Georgia Law

 

§ 40-5-58.  Habitual violators; probationary licenses

(a) As used in this Code section, "habitual violator" means any person who has been arrested and convicted within the United States three or more times within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, of:

(1) Committing any offense covered under Code Section 40-5-54 or Code Sections 40-6-391 through 40-6-395 or violating a federal law or regulation or the law of any state or a valid municipal or county ordinance substantially conforming to any offense covered under Code Section 40-5-54 or Code Sections 40-6-391 through 40-6-395; or

(2) Singularly or in combination, any of the offenses described in paragraph (1) of this subsection.

(b) (For effective date, see note.) When the records of the department disclose that any person is a habitual violator as defined in subsection (a) of this Code section, the department shall forthwith notify such person that his or her driver's license has been revoked by operation of law and that it shall be unlawful for such habitual violator to operate a motor vehicle in this state unless otherwise provided in this Code section. Notice shall be given by certified mail or statutory overnight delivery, with return receipt requested; or, in lieu thereof, notice may be given by personal service upon such person.

(c) (1) Except as provided in paragraph (2) of this subsection or in subsection (e) of this Code section, it shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his or her driver's license has been revoked as provided in subsection (b) of this Code section, if such person has not thereafter obtained a valid driver's license. Any person declared to be a habitual violator and whose driver's license has been revoked under this Code section and who is thereafter convicted of operating a motor vehicle before the department has issued such person a driver's license or before the expiration of five years from such revocation, whichever occurs first, shall be punished by a fine of not less than $750.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both. Any person declared to be a habitual violator and whose driver's license has been revoked and who is convicted of operating a motor vehicle after the expiration of five years from such revocation but before the department has issued such person a driver's license shall be guilty of a misdemeanor.

(2) Any person declared to be a habitual violator as a result of three or more convictions of violations of Code Section 40-6-391 within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, and who is thereafter convicted of operating a motor vehicle during such period of revocation, prior to the issuance of a probationary license under subsection (e) of this Code section or before the expiration of five years, shall be guilty of the felony of habitual impaired driving and shall be punished by a fine of not less than $1,000.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both.

(d) Notwithstanding any contrary provisions of Code Section 17-7-95, for the purposes of this Code section, any plea of nolo contendere entered and accepted after January 1, 1976, shall be considered a conviction.

(e) (1) Notwithstanding any contrary provisions of this Code section or any other Code section of this chapter, any person who has been declared a habitual violator and who has had his driver's license revoked under subsection (b) of this Code section for a period of five years and two years have expired since the date on which such person's license was surrendered or an affidavit was accepted as provided in subsection (e) of Code Section 40-5-61 may be issued a probationary driver's license for a period of time not to exceed three years upon compliance with the following conditions:

(A) Such person has not been convicted, or pleaded nolo contendere to a charge, of violating any provision of this chapter, Chapter 6 of this title, or any local ordinance relating to the movement of vehicles for a period of two years immediately preceding the application for a probationary driver's license;

(B) (For effective date, see note.) Such person has not been convicted, or pleaded nolo contendere to a charge, of a violation of any provision of this chapter or Chapter 6 of this title which resulted in the death or injury of any individual;

(C) Such person has successfully completed, prior to the issuance of the probationary driver's license, a defensive driving course or a DUI Alcohol or Drug Use Risk Reduction Program as designated by the department;

(D) Such person has not been convicted, or pleaded nolo contendere to a charge, of violating any provision of Title 3, relating to alcoholic beverages, or of violating any provision of Chapter 13 of Title 16, relating to controlled substances;

(E) Such person shall submit a sworn affidavit that such person does not excessively use alcoholic beverages and does not illegally use controlled substances or marijuana. It shall be a misdemeanor to falsely swear on such affidavit and, upon conviction, the probationary license shall be revoked. No probationary license shall be issued during the remainder of the revocation period, and no driver's license shall be issued for the remainder of the original revocation period or for a period of two years from the date of conviction under this subparagraph;

(F) Such person submits proof of financial responsibility as provided in Chapter 9 of this title; and

(G) Refusal to issue a probationary driver's license would cause extreme hardship to the applicant. For the purposes of this subsection, the term "extreme hardship" means that the applicant cannot reasonably obtain other transportation, and, therefore, the applicant would be prohibited from:

(i) Going to his place of employment or performing the normal duties of his occupation;

(ii) Receiving scheduled medical care or obtaining prescription drugs;

(iii) Attending a college or school at which he is regularly enrolled as a student;

(iv) 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; or

(v) Attending under court order any driver education or improvement school or alcohol or drug treatment program or course approved by the court which entered the judgment of conviction resulting in revocation of his driver's license or by the commissioner.

(2) Application for a probationary driver's license shall be made upon such forms as the commissioner may prescribe. Such forms shall require such information as is necessary for the department to determine the need for such license. All applications shall be signed by the applicant before a person authorized to administer oaths.

(3) Upon compliance with the above conditions and the payment of a fee of $210.00 or $200.00 when processed by mail, such person may be issued a probationary driver's license by the department. Upon payment of a fee in an amount the same as that provided by Code Section 40-5-25 for issuance of a Class C driver's license, a person may be issued a replacement for a lost or destroyed probationary driver's license issued to him or her.

(4) A probationary driver's license shall be endorsed with such conditions as the commissioner deems necessary to ensure that such license will be used by the licensee only to avoid the conditions of extreme hardship. Such conditions may include the following restrictions:

(A) Specific places between which the licensee may be allowed to operate a motor vehicle;

(B) Routes to be followed by the licensee;

(C) Times of travel;

(D) The specific vehicles which the licensee may operate; and

(E) Such other restrictions as the department may require.

(5) A probationary driver's license issued pursuant to this Code section shall become invalid upon the expiration of the period of the suspension or revocation of the driver's license of such person.

(6) (A) (i) Any probationary licensee violating the provisions of paragraph (4) of this subsection or operating a vehicle in violation of any conditions specified in this subsection shall be guilty of a misdemeanor.

(ii) Except as provided in division (iii) of this subparagraph, any probationary licensee violating any state law or local ordinance involving an offense listed in Code Section 40-5-54 or Code Section 40-6-391 shall be guilty of a felony and shall be punished by a fine of not less than $1,000.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both

(iii) Any probationary licensee violating any state law or local ordinance involving a felony offense listed in Code Section 40-5-54 shall be guilty of a felony and shall be punished as is provided for conviction of such felony.

