dismissed and you will be able to apply for record restriction pursuant to O.C.G.A. §35-5-37.  It’s like it never happened.  Also, by going through the PTI program, the license suspension never comes into play.

What happens if you weren’t offered PTI?  Conditional Discharge: Pursuant O.C.G.A. §16-13-2, if you have not previously been convicted of a drug possession charge, the court may withhold adjudication (refrain from making a decision) and place you on probation.  While on probation, you will likely have to complete a drug/alcohol evaluation and perform community service (note: this list is not exclusive and the probation can include “such reasonable terms and conditions as the court may require”).  Upon successful completion of the terms and conditions, “the court shall discharge the person and dismiss the proceedings.  Conditional Discharge may be used once.  As with PTI, by using Conditional Discharge, the license suspension never comes into play.

The important thing to remember with any pending criminal charge is to first contact an attorney.  The attorneys at W. Scott Smith, P.C. have handled thousands of misdemeanor drug cases and are able to help you get the best result possible.

If you’ve been charged with any kind of drug charge, call W. Scott Smith, P.C. today at 404-581-0999.

House Bill 407 Enacts Changes to Mandatory License Suspension Requirements for Second Conviction in Five Years

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The State of Georgia imposes a mandatory suspension of a driver’s license if a person is convicted of one of the following offenses:

O.C.G.A. §40-5-54

1)       Homicide by Vehicle as Defined in §40-6-393

2)       Any Felony in the Commission of Which a Motor Vehicle is Used

3)       Hit and Run or Leaving the Scene of an Accident in Violation of §40-6-270

4)       Racing on Highways and Streets

5)       Using a Motor Vehicle in Fleeing or Attempting to Elude an Officer

6)       Fraudulent of Fictitious Use of or Application for a License as Provided in §40-5-120 or §40-5-125

7)       Operating a Motor Vehicle with a Revoked, Canceled, or Suspended Registration in Violation of §40-6-15

8)       Any felony violation of Article 1 of Chapter 9 of Title 16 If such offense related to an identification document as defined in §16-9-4 (Manufacturing, Selling, or Distributing a Forged Identification Document)

O.C.G.A. §40-6-391 – Driving Under the Influence of

1)    Alcohol that it is Less Safe to Drive

2)    Drugs that it is Less Safe to Drive

3)    Glue, Aerosol, or Any Toxic Vapor that it is Less Safe to Drive

4)    Alcohol with an Alcohol Concentration of .08 Grams or More

House bill 407, which goes into effect on July 1, 2013 makes changes to the periods of suspension and the methods of returning licenses to drivers. It relates solely to a “second in five” which is a second conviction for arrests that occur within five years of each other. If a second conviction occurs for any offenses listed under §40-5-54, Georgia residents may apply for reinstatement of their license after a 120 day period. Georgia residents convicted under §40-5-54 must also finish an approved Defensive Driving or DUI Alcohol or Drug Risk Reduction program and pay a license restoration fee which ranges from $200-510.

If a second conviction occurs under §40-6-391, Georgia residents must wait a minimum of eighteen (18) months before applying for reinstatement of their licenses. Georgia Residents whose license is suspended for a “second in five” under §40-6-391 must do all of the above including payment of the fine and completion a DUI Alcohol or Drug Risk Reduction program. On top of those requirements they must apply for an ignition interlock device limited driving permit (O.C.G.A. §40-5-64) and provide proof of installation and maintenance of an ignition interlock device for a period of one year.

However, if the Georgia resident who was convicted under §40-6-391 is a member of drug court program or is enrolled in clinical treatment they may apply for an ignition interlock device limited driving permit after 120 days without completing a DUI Alcohol or Drug Risk Reduction program. If for any reason the Georgia resident is granted a waiver from an ignition interlock device, they must wait at least one year from date of suspension before becoming eligible for a limited driving permit.

If for any reason, the court orders installation of an ignition interlock device as a contingency of a resident’s probation, the resident can only drive vehicles that contain the ignition interlock device. They must complete the entire one year ignition interlock period and participate in a substance abuse program.

Finally, if a Georgia resident is a habitual violator of §40-6-391 and has had their license revoked but the court grants eligibility for an ignition interlock device, the Georgia resident must wait two years from the date of conviction for which the eligibility was granted. The following conditions are required before a probationary license is granted in this circumstance: 1) the resident must complete a DUI Alcohol or Drug Risk Reduction Program, 2) the resident has completed a clinical evaluation, 3) the resident has installed an ignition interlock device in any vehicle they are driving, and 4) a ceritifcate of elgigibility for an ignition interlock device is presented by the court. After the one year period, this habitual violator may apply for a renewal of their probationary license without an ignition interlock device.

Any driver operating with an ignition interlock device as required by the court or Department of Driver Services who receives an unsatisfactory report during the ignition interlock period can have their permit revoked by Department of Driver Services. The habitual violator can request a hearing with a payment of $250 regarding the failure to report any ignition interlock issues.

