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Georgia DUI by Driver with Out of State License

A Georgia DUI arrest is a serious issue, even, and perhaps especially, for out-of-state drivers. Not only can a mere DUI arrest affect your ability to drive in Georgia, a conviction of DUI can also be reported to your home state and cause a driver’s license suspension. This article will discuss the implications of a DUI arrest and conviction for drivers licensed outside the state of Georgia.

Administrative License Suspension Upon an Arrest

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.

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 or application for an ignition interlock permit within 30 actual days (not business days) of the service of the 1205 Form.

Failure to timely file or losing an ALS hearing will cause your driving privileges in Georgia to be suspended in GA (for how long depends on whether you refused the request for a chemical test under the implied consent warning). Importantly, your home state may adopt this suspension for your out-of-state license.

Criminal Conviction Suspension

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. For drivers licensed in Georgia, you can get a limited driving permit by receiving an “Affidavit of First Conviction” from the sentencing judge which will allow you to drive for certain limited purposes.

However, Georgia law only allows for the DUI suspension of a Georgia driver’s license.  Therefore, technically, an out-of-state driver can only have their privilege to drive in Georgia suspended by a sentencing court.

So, to the extent a Georgia driver is able to obtain a limited driving permit, an out-of-state driver does not qualify for such permit. Furthermore, Georgia will report the suspension to authorities in your home state which may have greater license suspension penalties for DUI than Georgia.

Contact Us

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

Georgia DUI Law: Binding Your Case Over

A great deal of misdemeanor cases in Georgia, such as DUI, shoplifting, possession of marijuana, and minor traffic infractions begin in Municipal Court. This is because municipal courts exist separately from the State Court system. As an individual sovereignty, the various cities (or “municipalities”) across the state are free to adopt their own laws, called ordinances. These ordinances may or may not also be State law violations. This is the key determination in whether you are permitted to “bind your case over” to State Court. The law controlling whether a case may be bound over will be discussed below.

What does “binding a case over” mean?

Imagine yourself seated in a municipal courtroom appearing for a DUI charge. The judge will instruct you that when your name is called you are to make an “announcement” on what you want to do with your case. The judge will likely say your options are: (1) guilty; (2) nolo contendere; or (3) not guilty. If you answer (3) not guilty, the judge will normally tell you your case will be scheduled for a bench trial in municipal court where the same judge will be deciding your case (rather than a jury). What the municipal court judge often does not tell you is that one of your options in pleading “not guilty” is to request a jury trial on the case. When you request a jury trial, and the charge is eligible to be bound over, the case is then removed from the hands of the Municipal Court and is bound over to the State Court system to the county in which the Municipal Court resides.

For example, if your case begins in the Municipal Court of Atlanta, Municipal Court of Dunwoody, Municipal Court of Alpharetta, or any other Municipal Court within Fulton County, your case will be bound over to Fulton County State Court. Once the case is bound over, the case essentially hangs out in limbo for a while (could be weeks or several months depending on jurisdiction) unless or until the case becomes “accused” in State Court. When a case becomes “accused,” this simply means the State Court (through the prosecutor’s office) has picked up the case and charges have now been formally brought in State Court.

It is important to note that for misdemeanor cases in Georgia, the State has two years to accuse the case measured from the date of arrest. If the case is not accused within this two year period, the State is prevented from prosecuting the matter under the statue of limitations. Also, the State Court prosecutor has the authority to add, amend, dismiss, or reduce the charges. Therefore, the charges in State Court could be different than the ones you were facing in Municipal Court.

There is a great benefit to binding the case over to State Court. Not only are you entitled to a jury trial, but you also have a better opportunity to fight the case through motions challenges. These are largely unavailable in Municipal Court. Furthermore, State Court prosecutors seem to be more receptive to plea negotiations for more serious charges where their Municipal Court counterparts rarely budge. You also get two bites at the apple by starting the case in Municipal Court. If the Municipal Court prosecutor is unwilling to reduce or dismiss the charges, then the decision is easy, bind the case over to State Court and renew negotiations there.

Is My Case Eligible to Be Bound Over? 

