Second Offense DUI: Georgia Driver's License Law Changes for 2013
By: William C. Head [i]
Beginning in 1997, several new legislative enactments relating to Georgia driver’s licenses have been enacted by the Georgia General Assembly. Major revisions occurred in 1997 (ending the favorable nolo contendere plea to retain a first offender’s license), 2001 (creating a major overhaul of minimum punishment for repeat offense DUI offenders and by lowering the adult BAC per se DUI alcohol level to 0.08 grams percent), and in 2008, when a felony DUI was added. Significant legislative changes occurred in 2012 that will have a significant impact on misdemeanor DUI practice in Georgia, particularly for drivers with prior DUI history.
Senate Bill 236 (signed into law on April 16, 2012 but having an effective date on January 1, 2013) made substantial changes to the driving consequences for teen drivers convicted of driving under the influence (DUI) in violation of O.C.G.A.§40-6-391. This same new law will make it possible to accelerate the availability of ignition interlock limited driving permits for any accused citizen who is convicted of a second DUI offense within five (5) years. In Georgia, this is measured by date-of-arrest to date-of-arrest.
Current law requires a minimum of twelve (12) months of total loss of driving privileges (a “hard suspension" in DDS terminology). The new law permits obtaining a limited driving permit after only 120 days of hard suspension, assuming that certain conditions are completed or are being completed by the suspended driver.
This new law also modifies the permissible types (purposes) of driving available for all limited driving permits issued by the Department of Driver Services (DDS) beginning January 1, 2013. So long as the restricted driver complies with these guidelines, he or she can operate a motor vehicle earlier than under prior Georgia law.
Furthermore, Senate Bill 236 adds O.C.G.A. §40-5-57.1 (the statute relating to under age 21 drivers) to the list of suspensions for which a clinical evaluation is required for reinstatement of a suspension triggered by a “second DUI conviction in years". Once again the “time between DUI convictions" [in determining whether an offense is a second (or subsequent) conviction] is measuring from date-of-arrest to date-of-arrest. Plus, this new law takes effect for offenses arising January 1, 2013 and after.
Availability of Limited Driving Permit as a Motivation for Treatment
Currently, O.C.G.A. §§40-5-64 and 42-8-110, et seq., provide that an adult driver convicted of a second DUI within five years has to wait for a MINIMUM of a full year before making application for an ignition interlock limited driving permit. Plus, current law only allows the permit this soon for drivers who were age 21 or over when their conviction took place. Under the new law, all drivers (21 and over and those under age 21) may be eligible to seek an interlock permit sooner if he or she takes meaningful rehabilitation and education steps toward resolving the person’s underlying substance use and abuse issues.
Section 5 of Senate Bill 236 amends O.C.G.A. §40-5-64 to state that an ignition interlock permit can be issued after the defendant has served the first 120 days of the hard suspension. Under the new law, the issuance of a written court order is required before any affected driver may receive that permit.
Issuance of ignition interlock permits falls within the discretion of the sentencing Court for the underlying DUI. Sections 5 through 9 of Senate Bill 236 remove the previous references to ignition interlock installation and take out provisions that required the use of the interlock device was a condition of probation. Instead, the new law requires convicted, repeat-offense DUI drivers to seek the Court’s permission for the interlock installation when the suspended driver is ready to apply for an ignition interlock limited driving permit.
In order to be eligible for such ignition interlock permit, the applicant must be enrolled in clinical treatment as defined in O.C.G.A. §40-5-1 or engaged in a drug court program (this includes “DUI Court" programs or “Drug Court" programs in Georgia’s various courts. The existing pre-requisite of completion of the 20-hour DUI Drug or Alcohol Use Risk Reduction program remains in place, and repeat convicted offenders who are not engaged in a drug court must complete a clinical evaluation from a provider approved by the DUI Intervention Program of the Georgia Department of Behavioral Health and Developmental Disabilities prior to enrolling in clinical treatment.