House Bill 407 makes pretty broad changes to the way Georgia residents convicted of a “second in five” can get limited driving privileges and ultimately request reinstatement of their license. It is imperative you understand your right in driving by speaking with a criminal lawyer.

Court of Appeals Victory-Trafficking of Cocaine

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On November 26, 2012, attorney Daniel Farnsworth received a final decision on a pending appeal.

The case originated in Henry County.  Client was stopped for allegedly following too closely behind the vehicle in front of her.  After a brief encounter, the officer stated he was going to issue a warning citation and finished writing the citation approximately 5 minutes into the encounter.  The officer then impermissibly extended the scope of the traffic stop by fishing for other alleged criminal activity.  The officer based his “hunch” of other criminal activity based upon nervousness of the client.  The officer was repeatedly denied permission to search the client’s vehicle (SMART MOVE! NEVER GIVE PERMISSION TO SEARCH).  More than 12 minutes into the traffic stop, the officer walked his K9 unit around the vehicle.  The K9 unit “indicated” on the vehicle which was then search.  During the search the officer uncovered over 28 grams of cocaine in the vehicle.

The trial court denied client’s motion to suppress but gave the client a certificate of immediate review.  Client next asked the Georgia Court of Appeals to grant an application for interlocutory review since the case was still pending in Superior Court.  The Court of Appeals granted the application and agreed to look at the case while the case was still on-going.  Normally, the Court of Appeals reviews a case when the case is completed.  Seizing on this rare opportunity, the client’s appeal was filed on March 27, 2012.

Mr. Farnsworth received the final decision from the court and immediately went to the end of the opinion…”Accordingly, because the officer illegally detained [client], the order of the trial court is reversed and the case is remanded with direction to grant [client’s] motion to suppress.”

VICTORY!!!  Case dismissed.

Weems v. State

A12A1353, Georgia Court of Appeals

GA Record expungement goes away in July 2013

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The passage of HB 1176 means that the current expungement laws in Georgia (O.C.G.A. 35-3-37) will disappear in July 2013.  In fact, the ability to expunge (remove, erase, strike out) an arrest off of a criminal record will be gone under the new O.C.G.A. 35-3-37 which takes effect in July 2013.

Under the new law, the Georgia Crime Information Center (“the Center”) will “restrict” the criminal history record information of an individual relating to a particular charge.  Therefore, the information will be available only to judicial officers and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34.  (O.C.G.A. 35-3-37(a)(6)-effective July 1, 2013).

Under the old law, the impetus was on the individual to request expungement of eligible offenses.  A review of the new law shows that the duty is now on the Center to restrict the information.  “Access to an individual’s criminal history information…SHALL BE RESTRICTED BY THE CENTER… (O.C.G.A. 35-3-37(h)-effective July 1, 2013).  Further placing the impetus on the State agencies involved, if the case is never indicted or accused, and never referred to the prosecutor by the arresting agency, the arresting agency shall contact the center and inform the center that the record should be restricted.  If the Center does not receive notice from the arresting agency (meaning the agency does not follow its statutorily mandated duty to report to the Center) then the Center must restrict the record after 2 years on misdemeanor charges or 4 years on felony charges.  (NOTE: there are restrictions on felony offenses including serious violent felonies and felony sexual offenses).

After an indictment or accusation, the CENTER SHALL RESTRICT THE RECORD if:  the case is dismissed or nolle prossed, the offender was sentenced under 16-13-2 and successfully completed the terms and conditions, or the individual successfully completed drug court treatment or mental health court treatment program.

The new law also requires the restriction of the record if the individual was acquitted of all charges by a judge or jury.  However, the prosecuting attorney can, within 10 days of the verdict, demonstrate to the court by clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record being publicly available because either: 1) the prosecutor was barred from introducing material evidence on legal grounds (granting of motion to suppress or motion in limine) OR 2) the individual has been formally charged with the same offense within the previous five years.

Similar to the old law, the new law does not allow for restriction of the record if the charges were dismissed or nolle prossed because of a plea agreement, the granting of a motion to suppress or motion in limine, the conduct was part of a pattern of conduct which led to prosecution by another state, or the individual had immunity from prosecution.  Furthermore, if the individual was tried and acquitted of some, but not all of the charges.

Another twist in the new law allows for restriction of the record where an individual had felony charges dismissed or was acquitted of the felony charges BUT was convicted of misdemeanor charges arising out of the same conduct.  NOTE, in this instance the impetus is back on the individual and they must petition the Superior Court of the county where the arrest occurred to restrict access to the felony charges within four years of the arrest.  Additionally, if  an individual’s case has been on the dead docket for more than 12 months, the individual may petition the Superior Court of the county where the case is pending to restrict access to criminal history record information for such offense.

As with any dramatic change in the law, the implementation of the new “record restriction” will face challenges as individuals attempt to restrict access to their criminal history.  The attorneys at W. Scott Smith, P.C. are well versed in the new law and will be able to assist you navigate the hurdles of the new law.  Please do not hesitate to contact W. Scott Smith, P.C. with questions about the current expungement law or with questions about the new record restriction law.