(B) Any probationary licensee who is convicted of violating, or who pleads nolo contendere to a charge of violating, any state law or local ordinance involving an offense listed in Code Section 40-5-54 or Code Section 40-6-391 or any probationary licensee who is convicted of violating, or who pleads nolo contendere to a charge of violating, the conditions endorsed on his license, shall have his license revoked by the department. Any court in which such conviction is had or in which said nolo contendere plea is accepted shall require the licensee to surrender the license to the court. The court shall forward the license to the department within ten days after the conviction or acceptance of the plea, with a copy of the conviction. Any person whose probationary license is revoked for committing an offense listed in Code Section 40-5-54 or Code Section 40-6-391 shall not be eligible to apply for a regular driver's license until the expiration of the original five-year revocation period during which the probationary license was originally issued or for a period of two years following the conviction, whichever is greater.

(C) If the commissioner has reason to believe or makes a preliminary finding that the requirements of the public safety or welfare outweigh the individual needs of a person for a probationary license, the commissioner, in his discretion, after affording the person notice and an opportunity to be heard, may refuse to issue the license under this subsection.

(D) Any person whose probationary driver's license has been revoked shall not be eligible to apply for a subsequent probationary license under this Code section for a period of five years.

(7) Any person whose probationary license has been revoked or who has been refused a probationary license by the department may make a request in writing for a hearing to be provided by the department. Such hearing shall be provided by the department within 30 days after the receipt of such request and shall follow the procedures required by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Appeal from such hearing shall be in accordance with Chapter 13 of Title 50.

(f) If a person's license was revoked for a violation of Code Section 40-6-391 resulting from a motor vehicle collision in which any person lost his life, the person whose license was revoked shall not be entitled to a probationary license as set forth in this Code section.

HISTORY: Code 1933, § 68B-308, enacted by Ga. L. 1975, p. 1008, § 1; Ga. L. 1977, p. 307, § 3; Ga. L. 1978, p. 225, § 1; Ga. L. 1980, p. 691, §§ 2, 3; Ga. L. 1982, p. 3, § 40; Ga. L. 1982, p. 867, § 1; Ga. L. 1982, p. 1862, § 2; Ga. L. 1983, p. 3, § 29; Ga. L. 1983, p. 1000, § 5; Ga. L. 1984, p. 22, § 40; Ga. L. 1984, p. 797, §§ 1, 2; Ga. L. 1985, p. 758, §§ 5, 6; Ga. L. 1987, p. 1082, §§ 2, 3; Ga. L. 1988, p. 385, § 1; Ga. L. 1988, p. 897, § 3; Ga. L. 1988, p. 1893, § 1A; Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 1154, § 2; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 779, § 19; Ga. L. 1992, p. 2556, § 1; Ga. L. 1992, p. 2785, § 8; Ga. L. 1994, p. 745, § 1; Ga. L. 2000, p. 951, §§ 5-21, 5-22; Ga. L. 2000, p. 1204, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2006, p. 449, § 7/HB 1253; Ga. L. 2011, p. 355, § 5/HB 269; Ga. L. 2011, p. 752, § 40/HB 142.

 

§ 40-5-64. Limited driving permits for certain offenders 

(a)  To whom issued.

(1) Notwithstanding any contrary provision of Code Section 40-5-57 or 40-5-63 or any other Code section of this chapter, any person who has not been previously convicted or adjudicated delinquent for a violation of Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, may apply for a limited driving permit when and only when that person's driver's license has been suspended in accordance with paragraph (2) of subsection (a.1) of Code Section 40-5-22, subsection (d) of Code Section 40-5-57, paragraph (1) of subsection (a) of Code Section 40-5-63, paragraph (1) of subsection (a) of Code Section 40-5-67.2, or subsection (a) of Code Section 40-5-57.1, when the person is 18 or over and his or her license was suspended for exceeding the speed limit by 24 miles per hour or more but less than 34 miles per hour, and the sentencing judge, in his or her discretion, decides it is reasonable to issue a limited driving permit.

(2) Any person whose driver's license has been suspended and who is subject to a court order for installation and use of an ignition interlock device as a condition of probation pursuant to the provisions Article 7 of Chapter 8 of Title 42 may apply for a limited driving permit.

(3) (For effective date, see note.) To the extent a person is subject to more than one suspension for which a permit may be issued, the department shall not issue such permit unless the suspensions are for a conviction for driving under the influence in violation of Code Section 40-6-391 imposed pursuant to Code Section 40-5-63 and an administrative suspension imposed pursuant to paragraph (1) of subsection (a) of Code Section 40-5-67.2 arising from the same incident.

(b)  Application form. Applications for limited driving permits shall be made upon such forms as the commissioner may prescribe. Such forms shall require such information as is necessary for the department to determine the need for such permit. All applications shall be signed by the applicant before a person authorized to administer oaths.

(c)  Standards for approval. The department shall issue a limited driving permit if the application indicates that refusal to issue such permit would cause extreme hardship to the applicant. Except as otherwise provided by subsection (c.1) of this Code section, for the purposes of this Code section, "extreme hardship" means that the applicant cannot reasonably obtain other transportation, and therefore the applicant would be prohibited from:

(1) Going to his or her place of employment or performing the normal duties of his or her occupation;

(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; or

(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.

(c.1)  Exception to standards for approval. The provisions of paragraphs (2), (3), (4), and (5) of subsection (c) of this Code section shall not apply and shall not be considered for purposes of granting a limited driving permit or imposing conditions thereon under this Code section in the case of a driver's license suspension under paragraph (2) of subsection (a.1) of Code Section 40-5-22.

(d)  Conditions attached. A limited driving permit shall be endorsed with such conditions as the commissioner deems necessary to ensure that such permit will be used by the permittee only to avoid the conditions of extreme hardship. Such conditions may include the following restrictions:

(1) Specific places between which the permittee may be allowed to operate a motor vehicle;

(2) Routes to be followed by the permittee;

(3) Times of travel;

(4) The specific vehicles which the permittee may operate;

(4.1) The installation and use of an ignition interlock device in accordance with Article 7 of Chapter 8 of Title 42, which shall be required for any permittee who is applying for an ignition interlock limited driving permit; and

(5) Such other restrictions as the department may require.

