Georgia Administrative License Suspension (ALS) Hearings during the Pandemic

Following a DUI arrest, the State of Georgia has authority to suspend the driver’s license of the accused in a civil proceeding, which is separate from the criminal case, if one of the following occurs:

  1. After the accused has been arrested, the officer on the scene read the accused the correct “Implied Consent” notice and he/she refused to comply with either a breath, blood, or urine test in order to determine their blood alcohol content; OR
  2. The accused consented to a breath, blood, or urine test and the results showed that the blood alcohol content of the accused was above the legal limit.

At this time, the accused has a few options. He/she can either appeal the license suspension or install an interlock device in their vehicle for the duration of the suspension. However, in this blog we will solely discuss the former.

Appeal of License Suspension

In the normal world in which we are not dealing with a global pandemic, following a DUI arrest, if one of the two circumstances above are true, the accused has 30 days from the date of the arrest to file an appeal of his/her license suspension. Due to the concerns and difficulties surrounding Covid-19, the State of Georgia has extended the deadline, which allows the accused to file an appeal within 120 days of arrest. This gives individuals charged with a DUI much more time to consider all their options following their arrest. However, if the appeal is not filed within the new extended deadline then the driver’s license of the accused will be suspended. In Georgia, there are two different types of license suspensions:

  1. 12-month suspension: This is also known as a “hard suspension.” This type of suspension happens if subsection (1) above occurs. In other words, the accused refused to comply with either a breath, blood, or urine test following the reading of the Implied Consent notice. For this suspension, there are no forms of temporary or restricted licenses. If the accused does not file an appeal or fails to install an interlock device within the stated time frame, his/her license will be suspended for an entire year.
  2. 30-day suspension: This type of suspension occurs if the circumstances surrounding the arrest mirror subsection (2) above. This means that the accused consented to a breath, blood, or urine sample and the results of that sample showed that his/her blood alcohol content was above the legal limit. During this 30-day suspension, if the accused attends a Georgia DUI School and pays a reinstatement fee of $210, the accused can obtain a restricted license, and furthermore, have their driver’s license reinstated after 30 days.

At the Law Offices of W. Scott Smith, we understand that there are grave consequences following a DUI arrest, including the possibility of a license suspension. Therefore, our attorneys are knowledgeable about all possible options for our clients and have vast experience dealing with such appeals. Therefore, if you have been arrested for a DUI and are potentially facing a license suspension, please call our office today at 404-581-0999 for a free consultation.

Habitual Violator Conviction and License Suspension in Georgia

Being declared a habitual violator can have very long-term and harmful effects on drivers in Georgia. Habitual violator is a status that occurs when convicted of certain traffic offenses, and it results in an immediate five year license suspension. It is also an offense that goes onto a person’s criminal history and can even lead to felony charges and prison time.

 

Convictions arising from a single incident or separate incidents to any three of the following violations within a 5-year period, as measured from date of arrest will cause the driver to be declared an Habitual Violator in accordance with O.C.G.A. §40-5-58:

 

  • Homicide by Vehicle (1st Degree) as defined by O.C.G.A. §40-6-393 (a) or (b)

 

  • Homicide by Vehicle (2nd Degree) as defined by O.C.G.A. §40-6-393 (c)

 

  • Any felony in the commission of which a motor vehicle is used

 

  • Hit & Run – Leaving the scene of an accident as defined by O.C.G.A. §40-6-270

 

  • Racing on Highways or Streets as defined by O.C.G.A. §40-6-186

 

  • Using a Motor Vehicle in Fleeing or Attempting to Elude an Officer as defined by

O.C.G.A. §40-6-395

 

  • Operating a Motor Vehicle with a Revoked, Canceled, or Suspended Registration as

defined by O.C.G.A. §40-6-15

 

  • DUI and DUI Child Endangerment

 

  • Feticide by Vehicle (1st Degree) as defined by O.C.G.A. §40-6-393.1 (a) (1)

 

  • Serious Injury by Vehicle as defined by O.C.G.A. §40-6-394

 

All three offenses can be from the same incident, or on the other hand, can be still be counted if they occurred within a five-year period. For example, it is possible to become a Habitual Violator if convicted of DUI, Hit and Run, and Child Endangerment in one incident. However, even if you pled nolo contendere to Hit and Run five years ago, and are later charged on different dates for any of the above crimes, this too will trigger Habitual Violator status. In order for due process to be met, the State must comply with specific notice requirements to drivers as it relates to Habitual Violator status.

