“REFUSAL” PENALTIES

Georgia, like every other state, has an administrative penalty for any driver who (upon being requested by a law enforcement officer to submit to a state-administered chemical sobriety test) REFUSES to take the test. This refusal does not cause any monetary fines to be payable, nor can you be jailed simply for refusing to take the State’s test. However, Georgia will seek to SUSPEND your driver’s license (for those licensed to drive by the State of Georgia) or for non-Georgia licensees your privilege to operate a car anywhere within the State of Georgia FOR A PERIOD OF ONE YEAR. A person who contests this suspension by filing a request for a hearing within 10 business days after the alleged refusal may be successful in preventing this suspension for refusal. [When counting days, the day of arrest does not count. Also, do not count Saturdays, Sundays or State holidays]. Failure to “appeal” the suspension within 10 business days will almost certainly result in this ONE YEAR suspension. In rare cases, where “providential cause” for late filing can be shown, a late “appeal” will be accepted by DPS.

THE IMPORTANCE OF THE ADMINISTRATIVE HEARINGS

Administrative hearings can be critical to a client’s case. To begin, if the licensee does nothing, his/her license (or privilege to drive in Georgia) will be suspended. This often hampers our efforts to proceed on the DUI criminal case. A client without driving privileges often loses the motivation to challenge his or her case.

Secondly, the administrative hearing (if held) offers your attorney a chance to cross-examine the arresting officer under oath, so that important issues can be reviewed before the criminal (DUI) case ever starts. A transcript of this sworn testimony can be instrumental in helping to settle or win the DUI case. In many cases, it is our only chance to obtain binding information about the officer’s case.

Thirdly, the administrative case is handled before an administrative law judge who works for the Georgia Office of State Administrative Hearings. If you decide to testify (after consulting with your attorney), this will be good practice for you in the event you go to a jury trial or a bench trial in the companion criminal case. You will also get an opportunity to see the officer’s manner of testimony “in court”.

ALS SUSPENSION FOR DRIVING WITH AN
UNLAWFUL BLOOD ALCOHOL LEVEL

Effective July 1, 1997, for all drivers charged with a violation of subsection “a” of the DUI code who SUBMIT to the State’s test and yield a blood alcohol result higher than 0.099% (0.100 or higher), a suspension under Georgia’s Administrative License Suspension Law (ALS) will be applicable. [.02 is the applicable ALS level for those under 21 charged with a violation of subsection “k” and .04 is the applicable ALS level for commercial vehicle operators charged under subsection “i”]. This is sometimes called a “stop & snatch” law. Basically, the law says that if you are stopped for DUI and have an “unlawful blood alcohol level”, based upon a chemical sobriety test result, your license (Georgia licensees) or your privilege to drive in Georgia (licensees from other states) will be administratively SUSPENDED for the following time periods:

• FIRST OFFENDERS: Persons who have not had a previous DUI arrest within 5 years (where the arrest resulted in either a conviction, guilty plea or a nolo contendere plea) are considered to be FIRST OFFENDERS under the ALS law. The suspension period is for ONE (1) YEAR. However, FIRST OFFENDERS are eligible to seek the following favorable treatment. At the end of the initial 30-day “temporary” driving permit allowed by the form received at the time of arrest, the person can apply for and receive a 30 day “work” permit that allows him/her to drive to work, medical treatment, DUI Risk Reduction Program, College, etc., but no recreational driving. There is a $25.00 charge for this limited driving permit. Also, if the person attends and completes a Risk Reduction Course (driving school) and pays a reinstatement fee ($200 by mail; $210 if done in person), he/she can obtain EARLY REINSTATEMENT of his/her license (or privilege to drive) after the 30 day permit expires.
• SECOND OFFENDERS: For persons who have one previous DUI arrest within the past 5 years (where the arrest resulted in a conviction, guilty plea or nolo contendere plea), a THREE YEAR SUSPENSION is triggered. No “work” permit is allowed. The suspension begins on the 31st day following arrest (unless an appeal is sought). However, these “SECOND OFFENDERS” may attend a DUI Risk Reduction Program and pay a reinstatement fee (same as for FIRST OFFENDERS) and get their license (or privilege to drive) reinstated after 120 days.
• THIRD (OR SUBSEQUENT) OFFENDERS: Any person who has already had two or more prior convictions, guilty or nolo contendere pleas to DUI in the past 5 years will be suspended for FIVE YEARS. No “work” permit of any type is allowed. However, after two (2) years (and subject to stringent requirements set forth in Georgia’s Code section 40-5-58) a person can seek a probationary license that is basically a restricted right to drive, which is very similar to a “work” permit.

For any ALS or “REFUSAL” administrative license suspension, the only penalty is suspension of driving privileges. For all persons who receive a proposed suspension notice, an “appeal” (request for hearing) can and should be made. If successful in the “appeal”, none of the ADMINISTRATIVE suspension penalties will take place. However, the driver must still wait until the CRIMINAL (DUI) case is concluded to see if any license suspension penalties are assessed in that proceeding. Hence, winning BOTH the administrative case and the criminal case is CRITICAL.

If a person has suffered a suspension under the ALS law (for driving with an unlawful blood alcohol level) or for “REFUSAL”, the imposition of a suspension by a judge in the CRIMINAL (DUI) case will entitle the person to CREDIT for any administrative suspension already suffered. However, for drivers under age 21, a “revocation” does not get reduced by any time served on an administrative suspension.

Even more important to a person who is suspended under an ALS or “REFUSAL” administrative license suspension, if he/she ultimately WINS the criminal (DUI) case, all suspensions are LIFTED, and any reinstatement fees which have been paid must be refunded by the Department of Public Safety. Moreover, a “win” can be a dismissal, a “nolle prosequi” (decision by the prosecutor to not prosecute), a plea to an alternative offense (such as a minor traffic offense). Any “win” will result in the administrative suspension being LIFTED or “rescinded”. For arrests made before July 1, 1997, a nolo contendere plea also results in the administrative suspension being lifted and the license (or privilege to drive in Georgia) being reinstated. Please note, this option is lost for arrests made July 1, 1997 and after. For out-of-state licensees, the effect on driving privileges permitted by your license from your home state (after obtaining “clearance” of the suspension in Georgia) will vary, but most states will permit either full reinstatement or a “work permit” (limited driving privileges) of some type.

FILING AN “APPEAL” (REQUEST FOR HEARING)

A timely appeal or request for hearing must be made within 10 business days. It must include certain basic driver identification information (name, address, phone, license number, date of birth), but should also state the “grounds” or reasons for appealing. The grounds for REFUSAL appeals are not identical to the grounds for ALS appeals. To set forth all available grounds, an attorney’s assistance is needed. Dozens of potential issues may be raised in the appeal letter.

Upon the completion of the WRITTEN appeal, it should be either:

(1) Hand delivered to 959 E. Confederate Avenue, Atlanta, GA 30315 (ALWAYS OBTAIN A RECEIPT FOR DELIVERY)
or
(2) Sent by certified mail, return receipt requested, and be POSTMARKED within the 10 business day time period. [Don't just drop it in a mailbox, and keep no record of it being received at the Post Office.] The address for certified mail is

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modified: June 08, 2004