Article I, Section I, Paragraph XI of the Georgia Constitution of 1983 guarantees a defendant in a criminal case the “inviolate” right to a “public and speedy trial by an impartial jury.” GA CONST Art. 1, § 1, ¶ XI. However, Georgia courts recognize that some cases are not eligible to be bound over to State or Superior Court by distinguishing crimes, “which are solely violations of local or municipal ordinances[,]” versus crimes where the offense is a violation of an ordinance as well as a misdemeanor under State law. Geng v. State, 276 Ga. 4825 (2002). Where the offense is both a violation of local ordinance and a state level offense, the State Court of the county where the alleged incident took place would have “concurrent jurisdiction” over the case. O.C.G.A. § 15-7-4. If the State Court has concurrent jurisdiction over the matter, then the case is eligible to be bound over.

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.

Georgia DUI Law: Calendar Call

There are several court dates in the life of a DUI case. The first court date is arraignment. This is where the court formally notifies the defendant of the charges and asks the defendant whether they plead guilty or not guilty. After arraignment, the case is then scheduled for a “calendar call,” court date.

What is Calendar Call?

The purpose of calendar call is for the parties to appear in court and “announce” to the judge the status of the case. This way, the judge will know whether the case is going to be a trial, a plea, or if the case needs to be continued due to an outstanding issue (missing evidence, witness unavailability, accountability court applications, scheduling conflicts, etc.). Calendar calls promote judicial efficiency.

Who Must Appear?                                                             

Unrepresented defendants must appear at calendar call. Failure to appear will cause a bench warrant to be issued for your arrest and forfeiture of your bond. At calendar call, an unrepresented defendant who does not desire to hire an attorney may announce “pre-trial” at calendar call. This announcement signals to the judge that the defendant wishes to have a brief conversation with the prosecuting attorney about the case in an effort to reach a resolution. In this “pre-trial” conference, the defendant should ask the State what their offer is on the case. If acceptable, then accept. If the offer is unacceptable, or confusing, or seems fishy, the defendant should hire a lawyer. It is important to remember any statements the unrepresented defendant makes to the prosecutor can be used against the defendant at trial.

Represented defendants may have to appear at calendar call, depending on the judge. Most judges will allow the attorney to appear and make an announcement on the defendant’s behalf. Therefore, it is critically important attorneys know the judge’s preferences in advance of court as to avoid a possible bench warrant. If a judge is particular about represented defendants appearing in court, the attorney may still be able to excuse the defendant by filing a “waiver of presence,” with the court. This is simply a notarized document signed by defendant stating they waive the right to be present. Furthermore, some judges will allow attorneys to make their calendar call announcements via email in advance of court. This saves the attorney and possibly the defendant a trip to court.

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.

Georgia DUI Law: How a DUI Becomes a Felony

The vast majority of DUI arrests are charged as misdemeanors in Georgia. There are certain circumstances, however, that will cause the DUI charge to be elevated from a misdemeanor to a felony. This article serves to explain the three major ways a driver in Georgia could obtain a felony DUI charge.

Multiple Prior DUI Convictions

A fourth DUI arrest within a ten year period[1] that results in a conviction is punishable as a felony. A first, second, or third DUI conviction in a ten year period will be treated as a misdemeanor, although the third conviction will be a high and aggravated misdemeanor.

If convicted of a fourth offense within a ten year period, the judge has the authority to impose a prison sentence between one and five years (all of which may be on probation except 90 days).

Causing Serious Injury or Death

You can be charged with a felony if you seriously injure another person while driving under the influence. Under O.C.G.A. 40-6-394(b), “[a]ny person who, without malice aforethought, causes an accident that results in bodily harm while violating Code Section 40-6-390 or 40-6-391 commits the crime of serious injury by vehicle. A person convicted of violating this subsection shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years.” Bodily harm is defined as, “an injury to another person which deprives him or her of a member of his or her body, renders a member of his or her body useless, seriously disfigures his or her body or a member thereof, or causes organic brain damage which renders his or her body or any member thereof useless.”

Similarly, “[a]ny person who, without malice aforethought, causes the death of another person . . . [while driving under the influence] shall be punished by imprisonment for not less than three years nor more than 15 years. O.C.G.A 40-6-393.

High Risk Operator

The law recognizes people who are convicted of DUI should be punished more severely because they are transporting children at the time of impaired driving. This occurs in two ways.

A third conviction of DUI child endangerment will result in a felony charge. This offense is punishable by one to five years imprisonment and a fine of $1,000 to $5,000.

Finally, under O.C.G.A. 40-6-391.3, a school bus driver convicted of DUI while driving a school bus is punishable as a felony. The school bus driver will face a one to five year prison sentence and a fine between $1,000 and $5,000.