 

Even if you pled guilty in Court under Georgia’s First Offender Statute to the above offenses, the Department of Driver Services still counts it as a conviction. Likewise, a Nolo Contendere plea is also considered a conviction under this statute and will not save your license.

 

A person who is declared a Habitual Violator immediately undergoes a five-year long driver’s license suspension. There may be a limited permit available after first serving a two-year hard license suspension.

 

Can I get a limited permit after being declared a Habitual Violator?

 

A 3-year limited driving permit may become available after the first two year suspension so long as the person has not been convicted or pled nolo to any moving traffic offense in the two years prior to applying. An approved Defensive Driving course or Risk Reduction course is also required to obtain a probationary license. Additionally, the person applying for a limited permit must submit a sworn affidavit that he or she does not use alcoholic beverages or illegal drugs. In cases involving two or more DUIs, an Ignition Interlock is required to be installed on the vehicle for a period of 12 months. In order to be granted a probationary limited permit after being declared a Habitual Violator, it must be shown that the “refusal to issue such a permit would cause extreme hardship to the driver.”

 

So long as the above conditions are met, and a fee in the amount of $210.00 is paid, the probationary license may be issued by Georgia Department of Driver Services. These probationary limited permits may have restrictions that limit the specific places the licensee is allowed to drive, or the routes and times of travel, as well as the specific vehicle the licensee may operate.

 

What happens if I drive after being declared a Habitual Violator without a permit?

 

            Georgia law makes it a felony offense to drive while being declared a habitual violator. Under O.C.G.A. 40-5-58(c), if convicted of driving after being declared a habitual violator, the punishment is a minimum fine of $750, or 1 to 5 years in prison, or both. In order to be convicted of Felony Habitual Violator, the State must prove the offender was declared a habitual violator, was properly notified of that status, and that he or she operated a vehicle without having obtained a valid license. Georgia law does allow defense of Justification at trial in Habitual Violator cases.

 

            Similarly, if convicted for any of the above offenses, including DUI, after having been declared a habitual violator is a serious felony offense in Georgia that can carry prison sentences of up to five years and a base fine between $1,000 and $5,000 on top of any sentencing from the new crimes.

 

While driving as a Habitual Violator is a felony offense in Georgia, it is a misdemeanor offense to be convicted of any minor traffic offense, after having been given a probationary limited permit. A conviction for a traffic offense while on the probationary limited permit can carry fines and up to 12 months in jail.

 

Being declared a Habitual Violator in Georgia is the most serious of traffic and license issues you can encounter in Georgia. This is why it is important to be represented in all traffic cases as you can unknowingly become a Habitual Violator by paying tickets on any of the above offenses (even a Suspended Registration). The life-long consequences of being declared a Habitual Violator are severe, so make sure to have a Georgia traffic and criminal attorney advocate for you in such traffic cases. If you or a loved one has been arrested for Habitual Violator status, or any of the contributing crimes to Habitual Violator, call us today for a FREE CONSULTATION at 404-581-0999.

Georgia DUI Law – Department of Driver Services COVID-19 (Coronavirus) Updates

On March 30, 2020, the Department of Driver Services (“DDS” also known as the DMV) issued an update regarding court proceedings in a letter addressed to criminal defense attorneys in Georgia. This article serves to summarize those important updates provided by DDS.

What Services Are Available?

As of right now, DDS remains open for non- customer-facing services. These include online services, DDS 2 GO mobile app, and other services requiring headquartered staff. Customer-Facing services across the State will be closed until April 1, 2020. After April 1, services will resume, but by appointment only.

Reinstatements, replacement licenses, and driving history and reinstatement eligibility  may be processed online and through the DDS 2 GO app. You can check the status of your driver’s license at online.dds.ga.gov/dlstatus.

Driver’s License Expirations

All Georgia driver’s licenses with set to expire from March 14, 2020, through June 30, 2020, will receive an automatic 120 day extension. Cardholders should expect to have new credentials sent to them via mail.

FTA Suspensions

DDS recognizes those individuals with pending FTA suspensions will not be able to resolve their FTA issues with the courts since courts are closed or are offering only limited services at this time. Therefore, DDS is delaying FTA suspensions for an additional 60 days.  DDS urges customers to check their driving history through their online services.

