What happens if I loose my Administrative License Suspension hearing, or I did not request a hearing in time?

If you do not timely and properly request a hearing, then your driver’s license will be administratively suspended. Assuming you do obtain a hearing and the Administrative Law Judge finds against you, you would suffer a suspension of your driver’s license.

If you are a first time offender of the DUI law within a five year period and an Administrative Law Judge rules that you tested .10 grams or more on a State Administered chemical test, your driver’s license would be suspended for 30 days. However, you may be eligible for a temporary-driving permit.

If you are a second time offender, you would suffer a 120 day suspension, with no temporary driving permit available.

If you are a third time offender, you will loose your license for five years. You may apply for probationary license after a two-year period of suspension.

After any one of the above suspensions, you must apply for reinstatement by submitting proof of completion of a State approved DUI school and pay $210.00, or $200.00 when processed by mail, to have your driver’s license reinstated. Your license does not automatically become valid. The only good news about a license suspension pursuant to an Administrative hearing is that any such suspension will be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction or plea of guilty to DUI which arises out of the same violation for which the administrative license suspension was imposed.

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The arresting officer says that I refused the test, what does that mean?

If the Administrative Law Judge finds that you refused to take the State Administered Chemical Test, then your driver’s license will be suspended for a period of one (1) year. No temporary-driving permit would be available. This consequence could result in an effective suspension of your driver’s license for a longer period of time than would have been imposed if you had taken the test and registered above the legal limit.

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What are my chances of keeping a DUI off my record?

In evaluating the strengths and weaknesses of your case, it is important to consult with a lawyer and discuss the chronological order of all the events leading up to and including your Arrest. After fully analyzing these issues in the context of what ultimately may be considered as admissible evidence in a court of law, you will be in a better position to make an assessment of your chances of keeping a DUI off of your record. You must also take into account the results of your State Administered Chemical test, the available Court Procedures, the risks of punishment you are willing to accept, the consequences of losing your driver’s license, as well as economic factors such as attorney fees, increased insurance premiums, and potential employment ramifications. All of these issues will impact on your decision on how to proceed with your case and whether you will ultimately plea Guilty or Not Guilty.

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Do I need an Attorney?

In evaluating the strengths and weaknesses of your case, it is important to consult with a lawyer and discuss the chronological order of all the events leading up to and including your Arrest. After fully analyzing these issues in the context of what ultimately may be considered as admissible evidence in a court of law, you will be in a better position to make an assessment of your chances of keeping a DUI off of your record. You must also take into account the results of your State Administered Chemical test, the available Court Procedures, the risks of punishment you are willing to accept, the consequences of losing your driver’s license, as well as economic factors such as attorney fees, increased insurance premiums, and potential employment ramifications. All of these issues will impact on your decision on how to proceed with your case and whether you will ultimately plea Guilty or Not Guilty.

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What is the legal limit for DUI?

Most people, even if only vaguely familiar the DUI law, know something about a State administered chemical test reading, whether it be of blood, breath or urine. This knowledge of a test reading or score usually prompts the question, “What’s the legal limit?” Well, presuming the question to be asking for a specific level of blood alcohol, the answer is .10 grams or more.

“Per Se” violations vs. “Less Safe” violations

However, the law in Georgia, 40-6-391, which prohibits driving a motor vehicle while under the influence of alcohol, defines several ways that someone might be considered “DUI.” Each of the ways to violate the DUI law basically fall into one of the two categories below:

1. either the person charged with DUI was driving with an alcohol concentration of .10 grams or more, or was driving with a controlled substance (i.e. drugs) in his or her blood or urine, which is technically known as a “Per Se” violation; or
   

2. the person charged with DUI was under the influence of alcohol, drugs, or some other intoxicating substance to such an extent that he or she was less safe than he or she would have ordinary been while operating a motor vehicle, which is technically known as a “Less Safe” violation.

Unless your blood alcohol test reading was under a .10 grams, chances are you will be prosecuted under more than one “count” of DUI. Essentially, the state will try to prove beyond a reasonable doubt that your blood alcohol level was .10 grams or more, the “per se” count, and that you were an unsafe driver because you had too much to drink, which is the “Less Safe” count.

“Less Safe Violation”

But I thought .08 grams blood alcohol content (BAC) was the legal limit?

Many are under the impression that the legal limit is .08 grams. However, this is not necessarily so. Remember each DUI charge or “count” must fall into either the “Per Se” violation category or the “Less Safe” violation category. The State would have more than a difficult time proving that someone arrested for DUI who registered .08 grams blood alcohol content (BAC) on a State administered chemical test had a blood alcohol content of .10 grams or more. Therefore, in order to convict that person, the State would have to prove the person arrested was an unsafe driver because he or she had too much to drink. In a Less Safe case, a judge or jury would be allowed to consider all of the evidence in the case such as a video tape of the arrest, witness testimony, or the testimony of the Defendant to determine whether or not that person was a less safe driver. A test reading of .08 grams or .09 grams would not necessarily lead to a conviction.

