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Second DUI arrest in Fulton County, Georgia

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By: Erin Dohnalek

In Georgia, sentencing and license consequences get more severe with each new DUI arrest and subsequent conviction. There are mandatory minimum sentences that judges must abide by, and there are required consequences for an accused person’s driving privileges mandated by the Georgia Department of Driver’s Services.

The Offense:

According to O.C.G.A. § 40-6-391, a person commits driving under the influence of alcohol or drugs when it renders them less safe to drive, the person’s alcohol concentration is 0.08 grams or more at any time within 3 hours after such driving occurred, or there is any amount of an illegal controlled substance present in the accused person’s blood or urine.

The mandatory minimum sentencing for a second DUI conviction, if the first was committed in the 10 years preceding the second arrest for DUI, is at least three days in custody. In Fulton County, that means three days must be served at the Fulton County Jail. There also is a requirement that the accused must complete 240 hours of community service, a substance abuse evaluation plus recommended treatment, DUI school, and a Victim Impact Panel. This is all mandated by Georgia law.

In Fulton County, there are two judges who primarily preside over individuals charged with a second DUI: Judge Edlein and Judge Tailor. Both of these judges are in charge of the Fulton County DUI Court Program. A potential consequence of being charged with a second DUI in Fulton County is that DUI Court is pushed to avoid substantial jail sentences.

License Consequences:

One of the most pressing consequences of a second DUI conviction is a mandatory license suspension. If the accused has had a prior DUI conviction in the last ten years, but not in the last five years, the license suspension will be for a period of 120 days. However, a Georgia driver’s license holder will be eligible for a limited permit during that suspension to allow them to drive to essential locations.

Alternatively, if the accused has had a prior DUI conviction in the last five years, the consequences for his/her driving privileges are severe. The accused will be required to surrender their license, and he/she will have a hard license suspension for 120 days with no eligibility for a limited permit. After the 120-day license suspension is up, he/she will then be required to install an ignition interlock device in their vehicle for a period of 12 months. After the 12-month period has expired, the accused must continue to drive on a limited permit for two additional months before they will be able to reinstate their permanent driver’s license.

Contact Us:

Due to the severity of the consequences following a second DUI arrest, it is imperative to hire an experienced criminal defense attorney to explain all the possible options for an individual charged with a second DUI, to challenge that arrest in order to avoid some of the direct and collateral consequences of a second DUI conviction, and to advocate for their client’s constitutional rights. Therefore, if you have been arrested for a second DUI in Fulton County, please call our office today at 404-581-0999 for a free consultation.

After my DUI arrest, the officer took my license. How can I get to work?

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If you have been arrested for a DUI in Georgia and an officer took your license, you may be wondering how you can get to work, school, or even your court date without the risk of getting into trouble. If this is you, then take a look at the citation you were given when you were arrested and take a deep breath. At the bottom of the citation, you should see something that says “temporary driving permit.” Georgia law requires an officer who is arresting you for DUI to seize your license. The citation you receive acts as a temporary driving permit for a period of 45 days from the date you were arrested or while your ALS hearing is pending. For information on filing an ALS petition, please check out this blog post: https://www.peachstatelawyer.com/georgia-administrative-license-suspension-als-hearings-during-the-pandemic/

If your license was valid at the time of arrest, the officer MUST give you this permit. If you did not receive the permit and your license was valid, let us know so that we can contact DDS on your behalf.

This permit, unlike a restricted license or a limited permit, is functionally the same as your regular license. You can travel for work or leisure without restriction on this permit. Additionally, you can find your drivers license number on your citation and visit DDS.georgia.gov and select “check license status” to actually view whether or not your license is valid. So long as the website says your license is valid and you have the 1205 form, you should not have to worry about getting pulled over and not having your license on you. However, be sure to bring the 1205 form with you when you drive in case you are stopped.

If your license has been taken because of a DUI arrest, DO NOT WAIT. Call us today. You have 30 days from the date of the arrest to try to save your license, and on the 46th day after the arrest, the 1205 permit expires. We can help.

Call us at (404)-581-0999!

Georgia DUI: How many points in a DUI?

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In Georgia, a driver’s license will be automatically suspended if engaged in serious traffic violations. Therefore, a DUI does not accumulate any points on your driving record, also called a Motor Vehicle Report (MVR) but carries immediate consequences. For a first DUI conviction (for drivers over the age of 21), your license will be suspended for 12 months by DDS (Georgia Department of Driver Services).