ALS Hearings and Driving Privileges

Because the Office of State Administrative Hearings has suspended ALS Hearings, DDS has decided to extend the 45 day temporary driving permit (issued with 1205 form) for 90 days. This extension will enable drivers to continue driving until normal operations resume. Additionally, DDS will continue to process ALS hearing requests and has also extended the filing deadline for ALS hearings from 30 days to 120 days (measured by the date of arrest).

Requesting Ignition Interlock Driving Permits

DDS is granting customers requesting Ignition Interlock Limited Driving Permits more time for their requests given DDS Customer Service Centers will be closed until April 1. Once the Service Centers re-open, customers these permits will be able to obtain a permit beyond the 30 day deadline.

Contact Us

If you or someone you know has been arrested for DUI, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll find a local Attorney ready to aggressively fight on your behalf.

Georgia DUI Law – What a Georgia DUI Costs

In 2018, there were 21,784 DUI convictions in Georgia. A DUI arrest and conviction has serious consequences. Among those consequences, you can expect to pay a significant amount of money in defending the case. This article serves to provide a general idea of what it costs to be arrested and convicted of DUI.

  1. Bail/Bond: $150 – $2,500. Cost of bail in a DUI arrest depends on a variety of factors including but not limited to prior criminal history, case facts, and ties to the community.
  2. Towing: $50 – $200. The cost of towing and impounding a car can increase daily.
  3. Insurance Increase: $4,500 or more. Depending on your insurance carrier and driving history, your rates could double, triple or even quadruple over a period of three to five years.
  4. Legal Fees: $2,000- $25,000.
  5. Fines: $300 – $5000. These base fines vary depending on the nature of your offense and any prior DUI’s. These base fines do not include statutory court costs which can increase the base fine by 50% or more. 
  6. Alcohol Evaluation: $95 – $300. The law requires completion of an alcohol and drug evaluation and treatment if recommended by the evaluator.
  7. Classes: $500 – $4,000. As part of a DUI conviction you will be required to complete a Risk Reduction class (also referred to as “DUI School”). This class costs $350. You are also required to complete a Victim Impact Panel which costs roughly $100.
  8. License reinstatement fees: $210 – $410. License reinstatement generally costs $210. However, depending on your history, you could be required to install an ignition interlock device on your vehicle in order to reinstate your license. You would have to pay for the installation of the device plus daily maintenance costs.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

Traffic Tickets while Traveling through Atlanta, Georgia

by Ryan Walsh

We receive calls every day from people who receive traffic tickets while driving on the highways of Georgia. Due to traffic, congestion, construction, and rural police departments, out of state residents are targeted and ticketed every day.

These local courts think they can make money off of you since you live out of state. They think you will just pay the fine and move along. Sometimes the officer will even tell you that it is a non-points violation and can just be paid online when that isn’t actually the case.

Georgia is a points state, meaning every conviction for a moving violation involves points that may be added to your out of state license. Also, the conviction may be reported on your driving history and affect insurance rates.

Traffic tickets in Georgia involve more than just a payment of a fine. It is important to understand the risk of just paying the citation on your driving history. It may cost you a lot more than just the fine amount.

Common traffic tickets we see involving out of state drivers include move-over violations, super speeder tickets, hands-free device citations, and accident cases.

I work every day in the traffic courts around Georgia and can give you the best advice on how to approach your citation. Call us today at 404-581-0999 and ask for Ryan Walsh or e-mail me anytime at ryan@peachstatelawyer.com.

Georgia DUI Law: Challenging the Stop, Defective Equipment

Georgia DUI investigations usually begin with a routine traffic stop. At a minimum, in order to stop you and your vehicle, the stopping officer needs to have “reasonable and articulable suspicion” to believe a crime has, or is about to be committed. An officer normally satisfies this requirement by observing a traffic or equipment violation. However, if it is determined the officer did NOT have reasonable and articulable suspicion to stop your vehicle; this could result in the suppression of evidence and the ultimate dismissal of a DUI charge.

Therefore, it is crucial to examine the most common types of traffic violations that result in a DUI investigation. This article serves to inform you of the nature, methods of proof, penalties, and challenges to a defective equipment offense in Georgia.