(e)  Fees, duration, renewal, and replacement of permit. A permit issued pursuant to this Code section shall be $25.00 and shall become invalid upon the driver's eighteenth birthday in the case of a suspension under paragraph (2) of subsection (a.1) of Code Section 40-5-22, upon the expiration of one year following issuance thereof in the case of a suspension for an offense listed in Code Section 40-5-54 or a suspension under Code Section 40-5-57, or a suspension in accordance with paragraph (1) of subsection (a) of Code Section 40-5-63 for a violation of Code Section 40-6-391, upon the expiration of 30 days in the case of an administrative license suspension in accordance with paragraph (1) of subsection (a) of Code Section 40-5-67.2, or upon the expiration of six months following proof of installation of an ignition interlock device in the case of a limited driving permit issued to a person subject to a court order for installation and use of such a device pursuant to Article 7 of Chapter 8 of Title 42; except that such limited driving permit shall expire upon any earlier reinstatement of the driver's license. A person may apply to the department for a limited driving permit immediately following such conviction if he or she has surrendered his or her driver's license to the court in which the conviction was adjudged or to the department if the department has processed the citation or conviction. Upon the applicant's execution of an affidavit attesting to such facts and to the fact that the court had not imposed a suspension or revocation of his or her driver's license or driving privileges inconsistent with the driving privileges to be conferred by the limited driving permit applied for, the department may issue such person a limited driving permit. Permits issued pursuant to this Code section are renewable upon payment of a renewal fee of $5.00. Permits may be renewed until the person has his or her license reinstated for the violation that was the basis of the issuance of the permit. Upon payment of a fee in an amount the same as that provided by Code Section 40-5-25 for issuance of a Class C driver's license, a person may be issued a replacement for a lost or destroyed limited driving permit issued to him or her.

(f)  Liability of issuing officer. No official or employee of the department shall be criminally or civilly liable or subject to being held in contempt of court for issuing a limited driving permit in reliance on the truth of the affidavits required by this Code section.

(g)  Revocation of permit.

(1) (A) Any permittee who is convicted of violating any state law or local ordinance relating to the movement of vehicles or any permittee who is convicted of violating the conditions endorsed on his or her permit shall have his or her permit revoked by the department. Any court in which such conviction is had shall require the permittee to surrender the permit to the court, and the court shall forward it to the department within ten days after the conviction, with a copy of the conviction.

(B) Upon receipt of notice from the Department of Behavioral Health and Developmental Disabilities that a permittee who is required to complete a substance abuse treatment program pursuant to Code Section 40-5-63.1 enrolled in but failed to attend or complete such program as scheduled, the department shall revoke such person's limited driving permit and, by regular mail to his or her last known address, notify such person of such revocation. Such notice of revocation shall inform the person of the grounds for and effective date of the revocation and of the right to review. The notice of revocation shall be deemed received three days after mailing.

(C) Upon receipt of notice from a provider center for ignition interlock devices that an ignition interlock device which a permittee is required to use has been tampered with or the permittee has failed to report for monitoring of such device as required by law, the department shall revoke such permittee's limited driving permit and, by regular mail to his or her last known address, notify such person of such revocation. Such notice of revocation shall inform the person of the grounds for and effective date of the revocation and of the right to review. The notice of revocation shall be deemed received three days after mailing.

(2) Any person whose limited driving permit has been revoked shall not be eligible to apply for a driver's license until six months from the date such permit was surrendered to the department. In any case of revocation of a limited driving permit pursuant to subparagraph (A) of paragraph (1) of this subsection, the department may impose an additional period of suspension for the conviction upon which revocation of the permit was based.

(h)  Hearings. Any person whose permit has been revoked or who has been refused a permit by the department may make a request in writing for a hearing to be provided by the department. Such hearing shall be provided by the department within 30 days after the receipt of such request and shall follow the procedures required by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Appeal from such hearing shall be in accordance with said chapter.

(i)  Rules and regulations. The commissioner may promulgate such rules and regulations as are necessary to implement this Code section.

(j)  Penalty. Any permittee who operates a motor vehicle in violation of any condition specified on the permit shall be guilty of a misdemeanor.

HISTORY: Code 1933, § 68B-311, enacted by Ga. L. 1975, p. 1008, § 1; Ga. L. 1977, p. 648, § 1; Ga. L. 1978, p. 225, § 3; Ga. L. 1983, p. 1000, § 7; Ga. L. 1985, p. 149, § 40; Ga. L. 1985, p. 758, § 9; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 779, § 21; Ga. L. 1992, p. 2564, § 3; Ga. L. 1992, p. 2785, § 11; Ga. L. 1994, p. 1600, § 1; Ga. L. 1997, p. 760, § 18; Ga. L. 1999, p. 391, § 5; Ga. L. 2000, p. 951, § 5-27; Ga. L. 2000, p. 1457, § 4; Ga. L. 2002, p. 1324, § 1-20; Ga. L. 2003, p. 796, § 1; Ga. L. 2004, p. 471, § 6; Ga. L. 2006, p. 449, § 10/HB 1253; Ga. L. 2008, p. 171, § 7/HB 1111; Ga. L. 2009, p. 453, § 3-4/HB 228; Ga. L. 2010, p. 199, § 3/HB 258; Ga. L. 2010, p. 932, § 14/HB 396; Ga. L. 2011, p. 355, § 8/HB 269.

 

§ 40-5-67.  Seizure and disposition of driver's license of persons charged with driving under the influence; issuance of temporary driving permit; disposition of cases 

(a) Whenever any resident or nonresident person is charged with violating Code Section 40-6-391, the law enforcement officer shall take the driver's license of the person so charged. The driver's license shall be attached to the court's copy of the uniform traffic citation and complaint form and shall be forwarded to the court having jurisdiction of the offense. A copy of the uniform traffic citation and complaint form shall be forwarded, within ten days of issue, to the department. Taking the driver's license as required in this Code section shall not prohibit any law enforcement officer or agency from requiring any cash bond authorized by Article 1 of Chapter 6 of Title 17.

(b) At the time the law enforcement officer takes the driver's license, the officer shall issue a temporary driving permit to the person as follows:

(1) If the driver refuses to submit to a test or tests to determine the presence of alcohol or drugs as required in Code Section 40-5-55, the officer shall issue a 30 day temporary driving permit;

(2) If the driver's license is required to be suspended under Code Section 40-5-67.1, the officer shall issue a 30 day temporary driving permit; or

(3) If the test or tests administered pursuant to Code Section 40-5-55 indicate an alcohol concentration in violation of Code Section 40-6-391 but less than the level for an administrative suspension of the license under subsection (c) of Code Section 40-5-67.1, the officer shall issue a 180 day temporary driving permit.