Repeat offenders will greatly benefit from knowledgeable and experienced DUI defense practitioners handling these complex cases. When a guilty plea or outcome is likely for a second DUI offense, the value of early “assessment" and enrollment in both risk reduction and the clinical evaluation program for many of their clients facing repeat offense DUI charges is critical.
The Legal Department of DDS, after consulting with the Georgia Attorney General’s Office, has obtained approval to permit the “earlier eligibility language" to apply to drivers who are already under a suspension imposed for a second DUI conviction that was concluded in courts across Georgia prior to January 1, 2013. This means that a person whose conviction is entered prior to the effective date of the new law, January 1, 2013, will receive credit for the mandatory days of “hard suspension" required for all second DUI offenders within a five (5) year period under the new legislation. Additionally, a driver whose conviction is entered 120 days prior to January 1, 2013, and who otherwise qualifies for issuance of the limited driving permit may be eligible to receive the limited permit on January 1 (or as soon as DDS offices are open after the holiday). This eligibility, however, will be facilitated greatly by the convicted person completing the necessary prerequisites to facilitate issuance of an interlock permit after January 1st, 2013.
Practical concerns were taken into consideration in the drafting of Senate Bill 236 and will result in significant increases to the permissible uses of all limited driving permits, effective January 1, 2013 and after.
[iv] The new language allows limited driving permits to include any or all of the following restrictions:
(1) Going to his or her place of employment;
(2) Receiving scheduled medical care or obtaining prescription drugs;
(3) Attending a college or school at which he or she is regularly enrolled as a student;
(4) Attending regularly scheduled sessions or meetings of support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner;
(5) Attending under court order any driver education or improvement school or alcohol or drug program or course approved by the court which entered the judgment of conviction resulting in suspension of his or her driver's license or by the commissioner;
(6) Attending court, reporting to a probation office or officer, or performing community service; or
(7) Transporting an immediate family member who does not hold a valid driver's license for work, medical care, or to procure prescription medications or to school.
To answer a likely, common question about whether a convicted repeat DUI offender (or one who plans to enter a plea to DUI between now and January 1, 2013) can perform all of the minimum mandatory screening requirements IN ADVANCE OF THE CASE DISPOSITION DATE, the answer (in Georgia) is “yes". For example, in South Carolina, the ADSAP program cannot be started or completed without a judge’s order prior to enrolling.
Language relating specifically to the permissible restrictions on ignition interlock limited driving permits for second and subsequent repeat DUI offenders was added as O.C.G.A. §40-5-64(c.1)(2) and include the following January 1. 2013 and after:
(A) Going to his or her place of employment;
(B) Attending a college or school at which he or she is regularly enrolled as a student;
(C) Attending regularly scheduled sessions or meetings of treatment support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner; and
(D) Going for monthly monitoring visits with the permit holder's ignition interlock device service provider."
Significantly, neither the old law nor the new law permit driving to and from religious services. Other states allow restricted driving privileges for such purposes.
[i] William C. Head is Senior Partner of Head, Thomas, Webb & Willis, LLC, and is a 1976 graduate of the University of Georgia School of Law. His office number is 404-250-1113.
[ii] Driver’s license suspensions for teens under age sixteen (16) at the time of a DUI conviction fall under O.C.G.A. §40-5-22.1 rather than O.C.G.A. §40-5-57.1.
[iii] As with all other suspensions and revocations imposed by the DDS, the calculation of the driver’s license consequence is based upon the number of prior offenses using the incident dates.
[iv] The revised statutory language effective January 1, 2013 impacts permits issued for suspensions imposed pursuant to O.C.G.A. §§40-5-22(a.1)(2), 40-5-57.1 (4-point speeding tickets only), 40-5-57(d), O.C.G.A. §40-5-63(a)(1), 40-5-67.2, and 40-5-75 in addition to those imposed under O.C.G.A. §§40-5-57.1 or 40-5-63 due to a DUI conviction.
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