The Offense

O.C.G.A. §§ 40-8-7(a) and (b) state:

(a) No person shall drive or move on any highway any motor vehicle, trailer, semi trailer, or pole trailer, or any combination thereof, unless the equipment upon any and every such vehicle is in good working order and adjustment as required in this chapter and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.

(b) It is a misdemeanor for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any street or highway any vehicle or combination of vehicles:

(1) Which is in such unsafe condition as to endanger any person;

(2) Which does not contain those parts or is not at all times equipped with such lights and other equipment in proper condition and adjustment as required in this chapter; or

(3) Which is equipped in any manner in violation of this chapter.

Even if you are driving perfectly, a police officer may still stop your vehicle if any of its equipment is non-operational. Examples include, but are not limited to, missing taillight, broken tag light, or a low hanging bumper. Although the spirit of this law is to protect other motorists from defective vehicles on the road, this traffic offense is often used as a “pre-textual stop,” meaning the officer stops you for this offense in hopes of discovering another criminal offense, particularly DUI. Although the law used to criticize these types of stops, a line of United States Supreme Court cases has weakened these types of challenges.[1]   

Penalties

Under Georgia law, technically, these equipment violations are misdemeanors and are therefore punishable with up to a maximum fine of $1,000 and up to one year in jail. Although these are the maximum punishments, equipment violations generally do not result in jail time. Normally, if you get the defective equipment fixed, and provide proof of such to the prosecuting attorney, your case will likely be dismissed.

Challenging the Stop

If an officer pulls you over for an equipment violation and ultimately arrests you for DUI, you may lodge a challenge to the stop of your vehicle through a motion to suppress or a motion in limine. These challenges are designed to attack the stop, arrest, or any evidence gathered as a result of an unlawful stop and/or arrest.

If you are facing a DUI-Less Safe case, the State will have to prove “less safe driving.” If you have only been cited for defective equipment, the State will have great difficulty in proving alcohol caused you to be a less safe driver because there is no “less safe” driving act (ie. speeding, failure to maintain lane, improper turn, etc.). This is a major issue a defense attorney should raise during trial.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.


[1] See, Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001); Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769  (1996); Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996); and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997).

Is DUI a Felony?

In most instances, the crime of DUI is considered a misdemeanor in Georgia. A misdemeanor is defined as a crime that has a maximum punishment of 12 months in jail. If this is your first time being charged with a DUI and no one was hurt, you will be facing a misdemeanor DUI.  Additionally, even if this is your second or third DUI in a short period of time, your DUI will still be charged as a misdemeanor.

Misdemeanor Punishments

Even if you are facing a misdemeanor-level DUI, the State can stack punishment, and request a longer sentence by adding additional jail time to an underlying charge. For example, if you are charged with DUI and Failure to Maintain Lane, the Judge can sentence you up to 12 months on each charge, for a total of 24 months in custody. Additionally, misdemeanor DUIs do still appear on criminal histories and can require jail, probation, and a license suspension if you are convicted. The goal after a DUI arrest is to avoid a criminal conviction so you can avoid the harsh punishments associated with a conviction for DUI. 

When DUI is a Felony

There are situations where you will be facing a felony after a DUI arrest. A felony is defined as a crime that is punishable more than a year in jail. The first instance is when you are being charged with a fourth DUI within a 10 year period, measured from the dates of previous arrests. A fourth DUI within 10 years is a felony in Georgia, with considerable mandatory minimum jail time if convicted.

Another situation where a DUI is considered a felony in Georgia is if you were arrested for the crime of Serious Injury by Vehicle. This occurs when someone causes an accident resulting in bodily harm while Driving under the Influence. This felony is punished by imprisonment between 1 and 15 years. Bodily harm under Georgia law is defined as an injury to another person which deprives them of a member of their body, or renders part of the body useless, or seriously disfigures, or causes brain damage. There are certainly defenses to this serious crime including the causal connection as well as what constitutes a serious injury.

The final situation where a DUI is prosecuted as a felony offense is Homicide by Vehicle in the first degree, meaning you are arrested for DUI and someone actually dies in the accident. You can be charged with Homicide by Vehicle if it is your passenger who dies.  If convicted, the crime is punishable from 3-15 years. The law requires the State to prove a causal connection between the violation of the DUI statute and the victim’s death. However, under Georgia law, the person does not actually have to commit an unsafe act before facing this type of charge.

Call us today!