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] Measured from the dates of arrest (but only since July 1, 2008). Arrests resulting in convictions prior to this date do not apply towards the total number of arrests for this purpose.

Georgia DUI Law: Motion to Suppress

A motion to suppress seeks to exclude illegally obtained evidence based upon a constitutional violation.[1] The purpose of a motion to suppress is to determine, before trial, whether particular evidence will be admissible at trial. If the judge finds the evidence is not admissible, the prosecuting attorney may determine they cannot go forward on the case and dismiss it entirely. If the judge rules the evidence is admissible, the defendant may be more inclined to enter a guilty plea knowing the objected to evidence will be admitted.

A motion to suppress must:

  • Be made in writing
  • Raise a constitutional ground or basis
  • Allege sufficient facts to place the prosecution on notice of the claim of unlawfulness
  • Be filed no later than 10 days after arraignment (unless judge allows for extension in writing)

A failure to comply with these requirements could result in a waiver of your motion and ability to resolve these issues before a trial.

Once a motion to suppress has been filed, the burden of proving the lawfulness of the legal issues raised is placed on the State. A defendant is general entitled to an evidentiary hearing unless the parties agree to the facts. If so, the judge may rule on the motion without a hearing as a matter of law. The hearing must occur outside the presence of a jury.

For example, in the context of a DUI case, a defendant should file a motion to suppress the results of a chemical test (ex. breath or blood) if there was insufficient probable cause to arrest. The prosecutor would have to call the arresting officer to court and prove to a judge there was probable cause to arrest. Not only could a judge rule in your favor, but a defendant also receives the benefit of officer testimony made under oath. Therefore, if the officer later testifies at trial to something inconsistent with what that officer said at the motion to suppress, the officer’s prior inconsistent statement could be used to impeach that officer (showing they are not credible). 

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[1] A motion to suppress does not apply to (1) attacks on the validity of charging documents (accusations or indictments); (2) chain of custody issues; or (3) to testimony. 

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.

DUI: License Suspension

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

Georgia DUI- What to Do

Remain calm. Getting pulled over by the police is a stressful experience. By keeping cool and following these tips you will greatly decrease the likelihood of a DUI arrest and/or conviction.

Pull Over!

At this point the police officer will be documenting everything you do. You should slow down, signal, and pull over to the nearest and safest place possible. Even if you believe the officer is going to stop someone else, state law requires drivers to yield to emergency vehicles with activated lights.

Put your car in park, engage the parking brake, and turn off the engine. Roll down both driver and passenger front windows as the officer may approach from either side. You don’t have to roll the windows all the way down, just enough as to where the officer can clearly see and hear you. However, if the officer asks you to roll them all the way down, do so.

Place both hands on the steering wheel so the officer can clearly see them. Do not move your hands out of sight or in a fast motion. Doing so could unnecessarily escalate the situation. Also, address the officer as: officer, sir, or ma’am. Respect goes a long way with law enforcement, especially if they suspect you of DUI.

Have Your Documents Ready

Be sure to always keep your updated proof of insurance, driver’s license, and vehicle registration in a place that is easily accessible. If you are fumbling around or have difficulty in producing these items, the officer will perceive this as evidence of impairment and include it in their report. By keeping these documents together and accessible, you can save yourself a lot of trouble.

What to Say

Say as little as possible. Remember, everything you say and do is being documented in the officer’s mind and may also be recorded on a body or dash camera or microphone. Your answers to questions, and any inconsistencies in those answers, will be used in court against you if you are arrested for DUI. In addition, the less you say the less likely an officer can reasonably testify to you having “slurred speech” or “odor of alcohol” coming from your breath. These phrases appear frequently in Georgia DUI cases.  

The officer will likely begin the encounter by asking something like, “Do you know why I pulled you over?” This question is designed to get you in trouble. The best way to answer this question is by simply saying, “no.” By saying, “yes” you invite having to explain yourself. If you admit to breaking a traffic law, you not only establish probable cause to arrest for the traffic violation, but you also bolster the officer’s decision to stop your vehicle.

Next, the officer will likely ask you questions like:

  • Have you been drinking tonight?
  • How much have you drank tonight?
  • What did you drink tonight?
  • Where are you coming from?
  • Where are you going?

