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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.

 

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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.

Georgia DUI Law: Calendar Call

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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.

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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

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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

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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. 

Georgia DUI Law: Challenging the Stop, Speeding

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

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

The Offense

Speeding is one of the most common traffic offenses associated with DUI arrests in Georgia. This is likely because officers are equipped with speed detection devices and it is the type of offense that catches an officer’s eye.

In order to fully understand speeding laws in Georgia, you would have to refer to various parts of five different statutes: O.C.G.A. §§ 40-6-180, 40-6-181, 40-6-182, 40-6-183 and 40-6-188. The provisions of O.C.G.A. § 40-6-180 also cover the catch-all offense known as “driving too fast for conditions.”

Georgia has “absolute” speed limits, meaning a violation occurs even at one mile per hour over the posted speed limit. Unless otherwise posted, the absolute speed limits are as follows:

  • 20 miles per hour in school zones
  • 30 miles per hour in urban and residential districts
  • 35 miles per hour on unpaved country roads
  • 65 miles per hour on sections of physically divided highways without full access control on the state highway system
  • 70 miles per hour on interstate highways, and
  • 55 miles per hour on other roadways.

Absolute limits aside, Georgia’s basic speeding law prohibit driving at a speed greater than is “reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing.” Therefore, a driver must always drive at a safe and reasonable speed. What is safe and reasonable depends on the circumstances. 40 miles per hour on a clear day with no traffic is more safe and reasonable than 40 miles per hour in a snow storm with heavy traffic.

Penalties

Under Georgia law, technically, speeding offenses are misdemeanors and are therefore punishable with up to a maximum fine of $1,000 and up to one year in jail. Although these are the maximum punishments, speeding cases generally do not result in jail time.

For a first time speeding offense, the maximum fines are as follows:

  • $0 for speeding by 5 miles per hour or less over the limit
  • $25 for speeding by more than 5 but less than 10 miles per hour over the limit
  • $100 for speeding by more than 10 but less than 14 miles per hour over the limit
  • $125 for speeding by more than 14 but less than 19 miles per hour over the limit
  • $150 for speeding by at least 19 but less than 24 miles per hour over the limit
  • $500 for speeding by at least 24 but less than 34 miles per hour over the limit

Speeding in “work zones” can be punished by fines ranging from $100 to $2,000 and/or jail up to twelve months as this is a “high and aggravated” misdemeanor. Also, anyone convicted of speeding at 85 miles per hour, or 75 miles per hour on a two lane highway, will be deemed a “super speeder,” causing an additional $200 fine to be added to the sentence. These fine amounts are base fines and do not include statutory surcharges which significantly increase the total fine amount. A sentencing judge can always add on defensive driving courses as a condition of your sentence. In addition to fines and course, a motorist can also expect points to be assessed on their license by DDS (2-6 points depending on the offense).

Challenging the Stop

A speeding charge may be challenged through a motion to suppress or a motion in limine which are designed to attack the stop, arrest, or any evidence gathered as a result of an unlawful stop and/or arrest.

The State has the burden of proving each and every law regarding speed detection devices.

First, the arresting officer will attempt to establish they visually estimated your speed. Visual estimation of speed is sufficient to convict in Georgia.

In order to establish a “visual estimation,” the officer must testify that: he/she is trained in the visual estimation of speed for vehicles, how long he/she has been trained, how he/she was trained, how many visual estimations he/she has made in their career, and that he/she is accurate to within +- 5 mph of their estimation.

The State must also prove:

  • The department issuing you the citation has a permit issued by the Department of Public Safety to operate speed detection devices. The prosecutor may either admit this document into evidence or just have the officer testify that such a permit exists. O.C.G.A. 40-14-2.
  • The prosecutor must prove that the location where you were speeding is on the Department of Public Safety’s list of approved locations for the use of speed detection devices. Many prosecutors think the officer’s testimony alone is enough to satisfy this requirement, but the prosecutor must admit this list into evidence. O.C.G.A. 40-14-3.
  • The prosecutor must prove that the agency issuing the citation has a permit from the Federal Communications Commission to operate the device, and that device was inspected by a technician before it was placed into service and that the device is serviced by the technician annually. This provision only applies to citations based on radar evidence. This provision does not apply to speeding tickets issued based on Lidar/laser, VASCAR, pacing, or other forms of speed detection. O.C.G.A. 40-14-4.
  • The prosecutor must prove that the officer tested his speed detection device for accuracy at the beginning and end of his shift and that he recorded the results in a logbook. This may be proven through oral testimony, or the prosecutor may admit the logbook into evidence. O.C.G.A. 40-14-5.
  • The prosecutor must prove that there are signs at least 24 by 30 inches when you enter the county, city, etc. warning that there are speed detection devices in use. O.C.G.A. 40-14-6.
  • The prosecutor must prove that the officer was not using the speed detection device within 500 feet of these signs. O.C.G.A. 40-14-6.
  • The prosecutor must prove that the officer was not using the speed detection device within 500 feet of a change in speed limit sign. O.C.G.A. 40-14-6.
  • The prosecutor must prove that the officer operating a stationary speed detection device was visible for at least 500 feet to traffic. O.C.G.A. 40-14-7.
  • The prosecutor must prove that your speed was more than 10 mph over the posted speed limit unless you are in a school zone, historic district, or residential zones all of which must be properly marked. An area with a speed limit of 35 mph is not automatically a residential zone. The area must be properly marked as a school, historic, or residential zone. O.C.G.A. 40-14-8.
  • The prosecutor must prove you were not within 300 feet of a change in speed limit sign (if inside a municipality) or within 600 feet of a change in speed limit sign (if outside a municipality). O.C.G.A. 40-14-9.
  • The prosecutor must prove that there was not a change in the speed limit in the 30 days prior to your being issued the ticket at the location where you were given the ticket. O.C.G.A. 40-14-9.
  • The prosecutor must prove the location where you received the ticket is no on a grade in excess of 7 percent. Just because a location is listed on the Department of Public Safety’s list of approved locations for the use of speed detection devices this does not mean the location has been measured for the grade. This is an excellent source for cross-examination. O.C.G.A. 40-14-9.
  • The prosecutor must prove the officer issuing you the ticket has a permit to operate speed detection devices. This may be proven by admitting the permit or having the officer testify that he is certified. O.C.G.A. 40-14-10.

In addition to these technical requirements, an experienced attorney can also raise challenges to errors committed by the operator of a speed detection device. Examples include, but are not limited to: lack of training, misidentifying your vehicle as the speeding vehicle, improper movement or aiming of the speed detection device, the officer’s visibility and/or reaction time, interference with the device (weather conditions, radio interference, air conditioning, reflective surfaces).

As we can see, there are many intricate requirements the prosecution must properly satisfy in order to prove speeding. Because of these various requirements, it is highly recommended you contact an experienced attorney who can raise these challenges in a pre-trial motion or at trial.

Contact Us

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

VIDEO – Effects on a Drivers License of a First DUI Conviction in a Five Year Period in Georgia

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by Ryan Walsh and Scott Smith

We get questions all the time regarding what happens to your Georgia drivers license after a DUI conviction. The Georgia Department of Driver Services looks at Drivers License suspensions for DUI convictions in five year periods from the date the incident occurs.

The information provided in this video blog is for people that hold Georgia drivers licenses. If you do not hold a Georgia drivers license, you will not be eligible for a limited driving permit in Georgia and must serve the full period of suspension before you are eligible for a drivers license in Georgia.

If you have an out of state drivers license, it is important to consult with an attorney licensed to practice in the state you hold your drivers license about the consequences of a DUI on your out of state drivers license. Please remember, if you do not have a Georgia drivers license, you will not have the privilege to drive in Georgia during the suspension period.

If this is your first conviction for an arrest occurring in the past five years, the period of drivers license suspension is 120 days. You will be eligible for a limited driving permit for those 120 days if you have not had a conviction for an offense that suspends your Georgia drivers license in the past five years.

The limited driving permit costs $25 and is valid for one year, even though the period of suspension is only 120 days. To obtain a limited driving permit you must also have a First DUI Conviction Affidavit issued by the Court or a certified copy of your disposition.

A Limited Driving Permit means you can only use your car for the following:

  • Going to your place of employment or performing the normal duties of your job
  • Receiving medical treatment or obtaining prescription drugs
  • Attending college or school if you are regularly enrolled as a student
  • Attending Addiction or Abuse treatment for alcohol or drugs by organizations recognized by DDS
  • Court ordered driver education, driver implement, or alcohol and drug treatment programs
  • Attending court, reporting to a probation office or officer, or performing community service
  • And Transporting an unlicensed immediate family member for work, medical care, or prescriptions, or to school.

After the 120 day period you can reinstate your license if you pay the $210 reinstatement fee and submit an original certificate of completion of a DDS approved DUI Alcohol or Drug Use Risk Reduction Program.

Our attorneys and staff are experts in the field of Georgia DUI. If you have a question in regards to your Georgia drivers license suspension or DUI arrest, please call us immediately at 404-581-0999.Addressing a DUI case early is the key to gathering the necessary evidence to present the best defenses in your case.