DUIs in Georgia require knowledgeable and skillful representation as the stakes are high. If you are facing a felony DUI, it is imperative to find a law firm with a track record of success, who are well-informed on the ever-changing aspects of DUI law in Georgia. If you or a loved one is facing a DUI, whether it be a misdemeanor or felony DUI, call us today for a free consultation at 404-581-0999. 

Driver’s License & New DUI Law

In May of 2019 the Georgia legislature approved a new implied consent warning for persons who have been arrested for DUI in Georgia. The implied consent warning informs drivers that Georgia law requires them to submit to a blood, breath, or urine test after they have been arrested for DUI; and submitting a sample that’s over the legal limit of .08 or refusing to submit to the requested test after arrest can result in a suspension of your drivers license.

What’s New?

This new implied consent notice removes a part of the old language that states “Your refusal to submit to breath testing can be used against you at trial.” This occurred after a Georgia Supreme Court opinion which stated that your refusal to submit to breath test evidence cannot be used against you at trial. However, this ruling is only related to the breath test option. Refusing to submit to blood and urine testing can still be introduced against you at trial.

What we have found after evaluating this new implied consent warning is that most well-trained officers are now just asking for a blood test instead of a breath test. Your refusal to submit to a blood test can be used to suspend your license as well as it can be used against you at trial.

Call us TODAY!

The law in relation to DUI cases in Georgia is constantly evolving. Having a well-trained lawyer on your side is the best way to maintain your ability to drive and keep a DUI conviction off your record. Our staff of attorneys is trained by the sane trainers who are teaching law enforcement officers to investigate DUI cases. Call our office today for a free consultation at 404-581-0999.

DUI: Blood Alcohol Concentration

This blog article serves to discuss how Georgia law handles varying Blood Alcohol Concentration (BAC) levels, from 0.00% to 0.08% and beyond.

BAC of 0.05% or Less

If a chemical test of your blood or breath falls within this range, then the law[1]provides the defense with a presumption of non-impairment. This means the trier of fact (judge or jury) is entitled to infer that the defendant is not impaired based on this low alcohol concentration. This presumption of non-impairment, may however, be rebutted by the prosecution. Typically, this is done through presenting evidence of “bad driving” (accident, traffic violation, etc.), or through other manifestations associated with alcohol impairment. If your blood alcohol comes back in an amount this low, a skilled DUI lawyer should be able to get the charge dismissed or reduced.

BAC Greater than 0.05%  but Less than 0.08%

In this situation, the law provides no inference the person was or was not under the influence of alcohol. This BAC range is treated as neutral territory, it doesn’t hurt, but it doesn’t help either. Again, this evidence is to be taken into consideration with other competent evidence determining impairment.

BAC Greater 0.08% or More

A BAC of 0.08 grams or greater amounts to a per se violation of the DUI statute. This means the law automatically deems you impaired, regardless of alcohol tolerance. For this reason, it is imperative defense counsel do anything possible to eliminate this BAC number from being introduced at trial. And if the BAC is admitted at trial, the defense lawyer is tasked with casting doubt on the validity of the BAC result. This can be accomplished through effective cross-examination, employment of an expert witness, and a thorough investigation of the case.

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.


[1] O.C.G.A. § 40-6-392(b)(1)

CDL & Georgia DUI Law

Truck drivers possessing a Commercial Driver’s License (CDL) are treated differently than other motorists facing a DUI charge in Georgia. This blog article aims to discuss those differences.

CDL Holders Are Held to a Higher Standard

For the majority of drivers in Georgia,[1] a person may be convicted of DUI if their blood alcohol concentration (BAC) is at 0.08% or more while driving. If a CDL driver, however, is stopped for DUI while operating a commercial vehicle, the legal BAC limit is 0.04%.

Consequences of a Refusal of Chemical Test or DUI Conviction

While you may refuse the State administered test of blood, breath, or urine, CDL drivers face severe consequences for refusing and for being convicted. The driver of a commercial vehicle who is convicted of DUI while operating a commercial vehicle, or who refuses to submit to a chemical test, is disqualified from driving a commercial vehicle for a period of not less than one year. This disqualification is in addition to any license suspension imposed for a DUI conviction.   Because of these harsher punishments, it is critically important you hire a skilled attorney to defend the case.

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.


[1] Except for drivers less than 21 years of age and CDL drivers.