This temporary driving permit shall be valid for the stated period or until the person's driving privilege is suspended or revoked under any provision of this title. The department, at its sole discretion, may delay the expiration date of the temporary driving permit, but in no event shall this delay extend beyond the date when such person's driving privilege is suspended or revoked under any provision of this title. The department shall by rules and regulations establish the conditions under which the expiration of the temporary permit may be delayed.

(c) (1) If the person is convicted of violating or enters a plea of nolo contendere to a charge of violating Code Section 40-6-391, the court shall, within ten days, forward the person's driver's license and the record of the disposition of the case to the department. At this time, the court shall also require the person to surrender the temporary driving permit issued pursuant to subsection (b) of this Code section.

(2) If the person is not convicted of violating and does not enter a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the court is in possession of the driver's license, the court shall return the driver's license to the person unless the license is in suspension for any other offense, in which case the court shall forward the license to the department for disposition.

HISTORY:Code 1981, § 40-5-69, enacted by Ga. L. 1983, p. 1000, § 1; Code 1981, § 40-5-67, as redesignated by Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2564, § 5; Ga. L. 1994, p. 1600, § 2; Ga. L. 1997, p. 760, § 19; Ga. L. 2000, p. 951, § 5-28.

                   

 

§ 40-5-67.1. Chemical tests; implied consent notices; rights of motorists; test results; refusal to submit; suspension or denial; hearing and review; compensation of officers; inspection and certification of breath-testing instruments 

(a) The test or tests required under Code Section 40-5-55 shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391 by reference or the person has been involved in a traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.

(b) At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following:

(1) Implied consent notice for suspects under age 21:
         "Georgia law requires you to submit to state administered chemical 
         tests of your blood, breath, urine, or other bodily substances for 
         the purpose of determining if you are under the influence of alcohol 
         or drugs. If you refuse this testing, your Georgia driver's license 
         or privilege to drive on the highways of this state will be suspended 
         for a minimum period of one year. Your refusal to submit to the 
         required testing may be offered into evidence against you at trial. 
         If you submit to testing and the results indicate an alcohol 
         concentration of 0.02 grams or more, your Georgia driver's license or 
         privilege to drive on the highways of this state may be suspended for 
         a minimum period of one year. After first submitting to the required 
         state tests, you are entitled to additional chemical tests of your 
         blood, breath, urine, or other bodily substances at your own expense 
         and from qualified personnel of your own choosing. Will you submit to 
         the state administered chemical tests of your ( designate which 
         tests) under the implied consent law?"
 

(2) Implied consent notice for suspects age 21 or over:
         "Georgia law requires you to submit to state administered chemical 
         tests of your blood, breath, urine, or other bodily substances for 
         the purpose of determining if you are under the influence of alcohol 
         or drugs. If you refuse this testing, your Georgia driver's license 
         or privilege to drive on the highways of this state will be suspended 
         for a minimum period of one year. Your refusal to submit to the 
         required testing may be offered into evidence against you at trial. 
         If you submit to testing and the results indicate an alcohol 
         concentration of 0.08 grams or more, your Georgia driver's license or 
         privilege to drive on the highways of this state may be suspended for 
         a minimum period of one year. After first submitting to the required 
         state tests, you are entitled to additional chemical tests of your 
         blood, breath, urine, or other bodily substances at your own expense 
         and from qualified personnel of your own choosing. Will you submit to 
         the state administered chemical tests of your (  designate which 
         tests ) under the implied consent law?"
 

(3) Implied consent notice for commercial motor vehicle driver suspects:
         "Georgia law requires you to submit to state administered chemical 
         tests of your blood, breath, urine, or other bodily substances for 
         the purpose of determining if you are under the influence of alcohol 
         or drugs. If you refuse this testing, you will be disqualified from 
         operating a commercial motor vehicle for a minimum period of one 
         year. Your refusal to submit to the required testing may be offered 
         into evidence against you at trial. If you submit to testing and the 
         results indicate the presence of any alcohol, you will be issued an 
         out-of-service order and will be prohibited from operating a motor 
         vehicle for 24 hours. If the results indicate an alcohol 
         concentration of 0.04 grams or more, you will be disqualified from 
         operating a commercial motor vehicle for a minimum period of one 
         year. After first submitting to the required state tests, you are 
         entitled to additional chemical tests of your blood, breath, urine, 
         or other bodily substances at your own expense and from qualified 
         personnel of your own choosing. Will you submit to the state 
         administered chemical tests of your ( designate which tests ) under 
         the implied consent law?"

If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.

(c) (For effective date, see note.) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities submits to a chemical test upon the request of a law enforcement officer and the test results indicate that a suspension or disqualification is required under this Code section, the results shall be reported to the department. Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident involving serious injuries or fatalities and that the person submitted to a chemical test at the request of the law enforcement officer and the test results indicate either an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more, the department shall suspend the person's driver's license, permit, or nonresident operating privilege pursuant to Code Section 40-5-67.2, subject to review as provided for in this chapter. Upon the receipt of a report of the law enforcement officer that the arrested person had been operating or was in actual physical control of a moving commercial motor vehicle and the test results indicate an alcohol concentration of 0.04 grams or more, the department shall disqualify the person from operating a motor vehicle for a minimum period of one year.

(d) (For effective date, see note.) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department. Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident which resulted in serious injuries or fatalities and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person's driver's license, permit, or nonresident operating privilege for a period of one year or if the person was operating or in actual physical control of a commercial motor vehicle, the department shall disqualify the person from operating a commercial motor vehicle and shall suspend the person's driver's license, permit, or nonresident operating privilege, subject to review as provided for in this chapter.

(d.1) Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.

(e) If the person is a resident without a driver's license, commercial driver's license, or permit to operate a motor vehicle in this state, the department shall deny issuance of a license or permit to such person for the same period provided in subsection (c) or (d) of this Code section, whichever is applicable, for suspension of a license or permit or disqualification to operate a commercial motor vehicle subject to review as provided for in this chapter.