 

Ways a driver can reinstate their license after six months:

  • Your license has already been suspended for 120 days;
  • Completion of a state-approved Risk Reduction Program; and
  • Submit a $210 fine for license reinstatement fees.

Note that this reinstatement will depend on your driving history and will permit you to drive to and from work and school and other permissible places.

 

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.

DUI: Drugs

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DUI drugs charges can be a source of confusion for defendants and lawyers alike. This article will explore these laws and explain their meaning, what must be proven, how they are proven, and how to defend against them.

There are three ways to charge DUI Drugs cases: (1) DUI Drugs – Less Safe; (2) DUI Drugs – Per Se; and (3) DUI Drugs – Combined Effect.

DUI Drugs – Less Safe

Georgia law prohibits a person from driving a vehicle while under the influence of any drug to the extent that it is less safe for the person to drive. O.C.G.A. 40-6-391(a)(2). This “less safe” statute requires proof (beyond a reasonable doubt) that the quantity or amount of the prescribed, illicit, or even over-the-counter drug in the person’s system caused impairment or rendered the person to be a “less safe driver.” Therefore, a person can be prosecuted even though the drugs were legally prescribed or were provided over-the-counter, so long as consuming those drugs caused you to be a less safe driver.

The “less safe” provision is the most common way DUI drugs charges are prosecuted. The State is not required to prove the accused had a particular level of drugs in their system. As a result, the State may prosecute even though no chemical test exists. The arresting officer will look for the following indications of impairment:

  • Admitting to using drugs
  • Bloodshot or watery eyes
  • Slurred or slow speech
  • Presence of drugs in vehicle or on person
  • Bad driving
  • Poor performance on Standardized Field Sobriety Tests

The key to defending these “less safe” drugs cases is raising doubt as to whether the drugs taken were the actual cause of the bad driving complained of. This causation element is something the State is required to prove. There are many reasons for bad driving unrelated to the consumption of drugs. In addition, defense counsel should raise challenges to the arresting officer’s training and experience in detecting and investigating DUI Drugs cases. In many instances, the arresting officer does not have the degree of training required to properly investigate these cases such as an officer who is qualified as a Drug Recognition Expert (DRE). Furthermore, defense counsel should raise a Harper challenge to the scientific validity of the Romberg Field Sobriety test if that test was performed by the accused. [1]

DUI Drugs – Per Se

Georgia law makes it illegal for a person to operate a vehicle while there is any amount of marijuana or a controlled substance, as defined in O.C.G.A. § 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether any alcohol is present in the person’s breath or blood. O.C.G.A. 40-6-391(a)(6).

Given the language of the law, the mere presence of a drug (prescribed or not) will constitute a violation of this code section. The question becomes how an arresting officer would know whether the accused had a valid prescription or not? Without an admission, this would be difficult for a prosecutor to prove.

Issues of proof aside, Love v. State, 271 Ga. 398 (1999), has essentially wiped out the “DUI Drugs – Per Se” law entirely. The Love case held that O.C.G.A. § 40-6-391(a)(6), was too broadly drawn, as it incriminates both legal and non-legal users of marijuana, constituting a violation of the Equal Protection clause of both the Georgia and United States Constitutions. This is the primary reason most DUI Drugs cases are prosecuted as “Less Safe” cases.

What remains of the DUI Drugs – Per Se statute is to punish those cases where someone is driving with drugs in their system which offer no lawful use (cocaine, heroin, etc.).

DUI Drugs – Combined Influence

Under O.C.G.A. § 40-6-391(a)(4), a person is prohibited from driving a vehicle while under the influence of any two or more of the substances provided in the DUI code section (alcohol, drugs, or toxic vapors) to the extent it is less safe for the person to drive.

Again, we see the State being required to prove the accused was a less safe driver because of the combined effects of two or more intoxicants (alcohol and drugs – prescribed or not). Although these cases present greater challenges, a skilled attorney can raise doubt as to whether the combined effect of intoxicants actually caused less safe driving.  

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] The Romberg test consists of the subject tilting their head back, closing their eyes, and counting in their head until the subject believes thirty seconds has elapsed and then telling the officer when they believe those thirty seconds had elapsed.

Is DUI a Felony?

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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

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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: One Leg Stand Test

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Both the Walk and Turn (W&T) and One Leg Stand (OLS) tests are considered, “divided attention” tests. The officer is determining how well a subject can multitask (mentally focus on multiple tasks or ideas at once). We will see there are two stages: an instruction stage and a performance stage. For the purposes of today’s article, we will just discuss the OLS test.

