How can my license to drive be suspended administratively and again if I am convicted of DUI?
This is a good question. Georgia law thinks of driving as a privilege and not a right. On the administrative end, the law provides the Department of Driver Services (hereafter “DDS”) may take your license (viewed as a privilege) if there is a showing that you were more likely than not driving under the influence. This standard of proof is much lower than in a criminal case where the standard is beyond a reasonable doubt.
Where does license suspension begin?
The administrative license suspension (ALS) process begins when the arresting officer takes your driver’s license and issues you a “1205 Form” which acts as a 45 day driving permit upon a DUI arrest. DDS must receive a copy of the 1205 Form from law enforcement before a hearing can be scheduled or a limited driving permit can be issued.
Despite the arrest, the driver’s license is still valid until DDS receives the 1205 Form and 45 days have passed since the 1205 Form was served. The suspension is “pending” once DDS receives the 1205 form until the outcome of the administrative hearing. Once DDS receives the 1205 Form this 45 day driving permit will take effect and your driver’s license status will remain “pending.” This 45 day permit can be extended if the OSAH hearing is not held within 45 days. There are no limited driving restrictions with respect to this 45 day permit.
What are my options?
There are two approaches to dealing with an administrative license suspension: (1) request a hearing to appeal the suspension; or (2) elect to install an ignition interlock device on your vehicle.
DDS must receive the request for a hearing within 30 actual days (not business days) of the service of the 1205 Form. The hearing request must contain a $150 filing fee, the correct date of the arrest or incident, and the correct name of the driver, date of birth, and driver’s license number. Incorrect information could delay the hearing or cause a delayed suspension. Once the hearing request letter is received, your driver’s license will not go into suspension until you are afforded the ALS hearing before the Office of State Administrative Hearings (OSAH).
What happens at the hearing?
If you requested a hearing, the DDS will send you and your attorney a notice of a hearing date, time and location. The officer who stopped you is required to testify in front of an administrative law judge. The scope of the hearing is limited to the following:
- (A) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or
- (B) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
- (C) Whether at the time of the request for the test or tests the officer informed the person of the person’s implied consent rights and the consequence of submitting or refusing to submit to such test; and
- (D) Whether the person refused the test; or
- (E) Whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and
-
(F) 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, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.
If the judge believes
the officer legally satisfied the aforementioned requirements, your license
shall be suspended.
What if I lose the ALS hearing?
If you took the requested test, your breath/blood
results were over .08, and you lose the ALS hearing:
Your license/privilege to drive will be suspended for
1 year; however, after 30 days from the effective date of suspension, you may
apply for reinstatement of your license, provided you do the following:
- 1.
Submit an original certificate of completion of an approved DUI Alcohol/Drug
Use Risk Reduction Program;
- 2.
Remit a $210.00 restoration fee (or $200.00 if reinstatement is processed for
by mail).
This suspension will
not age off, but will remain active until you have completed the requirements
listed above.[1]
If this is your first
DUI in the last five years, you may be eligible for a Non-Ignition Interlock
limited driving permit.[2] Your license must be under
suspension (lose ALS hearing or no request for hearing is made). These types of
limited permits are issued at DDS locations and are renewable in 30 day
increments. They’re also referred to as “ALS Permits.”
If you refused to take the State’s breath test, your license/privilege to drive in Georgia
shall be suspended for one year. You
will not be eligible for a temporary/limited driving permit. The suspension ages off at the end of 1 year.
What if you request a hearing but the officer never submits the 1205 Form to DDS?
Georgia law requires the officer to submit the 1205 Form to DDS within 10 days of serving you with notice.[3] If the 1205 Form is not received, OSAH will send you a 91 day letter stating they have not received the 1205 Form. You will be entitled to a refund of your $150 filing fee. You must request the refund through the DDS form.[4] In addition, the 1205 Temporary Driving Permit Extension is no longer valid. As a result, you can obtain a new driver’s license from DDS so long as you indicate on your application for new license that your previous license was taken by an officer.
The Ignition Interlock Device Permit Approach[5]
The issuance of an “Ignition Interlock Device Limited Permit”, is conditioned upon you waiving your right to an administrative hearing and having an ignition interlock device installed your vehicle. The current ALS process, including the right to an administrative hearing, will remain in place as an option if you do not qualify for or do not wish to obtain this type of permit.