(f) (For effective date, see note.) (1) The law enforcement officer, acting on behalf of the department, shall personally serve the notice of intention to suspend or disqualify the license of the arrested person or other person refusing such test on such person at the time of the person's refusal to submit to a test or at the time at which such a test indicates that suspension or disqualification is required under this Code section. The law enforcement officer shall take possession of any driver's license or permit held by any person whose license is subject to suspension pursuant to subsection (c) or (d) of this Code section, if any, and shall issue a 30 day temporary permit. The officer shall forward the person's driver's license to the department along with the notice of intent to suspend or disqualify and the report required by subsection (c) or (d) of this Code section within ten calendar days after the date of the arrest of such person. This paragraph shall not apply to any person issued a 180 day temporary permit pursuant to subsection (b) of Code Section 40-5-67. The failure of the officer to transmit the report required by this Code section within ten calendar days shall not prevent the department from accepting such report and utilizing it in the suspension of a driver's license as provided in this Code section.

(2) If notice has not been given by the arresting officer, the department, upon receipt of the report of such officer, shall suspend the person's driver's license, permit, or nonresident operating privilege or disqualify such person from operating a motor vehicle and, by regular mail, at the last known address, notify such person of such suspension or disqualification. The notice shall inform the person of the grounds of suspension or disqualification, the effective date of the suspension or disqualification, and the right to review. The notice shall be deemed received three days after mailing.

(g) (1) A person whose driver's license is suspended or who is disqualified from operating a commercial motor vehicle pursuant to this Code section shall remit to the department a $150.00 filing fee together with a request, in writing, for a hearing within ten business days from the date of personal notice or receipt of notice sent by certified mail or statutory overnight delivery, return receipt requested, or the right to said hearing shall be deemed waived. Within 30 days after receiving a written request for a hearing, the department shall hold a hearing as is provided in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The hearing shall be recorded.

(2) The scope of the hearing shall be limited to the following issues:

(A) (i) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or

(ii) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and

(B) Whether at the time of the request for the test or tests the officer informed the person of the person's implied consent rights and the consequence of submitting or refusing to submit to such test; and

(C) (i) Whether the person refused the test; or

(ii) Whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and

(D) 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 shall be required. A copy of the operator's permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.

(3) The hearing officer shall, within five calendar days after such hearing, forward a decision to the department to rescind or sustain the driver's license suspension or disqualification. If no hearing is requested within the ten business days specified above, and the failure to request such hearing is due in whole or in part to the reasonably avoidable fault of the person, the right to a hearing shall have been waived. The request for a hearing shall not stay the suspension of the driver's license; provided, however, that if the hearing is timely requested and is not held before the expiration of the temporary permit and the delay is not due in whole or in part to the reasonably avoidable fault of the person, the suspension shall be stayed until such time as the hearing is held and the hearing officer's decision is made.

(4) In the event the person is acquitted of a violation of Code Section 40-6-391 or such charge is initially disposed of other than by a conviction or plea of nolo contendere, then the suspension shall be terminated and deleted from the driver's license record. An accepted plea of nolo contendere shall be entered on the driver's license record and shall be considered and counted as a conviction for purposes of any future violations of Code Section 40-6-391. In the event of an acquittal or other disposition other than by a conviction or plea of nolo contendere, the driver's license restoration fee shall be promptly returned by the department to the licensee.

(h) If the suspension is sustained after such a hearing, the person whose license has been suspended under this Code section shall have a right to file for a judicial review of the department's final decision, as provided for in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; while such appeal is pending, the order of the department shall not be stayed.

(i) Subject to the limitations of this subsection, any law enforcement officer who attends a hearing provided for by subsection (g) of this Code section for the purpose of giving testimony relative to the subject of such hearing shall be compensated in the amount of $20.00 for each day's attendance at such hearing. In the event a law enforcement officer gives testimony at two or more different hearings on the same day, such officer shall receive only $20.00 for attendance at all hearings. The compensation provided for in this subsection shall not be paid to any law enforcement officer who is on regular duty or who is on a lunch or other break from regular duty at the time the officer attends any such hearing. The compensation provided for by this subsection shall be paid to the law enforcement officer by the department from department funds at such time and in such manner as the commissioner shall provide by rules or regulations. The commissioner shall also require verification of a law enforcement officer's qualifying to receive the payment authorized by this subsection by requiring the completion of an appropriate document in substantially the following form:
 
 
                   IMPLIED CONSENT HEARING ATTENDANCE RECORD                   

 
   OFFICER:                            S.S. No.                               
 
   ADDRESS:                                                                   
 
              Street    City       State         ZIP Code
 
   DATE:            TIME:                                                  A.M.
                                                                           P.M.
 
   CASE:                                                                      
      This is to certify that the police officer named above attended an 
   implied consent hearing as a witness or complainant on the date and time 
   shown above.
 
   HEARING OFFICER:          TITLE:                                           
      I certify that I appeared at the implied consent hearing described above 
   on the date and time shown above and that I was not on regular duty at the 
   time of attending the hearing and that I have not received and will not 
   receive compensation from my regular employer for attending the hearing.
 
                                Signature of officer:                         
 
                         APPROVED FOR PAYMENT:                                
 
                                                                    Comptroller

(j) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:
      "This breath-testing instrument (serial no.         ) was thoroughly 
   inspected, tested, and standardized by the undersigned on (date         ) 
   and all of its electronic and operating components prescribed by its 
   manufacturer are properly attached and are in good working order."
 
   When properly prepared and executed, as prescribed in this subsection, the 
certificate shall, notwithstanding any other provision of law, be 
self-authenticating, shall be admissible in any court of law, and shall 
satisfy the pertinent requirements of paragraph (1) of subsection (a) of Code 
Section 40-6-392 and subparagraph (g)(2)(F) of this Code section.

HISTORY: Code 1981, § 40-5-67.1, enacted by Ga. L. 1992, p. 2564, § 6; Ga. L. 1994, p. 472, § 1; Ga. L. 1994, p. 1600, § 3-6; Ga. L. 1995, p. 1160, §§ 1-3; Ga. L. 1995, Ex. Sess., p. 5, § 1; Ga. L. 1997, p. 143, § 40; Ga. L. 1997, p. 760, § 20; Ga. L. 1998, p. 210, § 2; Ga. L. 2000, p. 951, §§ 5-29--5-32; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 208, § 1-3; Ga. L. 2006, p. 329, § 2/HB 1275; Ga. L. 2007, p. 47, § 40/SB 103; Ga. L. 2010, p. 9, § 1-80/HB 1055; Ga. L. 2011, p. 355, § 9/HB 269.