One Leg Stand (OLS)

Test Conditions

The OLS Test requires a reasonably dry, hard, level, and non slippery surface in relatively safe conditions. Standardizing this test for every type of road condition is unrealistic. Therefore, if road conditions are not ideal, officers are trained to:

  1.  Ask subject to perform the test elsewhere; or
  2.  Only administer HGN

The original research studies of this test suggest that individuals over 65 years of age; people with back, leg or inner ear problems; or people who are overweight by 50 or more pounds may have difficulty performing this test. In addition, the original studies suggest that individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.

Test Procedures

The test is initiated by the officer giving the following instructions, accompanied by demonstrations:

  1. “Please stand with your feet together and arms down at the sides, like this.” Officer demonstrates placement of feet and arms.
  2. “Do not start to perform the test until I tell you to do so.”
  3. “Do you understand the instructions so far?” Officer trained to receive some affirmative response before continuing.
  4. “When I tell you to start, raise either leg with the foot approximately six inches off the ground, keeping your foot parallel to the ground.” Officer demonstrates the position.
  5. “Keep both legs straight and your arms at your side.”
  6. “While holding that position, count out loud in the following manner: ‘one thousand one, one thousand two, one thousand three,’ and so on until told to stop.” Officer demonstrates counting while maintaining position.
  7. “Keep your arms at your sides at all times and keep watching your raised foot, do you understand?” Officer trained to ensure subject indicates understanding and answer any of subject’s questions regarding the test.
  8. “Go ahead and perform the test.”

The officer is trained to always time the thirty seconds in which they evaluate the test. The test should be discontinued after 30 seconds. If the subject places his or her foot down, the officer is trained to instruct the subject to pick foot up again and continue counting from where the subject’s foot touched the ground.

Test Interpretation

There are a maximum number of four clues on this test. Officers are trained that if the subject shows two or more clues or fails to complete the test, there is a probability of impairment.

Subject sways while balancing. This clue refers to side to side or back and forth motion while the subject maintains the One Leg Stand position. Swaying means a distinct, noticeable side to side or front to back movement of the elevated foot or of the subject’s body. Slight tremors of the foot or body should not be interpreted as swaying.

Uses arms to balance. This clue is recorded if the subject moves his/her arms 6 or more inches from the side of the body in order to keep balance.

Hopping. This clue is recorded if the subject is able to keep foot off the ground, but resorts to hopping to maintain balance.

Puts foot down. This clue refers to when the subject is unable to maintain the OLS position by placing the raised foot down one or more times during the thirty second count.

It is possible for the officer to observe two clues simultaneously. If a subject is unable to perform the test, the officer is trained to record observed clues and document the reason for not completing the test.  

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.

DUI: License Suspension

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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. 1. Submit an original certificate of completion of an approved DUI Alcohol/Drug Use Risk Reduction Program;
  2. 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.”

What if I refused to take the requested test and lose the ALS hearing?

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

DUI- Vehicles

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Can I get a DUI on a bike?

It may be surprising to hear that the answer is yes, and that we have had these before, but it is true. Under Georgia law, you can get a DUI behind the wheel of many vehicles.

What’s the Law?

Georgia law makes it a crime to drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive; or the person’s alcohol concentration is 0.08 grams or more.[1]OCGA § 40-6-391 (a).

What constitutes a vehicle?

            A “vehicle” is defined in OCGA §40-1-1 (75) to mean “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” This is a very broad definition as opposed to the more restrictive definition of, “motor vehicle,” found elsewhere in the Georgia statute.

            “Motor Vehicle” is defined as, “every vehicle which is self-propelled other than an electric personal assistive mobility device.” Therefore, both “vehicle” and “motor vehicle” cover the following devices: 

  • Lawn Mowers
  • Golf Carts
  • Motorized Scooters (electric or gas)
  • ATV/ Four Wheeler
  • Tractors

            But, as we saw earlier, the Georgia DUI statute applies to any moving vehicle and does not restrict itself to motor vehicle. As a result, we are left with a very broad definition which coulden compass a wide variety of devices one would not ordinarily associate with the offense of DUI. Take for example the following devices:

  • Bicycles and Rollerblades
  • Hoverboards
  • Skateboards
  • Horse-drawn Carriage
  • Construction Equipment

            In summary, if you decide to have a drink or two, please consider the wide variety of devices that fall under the term, “vehicle,” so as to avoid an arrest for DUI. If you do find yourself arrested for DUI, call our office at 404-581-0999 and let experienced attorneys guide you through this process. 

by Casey Cleaver

[1] See Georgia Statute for full description

New Georgia Drivers License Suspension Rules after DUI Arrest

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by Ryan Walsh

On July 1, 2017, the law changed in respect to administrative license suspensions after DUI arrests for drivers with a Georgia driver’s license under Georgia law.