In addition to
waiving your right to an administrative hearing and having an ignition
interlock device installed on your vehicle, you must also meet the following
conditions:
- Application
for the permit must be made with DDS within 30 days of the person being served
notice of the ALS by the arresting officer through the DS-1205 form, or—in the
event of a DS-1205S form—within 30 days of receiving such notice of the ALS
from DDS;
- The
ALS cannot stem from a motor vehicle accident involving fatalities or serious
injuries;
- You
must be licensed in Georgia and not have any other suspensions, cancellations,
or revocations against his or her Georgia driver’s license;
- If
you hold a Georgia commercial driver’s license (CDL), you must downgrade to a
non-commercial Georgia driver’s license in order to obtain and maintain the
permit;
- You
cannot have any prior convictions for DUI in the 5-year period preceding
application for the permit;
- You
must surrender his or her Georgia driver’s license, either to the arresting
officer at time of arrest or to DDS prior to issuance of the permit; and,
- You
must pay a $25.00 permit fee.
The period of time in
which you must successfully maintain the ignition interlock device on their
vehicle depends on whether you consented to or refusedS the state-administered
chemical test requested by the arresting officer.
Consent v. Refusal
A person who consents to the state-administered chemical test and opts for the new permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 4 months. If you are subsequently acquitted of the underlying DUI charge, or the underlying DUI charge is dismissed or reduced, the ignition interlock restriction may be removed at no cost and the driver’s license may be replaced. The decision as to whether a fee is charged for removal of the ignition interlock device from your vehicle under such circumstances will be at the discretion of the device provider. A person who refused the state-administered chemical test and opted for the Ignition Interlock permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 12 months, regardless of the outcome of the underlying DUI charge.
Successful maintenance of the ignition interlock device must be evidenced by the permit holder to DDS through the production of satisfactory monthly monitoring reports prior to DDS removing the ignition interlock restriction from the permit. A permit may be renewed for a fee of $5.00 if additional time is needed for the permit holder to comply with the terms of the ignition interlock device, but it may only be renewed one time once the permit holder becomes eligible to reinstate his or her driver’s license. Following the designated term of successful compliance, the ignition interlock device restriction may be removed from the limited driving permit in person at a DDS customer service center for a fee of $100.00 (or $90.00 if removal of the restriction is requested by mail or other approved alternate means). The removal fee is in addition to any reinstatement fee that may be required.
Driver’s License Suspension Under Criminal Law
O.C.G.A. § 40-5-63 provides for the terms and conditions governing the driver’s license suspension for any person convicted of DUI. Upon the first conviction, the suspension period is for 12 months. Like we saw before, after 120 days, you may apply to DDS for a reinstatement of your driver’s license (upon proof of Risk Reduction and restoration fee, discussed above).
Upon a second DUI
conviction in the last five years (measured from the date of arrest), the
suspension period is three years. You can still apply for reinstatement but
would not be eligible for reinstatement until after ten months (as opposed to
120 days).
Upon a third
conviction within the last five years, you will be considered a habitual violator and your driver’s
license shall be revoked.
Periods of suspension under this code section begin on the date you are convicted of the offense. It is important to note that suspension time pursuant to an Administrative License Suspension under to O.C.G.A. § 40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating O.C.G.A. §40-6-391 which arises out of the same violation for which the Administrative License Suspension was imposed. O.C.G.A. § 40-5-67.2(b). For example, if your license was suspended for 6 months after an adverse ALS hearing and you are ultimately convicted of DUI, then you will receive credit for those six months towards time your license is to be suspended as a result of the conviction.
Call Us Today
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] Suspension
time pursuant to an Administrative License Suspension pursuant to O.C.G.A.
§40-5-67.1 shall be counted toward fulfillment of any period of suspension
subsequently imposed as a result of a conviction of violating O.C.G.A.
§40-6-391 which arises out of the same violation for which the Administrative
License Suspension was imposed. O.C.G.A. Code Section 40-5-67.2(b).
[2] O.C.G.A.
§ 40-5-64
[3] O.C.G.A.
§ 40-5-67.1
[4]
https://dds.georgia.gov/documents/refund-request-form
[5] The
information contained in this section is taken from DDS’ website: https://dds.georgia.gov/press-releases/2017-06-27/new-ignition-interlock-device-limited-permit-available-july-1st-updated