 

§ 40-5-67.2.  Terms and conditions for suspension of license under subsection (c) of Code Section 40-5-67.1 

(a) Any driver's license required to be suspended under subsection (c) of Code Section 40-5-67.1 shall be suspended subject to the following terms and conditions:

(1) Upon the first suspension pursuant to subsection (c) of Code Section 40-5-67.1 within the previous five years, as measured from the dates of previous arrests for which a suspension was obtained to the date of the current arrest for which a suspension is obtained, the period of suspension shall be for one year. Not sooner than 30 days following the effective date of suspension, the person may apply to the department for reinstatement of his or her driver's license. Such license shall be reinstated if such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail unless such conviction was a recidivist conviction in which case the restoration fee shall be $510.00 or $500.00 when processed by mail. A driver's license suspended pursuant to Code Section 40-5-67.1 shall not become valid and shall remain suspended until such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays the prescribed restoration fee.

(2) Upon the second suspension pursuant to subsection (c) of Code Section 40-5-67.1 within five years, as measured from the dates of previous arrests for which suspensions were obtained to the date of the current arrest for which a suspension is obtained, the period of suspension shall be for three years. The person shall be eligible to apply to the department for license reinstatement not sooner than 18 months following the effective date of suspension. Such license shall be reinstated if such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail unless such conviction was a recidivist conviction in which case the restoration fee shall be $510.00 or $500.00 when processed by mail. A driver's license suspended pursuant to Code Section 40-5-67.1 shall not become valid and shall remain suspended until such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays the prescribed restoration fee.

(3) Upon the third or subsequent suspension pursuant to subsection (c) of Code Section 40-5-67.1 within five years, as measured from the dates of previous arrests for which suspensions were obtained to the date of the current arrest for which a suspension is obtained, the period of suspension shall be for five years. A driver's license suspended pursuant to Code Section 40-5-67.1 shall not become valid and shall remain suspended until such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays the prescribed restoration fee. The driver may apply for a probationary license pursuant to Code Section 40-5-58 after the expiration of two years from the effective date of suspension.

(b) An administrative license suspension pursuant to Code Section 40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating Code Section 40-6-391 which arises out of the same violation for which the administrative license suspension was imposed. An administrative license suspension pursuant to Code Section 40-5-67.1 shall run concurrently with any revocation of such driver's license pursuant to a subsequent determination that such person is a habitual violator.

(c) In all cases in which the department may return a license to a driver prior to the termination of the full period of suspension, the department may require such tests of driving skill and knowledge as it determines to be proper, and the department's discretion shall be guided by the driver's past driving record and performance, and the driver shall pay a restoration fee of $210.00 or $200.00 when processed by mail.

(d) Any other provision of law to the contrary notwithstanding, a driver with no previous conviction for a violation of Code Section 40-6-391 within the previous five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest, during the period of administrative suspension contemplated under this chapter, shall be entitled to a limited driving permit as provided in Code Section 40-5-64.

HISTORY: Code 1981, § 40-5-67.2, enacted by Ga. L. 1992, p. 2564, § 6; Ga. L. 1994, p. 1600, § 7; Ga. L. 2000, p. 951, § 5-33; Ga. L. 2000, p. 1457, § 5; Ga. L. 2001, p. 208, §§ 2-4, 3-4; Ga. L. 2005, p. 334, § 17-15.1/HB 501; Ga. L. 2007, p. 47, § 40/SB 103.

 

§ 40-5-75. Suspension of licenses by operation of law 

(a) The driver's license of any person convicted of any violation of the Georgia Controlled Substances Act, including, but not limited to, possession, distribution, manufacture, cultivation, sale, transfer of, trafficking in, the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, transfer or traffic in a controlled substance or marijuana, or the law of any other jurisdiction, shall by operation of law be suspended, and such suspension shall be subject to the following terms and conditions:

(1) Upon the first conviction of any such offense, with no arrest and conviction of and no plea of nolo contendere accepted to such offense within the previous five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be for not less than 180 days. At the end of 180 days, the person may apply to the department for reinstatement of his or her driver's license. Such license shall be reinstated only if the person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays to the Department of Driver Services a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail. For purposes of this paragraph, a plea of nolo contendere by a person to a charge of any drug related offense listed in this subsection shall, except as provided in subsection (c) of this Code section, constitute a conviction;

(2) Upon the second conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be for three years, provided that after one year from the date of the conviction, the person may apply to the department for reinstatement of his or her driver's license by submitting proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and paying to the Department of Driver Services a restoration fee of $310.00 or $300.00 when such reinstatement is processed by mail. For purposes of this paragraph, a plea of nolo contendere and all previous pleas of nolo contendere within such five-year period of time shall constitute a conviction; and

(3) Upon the third or subsequent conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, such person's license shall be suspended for a period of five years. At the end of two years, the person may apply to the department for a three-year driving permit upon compliance with the following conditions:

(A) Such person has not been convicted or pleaded nolo contendere to any drug related offense, including driving under the influence, for a period of two years immediately preceding the application for such permit;

(B) Such person submits proof of completion of a licensed drug treatment program. Such proof shall be submitted within two years of the license suspension and prior to the issuance of the permit. Such licensed drug treatment program shall be paid for by the offender. The offender shall pay a permit fee of $25.00 to the department;

(C) Such person submits proof of financial responsibility as provided in Chapter 9 of this title; and

(D) Refusal to issue such permit would cause extreme hardship to the applicant. For the purposes of this subparagraph, the term "extreme hardship" means that the applicant cannot reasonably obtain other transportation, and, therefore, the applicant would be prohibited from:

(i) Going to his or her place of employment or performing the normal duties of his or her occupation;

(ii) Receiving scheduled medical care or obtaining prescription drugs;

(iii) Attending a college or school at which he or she is regularly enrolled as a student; or

(iv) 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.

At the end of five years from the date on which the license was suspended, the person may apply to the department for reinstatement of his or her driver's license by submitting proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and paying to the Department of Driver Services a restoration fee of $410.00 or $400.00 when such reinstatement is processed by mail. For purposes of this paragraph, a plea of nolo contendere and all previous pleas of nolo contendere within such five-year period of time shall constitute a conviction.