In Georgia, an officer can petition the Department of Driver Services to suspend your driver’s license under the Georgia implied consent statute if the officer places you under arrest for Driving under the Influence (DUI), reads you the Georgia implied consent notice, and you either refuse to submit to the requested sample of your blood, breath, or urine, say nothing, or present a sample that is positive for alcohol at a level over .08, or shows the presence of drugs.

The officer must then issue to you a DS-1205 form stating the reason for the license suspension. This DS-1205 form acts in three ways. It is a notice of license suspension. It is a temporary driving permit. And it also informs you of your right to appeal this suspension of your driver’s license based on the Georgia implied consent law.

As of July 1, 2017, when you are arrested for DUI in Georgia and issued a DS-1205 form, that form now serves as a forty-five (45) day temporary driving permit. You have two options to proceed, and if you do nothing your Georgia driver’s license will be suspended at the end of 45 days.

Your first option is to use the old procedure to request a hearing. You have 30 days (not business days) to request a hearing regarding the suspension of your license by submitting a written request along with a money order for $150.00 to the Department of Driver Services. Requesting a hearing begins a process which is identical to the old method of Administrative License Suspension hearings with the same potential outcomes. We have writtentwo blogs outlining the old procedure which can be read here: http://www.peachstatelawyer.com/ds-1205-where-is-my-license-and-whats-this-piece-of-paper/ and http://www.peachstatelawyer.com/ds-1205-als-this-sheet-of-paper-is-nice-but-i-want-my-license-back-man/

Your second option is to forego asking for a hearing regarding the license suspension. Instead, you can apply for an ignition interlock device limited permit through the Department of Driver Services. To apply for a permit you must go to the Department of Driver Services and do the following things within thirty (30) days of receiving the DS-1205 form: (1) Install and maintain an ignition interlock device with a vendor of your own choosing for the twelve month period of your ignition interlock device limited permit. Once the Ignition Interlock Device is installed you can go to a Georgia DDS location and pay a $25.00 ignition interlock device limited permit fee, surrender your Georgia driver’s license, and execute an affidavit stating you waive your right to a hearing under the Georgia implied consent law to obtain an ignition interlock device limited permit.

Your permit will be revoked if you are convicted of a moving violation under the laws of the State of Georgia, if you have been found to have violated the terms of the limited driving permit, or you have been found to have tampered with the ignition interlock device.

You can only drive on your ignition interlock device permit for the following reasons: (1) to and from work along with performing the normal duties of your job, (2) receiving medical care or obtaining prescriptions, (3) attending school, (4) attending treatment, (5) attending court ordered driver education, (6) attending court, (7) attending community service, (8) taking a family member to work, school, or a medical appointment, (9) court ordered activities, and (10) visiting the ignition interlock provider monthly.

At the time you apply for your Ignition Interlock permit you waive your right to a hearing challenging the administrative license suspension. You must be over 21 and have a Georgia driver’s license to apply for an ignition interlock device permit. You will not be given a permit if you have a DUI conviction on your record with an arrest date within the past five years. Applying for an interlock permit will remove your CDL status if you have a commercial driver’s license.

If you choose to go the Ignition Interlock Device Permit route, you must have the ignition interlock device installed within ten days of receiving the permit. The device must be installed for a minimum of 120 days. You cannot drive any vehicle that does not have an ignition interlock device installed on it. If your case is resolved with a disposition that is not DUI while you have an ignition interlock device permit, you must remain on the permit for the entire twelve months unless you gave an implied consent sample on a DUI alcohol case. Refusal cases must continue on the permit for the entire twelve months, even if their case is dismissed or reduced.

Time spent on an ignition interlock device permit is credited towards any driver’s license suspension for a DUI conviction. You must pay a $100 reinstatement fee at the expiration of your ignition interlock device permit to reinstate your full driving privileges.

These rules are a significant departure from the longstanding procedures regarding Georgia driver’s licenses after DUI arrests. Call us today at 404-581-0999 if you have any questions about your drivers license.