Starting with the basics, the Georgia First Offender Act (FOA) is a way of withholding adjudication and potentially having charges dismissed, restricted and sealed. Occasionally, I am asked whether the FOA can be used on a traffic offense, either on its own or where it is a part of a case that involves more serious charges.
There are a number of felony offenses that are not eligible for FOA treatment. There is one traffic offense which is not eligible, and that is DUI. So, if the traffic offense being asked about is DUI, then the answer has to be no to FOA.
FOA can only be used once. Because of that, I am often reluctant to recommend using FOA on a misdemeanor or traffic case. If you are my client and insist on using FOA on a misdemeanor traffic case, then you are likely going to sign something saying that it is your decision and against my advice. It's usually not worth it to keep a misdemeanor off your record, especially a non-DUI traffic offense.
That is even more true when you consider the limits of what FOA can do for you on a traffic case. The FOA only changes what shows up on your criminal history; it does not change your driving history at all. This is because the Motor Vehicle Code uses a different definition of conviction than is used for general criminal cases. Under the definition set out at OCGA 40-5-1, the plea of guilty or payment of a fine are by themselves enough for the Department of Drivers Services to treat the case as a conviction. They have no requirement to take a FOA off of your driving history.
If the person is charged with more serious offenses that FOA is being applied to and is also charged with non-DUI traffic offenses, then those traffic charges will be included in the FOA disposition and will help remove that cycle from the criminal history.
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