(a.1) Any permittee who is convicted of violating any state law or local ordinance relating to the movement of vehicles or any permittee who is convicted of violating the conditions endorsed on his or her permit shall have his or her permit revoked by the department. Any court in which such conviction is had shall require the permittee to surrender the permit to the court, and the court shall forward it to the department within ten days after the conviction, with a copy of the conviction. Any person whose limited driving permit has been revoked shall not be eligible to apply for a driver's license until six months from the date such permit was surrendered to the department.

(b) Whenever a person is convicted of possession, distribution, manufacture, cultivation, sale, transfer of, the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or transfer a controlled substance or marijuana, or driving or being in actual physical control of any moving vehicle while under the influence of such substance in violation of subsection (b) of Code Section 16-13-2, subsection (a), (b), or (j) of Code Section 16-13-30, or Code Section 16-13-33; paragraph (2), (4), or (6) of subsection (a) of Code Section 40-6-391; or the law of any other jurisdiction, the court in which such conviction is had shall require the surrender to it of any driver's license then held by the person so convicted and the court shall thereupon forward such license and a copy of its order to the department within ten days after the conviction. The periods of suspension provided for in this Code section shall begin on the date of surrender of the driver's license or on the date that the department processes the conviction or citation, whichever shall first occur.

(c)(1) The decision to accept a plea of nolo contendere to a misdemeanor charge of unlawful possession of less than one ounce of marijuana shall be at the sole discretion of the judge. If a plea of nolo contendere is accepted as provided in this subsection, the judge shall, as a part of the disposition of the case, order the defendant to attend and complete a DUI Alcohol or Drug Use Risk Reduction Program. The order shall stipulate that the defendant shall complete such program within 120 days and that the defendant shall submit evidence of such completion to the department. The judge shall also notify the defendant that, if he or she fails to complete such program by the date specified in the court's order, his or her driver's license shall be suspended, by operation of law, as provided in this Code section. The record of the disposition of the case shall be forwarded to the department.

(2) If a plea of nolo contendere is accepted and the defendant's driver's license has not been suspended under any other provision of this title and if the defendant has not been convicted of or has not had a plea of nolo contendere accepted to a charge of violating this Code section within the previous five years, the court shall, subject to paragraph (1) of this subsection, return the driver's license to the person; otherwise, such driver's license shall be forwarded to the department.

(d) Application for reinstatement of a driver's license under paragraph (1) or (2) of subsection (a) of this Code section shall be made on such forms as the commissioner may prescribe and shall be accompanied by proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail. Application for a three-year driving permit under paragraph (3) of subsection (a) of this Code section shall be made on such form as the commissioner may prescribe and shall be accompanied by proof of completion of an approved residential drug treatment program and a fee of $25.00 for such permit.

(e) Notwithstanding any other provision of this Code section or any other provision of this chapter, any person whose license is suspended pursuant to this Code section shall not be eligible for early reinstatement of his license and shall not be eligible for a limited driving permit, but such person's license shall be reinstated only as provided in this Code section.

(f) Except as provided in subsection (a) of this Code section, it shall be unlawful for any person to operate any motor vehicle in this state after such person's license has been suspended pursuant to this Code section if such person has not thereafter obtained a valid license. Any person who is convicted of operating a motor vehicle before the department has reinstated such person's license or issued such person a three-year driving permit shall be punished by a fine of not less than $750.00 nor more than $5,000.00 or by imprisonment in the penitentiary for not more than 12 months, or both.

(g) Notwithstanding the provisions of Code Section 15-11-72 and except as provided in subsection (c) of this Code section, an adjudication of a minor child as a delinquent child or an unruly child for any offense listed in subsection (a) of this Code section shall be deemed a conviction for purposes of this Code section.

(h) Notwithstanding the provisions of subsection (a) of this Code section, licensed drivers who are 16 years of age who are adjudicated in a juvenile court pursuant to this Code section may, at their option, complete a DUI Alcohol or Drug Use Risk Reduction Program or an assessment and intervention program approved by the juvenile court.

(i) Notwithstanding any other provision of this chapter to the contrary, the suspension imposed pursuant to this Code section shall be in addition to and run consecutively to any other suspension imposed by the department at the time of the conviction that results in said suspension. If the person has never been issued a driver's license in the State of Georgia or holds a driver's license issued by another state, the person shall not be eligible for a driver's license for the applicable period of suspension following his or her submission of an application for issuance thereof.

HISTORY: Code 1981, § 40-5-75, enacted by Ga. L. 1990, p. 1149, § 1; Ga. L. 1990, p. 1097, § 1.5; Ga. L. 1991, p. 1767, § 1; Ga. L. 1992, p. 779, § 25; Ga. L. 1992, p. 2785, § 13; Ga. L. 1994, p. 97, § 40; Ga. L. 1994, p. 730, §§ 3-5; Ga. L. 1997, p. 143, § 40; Ga. L. 2000, p. 20, § 23; Ga. L. 2000, p. 951, § 5-39; Ga. L. 2004, p. 471, § 7; Ga. L. 2005, p. 334, § 17-16/HB 501; Ga. L. 2006, p. 449, § 11/HB 1253; Ga. L. 2007, p. 47, § 40/SB 103; Ga. L. 2007, p. 117, § 1/HB 419; Ga. L. 2009, p. 679, § 7/HB 160; Ga. L. 2010, p. 932, § 15/HB 396; Ga. L. 2011, p. 355, § 10/HB 269.

 

§ 40-5-80.  Purpose of article

 The purpose of this article, the "Georgia Driver Improvement Act," is to improve and promote greater safety upon the highways and streets of this state; to improve the attitude and driving habits of drivers who accumulate traffic accident and motor vehicle conviction records; and to provide uniform DUI Alcohol or Drug Use Risk Reduction Programs for the rehabilitation of persons identified as reckless or negligent drivers and frequent violators. In carrying out this purpose, the Department of Driver Services shall:

(1) Charge a fee for the consideration of applications for approval of driver improvement clinics and instructors. The amount of this fee shall be established by the commissioner and shall, as best as the commissioner shall determine, approximate the expense incurred by the department in consideration of an application. These licenses and each renewal thereof shall be valid for a period of four years unless suspended or revoked prior to the expiration of that time period; and

(2) Require, in addition to the criteria established by the commissioner for approval of driver improvement clinics and DUI Alcohol or Drug Use Risk Reduction Programs, as provided in subsections (a) and (e) of Code Section 40-5-83, that every driver improvement clinic and DUI Alcohol or Drug Use Risk Reduction Program shall, as a condition of approval, provide a continuous surety company bond for the protection of the contractual rights of students in such form as will meet with the approval of the department, and written by a company authorized to do business in this state. The principal sum of the bond shall be established by the commissioner; however, in no event shall this amount be less than $10,000.00 per location, and a single bond at such rate may be submitted for all locations under the same ownership. If at any time said bond is not valid and in force, the license of the clinic or program shall be deemed suspended by operation of law until a valid surety company bond is again in force.