“Per Se Violation”

“The test results say I was .10 or more grams, does that mean I am automatically guilty?”

No. A test reading of .10 grams does not automatically result in a conviction of DUI. However, the more difficult DUI charges to defend against are those that fall into this “Per Se” category. Assuming the State did not violate any of your constitutional rights and is able to properly introduce evidence into court that a chemical test result indicates that you had a blood alcohol concentration that was .10 grams or more, or contained traces of an illegal substance, the issue for the judge or jury to decide, becomes whether there is any reason to doubt the accuracy of that test result.

However, the testing method may certainly be attacked. No machine is infallible and 100% accurate. Recent articles address some of the problems associated with the Intoxylizer 5000, the breath testing machine used by the State of Georgia. The attention of jurors may be directed to the recognized variances and accepted margins of error in the testing method, which may provide reasons to doubt the accuracy of the test reading. Finally, if other evidence presented in the trial gives a jury reason to doubt the credibility of the test results, such as a video tape depicting you to be sober while performing field sobriety tests or false and embellished testimony of a police officer, the jury may find you not guilty.

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Will I lose my driver’s license?

No. Unless the State can prove beyond a reasonable doubt that you were driving under the influence of law as defined by Georgia law, 40-6-391, your driver’s license will not be suspended. This may ultimately require a finding of not guilty at trial.

Yes. If you plead guilty or are found guilty after a trial your driver’s license will be suspended. Georgia law requires your driver’s license to be suspended for a period of at least 12 months, even if this is your first DUI. However, if it is the first time you have been convicted of DUI, upon completion of certain requirements, you will be eligible to have your license reinstated after 120 days. Meanwhile, during your 120-day suspension, you may also apply to receive a temporary-driving permit that would allow you to drive to and from work. Additional punishment would also be imposed.

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What if the police officer did not read me my Miranda Rights?

After you were arrested for Driving Under the Influence of alcohol, the police officer should have advised you of your Implied Consent Rights, which explain a driver’s rights relating to the consequences of submitting, or refusing to submit, to State administered chemical test. These rights are different from the Miranda Rights often recited by police officers on television programs and in movies, which advise a person arrested of the right to remain silent, the right not incriminate himself, and the right to a lawyer. Miranda Rights apply once you have been placed in custody. If you were not advised of your Miranda Rights on the night of your arrest, the State will not be allowed to use any evidence that was obtained in violation of those rights. This means that any evidence obtained after you were arrested may not be used against you, with one exception: If, at the time of your arrest, you were properly advised of your implied consent rights and agreed to submit to a State Administered Chemical Test, then the State may use the results of that test as evidence against you, assuming that evidence meets all the other legal requirements for admission.

Therefore, if it is determined that certain evidence was obtained after you were arrested, and that you were not properly advised of your constitutional rights, then you may have grounds to argue a motion that such evidence should not be admissible in court. Your Constitutional rights include, among others, the right not to answer a police officer’s questions that might incriminate you, such as “How much have you had to drink tonight?” You also have the constitutional right not to incriminate yourself by attempting to perform Field Sobriety Tests requested by the officer that might incriminate you. The exercising of your constitutional right to refuse to answer such questions or perform such tests can not be used against you, with the exception of refusing to submit to a State Administered Chemical test.

Depending on when in the course of the arresting officer’s investigation you were placed in custody, you may even be able to argue that the office lacked probable cause to arrest you, resulting in the dismissal of your case if granted. Assuming the Court does not dismiss your case, at least the judge may rule that the illegally obtained evidence shall not be used against you at trial. If such an Order were entered, the chances of winning your case at trial would be improved tremendously. The State may even elect to reduce the charges against you in an exchange for a negotiated plea.

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What do I need to know about a ten (10) day hearing letter?

When you were arrested and charged with DUI the police officer may have asked you to sign a piece of paper, which was prepared by the Georgia Department of Public Safety. This paper, known as a “DPS 1205 Form,” serves notice to you that your driver’s license will be suspended for a period of time to be determined by the Department of Public Safety. It also serves as a temporary-driving permit for a period of 30 days, if the arresting officer signed it.

Typically, this “DPS 1205 Form” is given to individuals arrested for DUI who fall into one of the following categories:

1. Driver allegedly refused to submit to a state administered chemical test (blood, breath or urine);

2. Driver allegedly tested .10 grams or more on a state administered chemical test;

3. Driver under the age of 21 and allegedly tested .02 grams or more on a state administered chemical test; or

4. Driver operated a commercial vehicle and allegedly tested .04 grams or more on a state administered chemical test

Unless a request for a hearing is submitted within ten (10) business days from the date of your arrest, the Department’s proposed suspension of your driver’s license will become effective at midnight on the 30th day following the date of your arrest.

What is the hearing about?