DO NOT ANSWER THESE QUESTIONS. Instead, politely say something to the effect of, “I do not wish to answer these questions.” If the officer tries to force the issue, politely ask if you need to get a lawyer.

UNDER NO CIRCUMSTANCES should you ever, ever, admit to drinking or describe how many drinks you’ve had. By doing so you are practically begging for the officer to arrest you, or at least thoroughly investigate you for DUI.

Decline to Perform Field Sobriety Tests

If an officer asks you to step out of the vehicle, do it. But DO NOT agree to perform any field sobriety tests (eye tests, alphabet tests, numerical counting tests, walking tests, balancing tests, etc.) DO NOT agree to a roadside breath test (portable breath test). Although the BAC number of a portable breath test is inadmissible (as opposed to the much larger Intoxilyzer breath machine at the police station or jail) , a positive result is a green light for the officer to arrest for DUI. A simple, “no thank you” or “I respectfully refuse” should be sufficient.

These tests are voluntary and are designed elicit failure. The officer who is deciding whether to arrest you will be the sole judge of your performance. Even if stone sober, you should decline to perform field sobriety tests.

If You Are Arrested…

Do not argue with the officer, you will not win. Do not ask for sympathy or try to explain why you cannot be arrested (work, children, etc.); you will only hurt your case. Remain silent. Again, everything you say can and will be used against you. ASK TO SPEAK WITH AN ATTORNEY even if the officer does not advise you of your right to an attorney.

When You Get to the Police Station

ASK FOR AN ATTORNEY. Renew your earlier request to speak with an attorney. This will prevent the officer from asking you additional questions until you have spoken with an attorney. Call us at 404.581.0999 and we will be glad to assist you. If you have the opportunity to meet with an attorney, be sure to ask the officer for privacy.

DO NOT ANSWER QUESTIONS. If arrested, the officer is supposed to advise you of your 5th Amendment Rights before questioning you. DO NOT WAIVE YOUR RIGHTS by voluntarily speaking with police. REMAIN SILENT. If you do not understand your rights, tell the officer you do not understand your rights. The officer cannot offer legal advice but does have to clarify confusion about the consequences of taking or refusing a test.

Exercise Caution in Agreeing to a Chemical Test  

Be extremely careful in deciding whether to submit to a chemical test of your breath, blood, or urine. Chemical tests are a double-edged sword. Refusing a chemical test benefits you by depriving the officer of potentially incriminating evidence produced by the test. But, if you refuse you suffer a “hard suspension” of your driving privileges for one year. If you have consumed a significant amount of alcohol, you should refuse the State chemical testing.

If you do submit to a chemical test ASK FOR AN ADDITIONAL INDEPENDENT TEST. You have the right to independent testing and the officer must reasonably assist you in obtaining the test.

Talk to a DUI Lawyer

If you or someone you know has been arrested for DUI, do not hesitate to call us. The offense of DUI is a vast and complex collection of laws that continue to puzzle lawyers and judges alike. Our office will assist in defending your case and getting the best resolution possible.

 

by Casey Cleaver

Georgia DUI – License Hearing and Ignition Interlock Device

Do I fight for a license hearing or choose an Ignition Interlock Device? This is a tough question but one that must be answered within thirty days of your arrest. The Ignition Interlock device is a decent option for those individuals charged with a DUI-Refusal where they are facing a hard one-year suspension if they lose the administrative license hearing. The license hearing is the only recommended route for a DUI-Per Se case where you ultimately submitted to a chemical test of your blood, breath, or urine. This recommendation is based on the fact that you are eligible for a limited driving permit even if you lose the hearing. Installing the Ignition Interlock in this situation will just add unnecessary burden and expense. Still, many times we will advise you to submit a request for an administrative hearing even if you are facing the one-year hard suspension , but that decision is based on your personal needs and the facts of your case.

If you wish to file an appeal and request an administrative hearing, then the formal request must be mailed off within thirty days from the date of your arrest. Those are not thirty business days and that is a strict deadline so you must mail your request the Friday before the deadline if it falls on a weekend.

If you wish to go the Ignition Interlock route, then you must first install the Ignition Interlock device at a certified provider. With the Ignition Interlock installed, you must then go to your local DDS branch to show proof of installation and file a waiver of the administrative hearing.

Making this decision isn’t easy, but it’s often the first step of the DUI process. For an in-depth evaluation of all your options, call us today for a free consultation at 404-581-0999.