Assuming you timely and properly request a hearing, the Department of Public Safety will grant you a hearing in which an Administrative Law Judge (ALJ) will consider whether the police officer had reasonable grounds to believe you were driving while under the influence of alcohol. The ALJ will also determine if were lawfully placed under arrest. Other issues to be decided at your administrative license suspension hearing will include whether you were involved in an accident resulting in serious injury or fatality; whether at the time of the request for the test or tests the officer informed you of your implied consent rights and the consequence of submitting or refusing to submit to such test; whether you refused the test; or whether a test or tests were administered and the results indicated an alcohol concentration of 0.10 grams or more or, if you are under the age of 21, an alcohol concentration of 0.02 grams or more or, if you were operating a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and 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 is required.

Remember that this hearing is separate and apart from your criminal court proceeding. It concerns the Department of Public Safety’s effort to suspend your driver’s license for merely being in one of the four categories previously mentioned. However, the timing and consequences of this proceeding certainly may influence the decisions you make in deciding how to handle your pending criminal charges.

If the Administrative Law judge determines that proper procedures were not followed, that your test was not properly administered, or that the arrest itself was illegal, then your driver’s license will not be suspended.

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What if this is not my first time charged with DUI?

If you have previously pleaded guilty, Nolo, or were otherwise convicted of DUI, you would encounter greater difficulties regarding the suspension your driver’s license if you plead guilty. The suspension of your driver’s license would technically be for a period of three years. However, you would be eligible to have your license reinstated after 120 days. If your last arrest for DUI was within five (5) years from the date of your current arrest, then you would not be able to obtain a temporary permit that would allow you to drive to and from work.

Additionally, recent laws enacted by the State legislature would also require an ignition interlock device to be placed on your vehicle for a period of at least six (6) months if you plead guilty to DUI or are convicted after a trial. Additional punishment would also be imposed.

If this is potentially your third or subsequent offense within a five-year period of time, you face the possibility of having your driver’s license revoked for a period of five (5) years. The earliest temporary-driving permit available would be two years away from the date of your conviction. Obviously, additional punishment would also be imposed.

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What if I was under 21 years old when I was arrested and charged with DUI, or I have a commercial driver’s license?

If you plead guilty or are convicted of Driving Under the Influence while under the age 21 years old, your driver’s license will be revoked. Depending on how high your blood alcohol level was at the time of your arrest the revocation would be for a period of six (6) months or one (1) year. No temporary-driving permit would be available. Additional punishment would also be imposed.

Additionally, if you are under 21 years of age or have a commercial driver’s license, you have greater limitations regarding the level of permissible blood alcohol. If you are under 21 years of age, the Department of Public Safety will attempt to suspend your driver’s license if you test .02 grams or more. If you are a commercial driver’s license holder you may loose your driver’s license if you test .04 grams or more.

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What would be my punishment if I decide to plead guilty or I am convicted or DUI?

The punishment for pleading guilty to a DUI or being convicted of DUI after a trial depends upon a number of variables specific to your case, such as the prosecutor and/or judge involved, the county or municipality where you were arrested, your blood alcohol level, your criminal history, reason for being stopped, etc.

The following summary of Georgia law, Code Section 40-6-391 regarding the range of punishment for DUI is provided merely in an effort to give you a general idea of the type of sentence that might be imposed. As you will see, a wide range of discretion exists for the judge to determine the ultimate punishment to be imposed. Please do not consider the following guidelines applicable to your particular case until you have consulted with an experienced attorney.

1st time offenders

1. you may be fined anywhere from $300.00 to $1,000.00, plus court cost and additional surcharges; and/or

2. you may be jailed for a minimum period of 24 hours and up to a maximum of 12 months; and

3. You will be required to perform at least 40 hours of community service, unless you are under 21 years old and your alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service will be not less than 20 hours; and

4. Your driver’s license will be suspended; however, you will be eligible to obtain a temporary driving permit that will allow you to drive to and from work

2nd time offender

If you are convicted or plead guilty to the charge of DUI for a second time within a five-year period of time:

1. You may be fined $600.00 to $1,000.00, plus court cost and additional surcharges; and/or

2. You may be jailed for a minimum period of 48 hours and up to a maximum period 12 months; and

3. You will be required to perform at least 80 hours of community service, unless you are under 21 years old and your alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not less than 40 hours; and

4. You will be required to undergo a clinical evaluation and, if indicated by such evaluation, must complete a substance abuse treatment program; and

5. Your driver’s license will be suspended and you will not be eligible for a temporary driver’s permit;

6. When you are eligible to drive an Ignition interlock device will be placed on your vehicle; and

7. Your picture will published in the local paper

3rd time offender

If you are convicted or plead guilty to the charge of DUI for a third or subsequent time within a five-year period of time:

1. You may be fined $1000.00 to $5,000.00, plus court cost and additional surcharges; and/or

2. You may be jailed for a minimum period of 10 days and up to a maximum period 12 months; and

3. You will be required to perform at least 20 days of community service, unless you are under 21 years old and your alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not less than 40 hours; and

4. Your will be required to undergo a clinical evaluation and, if indicated by such evaluation, must complete a substance abuse treatment program; and

5. Your driver’s license will be revoked for a period of five (5) years;

6. When you are eligible to drive an Ignition interlock device will be placed on your vehicle; and

7. Your picture will be published in the local paper
   

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