HISTORY: Code 1933, § 68D-101, enacted by Ga. L. 1978, p. 2302, § 1; Ga. L. 1990, p. 1154, § 5; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2785, § 14; Ga. L. 1994, p. 1066, § 1; Ga. L. 1997, p. 143, § 40; Ga. L. 2000, p. 951, § 5-40; Ga. L. 2003, p. 796, § 2; Ga. L. 2005, p. 334, § 17-17/HB 501.

 

 

§ 40-5-81. Program optional; certification and approval of courses 

(a) Any driver improvement program at which attendance is required by court order shall conform to the requirements of this article. When a defensive driving course is required by a court having jurisdiction over misdemeanor traffic law offenses or by any prosecuting attorney thereof, such course shall be certified and approved by the department under the provisions of Code Sections 40-5-82 and 40-5-83. Certificates of completion from unlicensed defensive driving courses shall not be recognized for any purposes under this article.

(b) Whenever any person is authorized or required to attend a driver improvement clinic or DUI Alcohol or Drug Use Risk Reduction Program as a condition of any sentence imposed under this title or any ordinance enacted pursuant to this title or as a condition of the retention or restoration of the person's driving privilege, such person, in complying with such condition, shall be authorized to attend any driver improvement clinic or DUI Alcohol or Drug Use Risk Reduction Program certified under this article; and no judicial officer, probation officer, law enforcement officer, or other officer or employee of a court or person who owns, operates, or is employed by a private company which has contracted to provide private probation services for misdemeanor cases shall specify, directly or indirectly, a particular driver improvement clinic or DUI Alcohol or Drug Use Risk Reduction Program which the person may or shall attend. This Code section shall not prohibit any judicial officer, probation officer, law enforcement officer, or other officer or employee of a court or owner, operator, or employee of a private company which has contracted to provide probation services for misdemeanor offenders from furnishing any person, upon request, the names of certified driver improvement clinics or DUI Alcohol or Drug Use Risk Reduction Programs.

(c) It shall be unlawful for the owner, agent, servant, or employee of any driver improvement clinic or DUI Alcohol or Drug Use Risk Reduction Program licensed by the department to directly or indirectly solicit business by personal solicitation on public property, by phone, or by mail. A violation of this subsection shall be a misdemeanor. Advertising in any mass media, including, but not limited to, newspapers, radio, television, magazines, or telephone directories by a driver improvement clinic or DUI Alcohol or Drug Use Risk Reduction Program shall not be considered a violation of this subsection.

HISTORY: Code 1933, § 68D-102, enacted by Ga. L. 1978, p. 2302, § 1; Code 1981, § 40-5-85.2, enacted by Ga. L. 1985, p. 758, § 20; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2564, § 9; Ga. L. 1992, p. 2785, § 15; Ga. L. 1992, p. 2978, § 9.1; Ga. L. 1993, p. 454, § 1; Ga. L. 2000, p. 951, § 5-41; Ga. L. 2003, p. 796, § 3; Ga. L. 2004, p. 631, § 40; Ga. L. 2005, p. 334, § 17-18/HB 501; Ga. L. 2011, p. 355, § 11/HB 269.

 

 

§ 40-5-82.  Administration of program

(a) The Driver Improvement Program created by this article shall be administered by the commissioner. The commissioner is authorized to promulgate and adopt rules and regulations necessary to carry out this article.

(b) For the purpose of generating greater interest in highway safety, the commissioner may solicit the assistance of local governmental authorities, associations, societies, clubs, schools, colleges, and other organizations or persons knowledgeable in highway safety driving standards to participate in conjunction with the department in the development of local driver improvement programs and in conducting driver improvement classes.

(c) The department is designated as the agency responsible for the approval and certification of DUI Alcohol or Drug Use Risk Reduction Programs and staff. This responsibility includes selection of the assessment instrument, development of the intervention curricula, training of program staff, and monitoring of all DUI Alcohol or Drug Use Risk Reduction Programs under this article.

(d) All DUI Alcohol or Drug Use Risk Reduction Program records including, but not limited to, assessment results and other components attended shall be confidential and shall not be released without the written consent of the DUI offender, except that such records shall be made available to the Department of Behavioral Health and Developmental Disabilities and the Department of Driver Services. The provision of assessments to the Department of Behavioral Health and Developmental Disabilities shall be according to an interagency agreement between the Department of Driver Services and the Department of Behavioral Health and Developmental Disabilities, and the agreement may provide for assessment fees to be transmitted to the Department of Behavioral Health and Developmental Disabilities.

(e) The department shall conduct a records check for any applicant for certification as an operator, director, or instructor of a DUI Alcohol or Drug Use Risk Reduction Program. Each applicant shall submit at least one set of classifiable fingerprints to the department in accordance with the fingerprint system of identification established by the director of the Federal Bureau of Investigation. The department shall transmit the fingerprints to the Georgia Crime Information Center, which shall submit the fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of state records based upon the fingerprints. After receiving the report from the Georgia Crime Information Center and the Federal Bureau of Investigation, the department shall determine whether the applicant may be certified. No applicant shall be certified who has previously been convicted of a felony. The department shall promulgate rules and regulations regarding certification requirements, including restrictions regarding misdemeanor convictions. No applicant shall be certified unless he or she is a United States citizen, or if not a citizen, he or she presents federal documentation verified by the United States Department of Homeland Security to be valid documentary evidence of lawful presence in the United States under federal immigration law.

HISTORY: Code 1933, § 68D-103, enacted by Ga. L. 1978, p. 2302, § 1; Ga. L. 1985, p. 149, § 40; Ga. L. 1990, p. 1154, § 6; Ga. L. 1990, p. 2048, § 4; Ga. L. 1991, p. 1140, § 1; Ga. L. 1997, p. 143, § 40; Ga. L. 1999, p. 731, § 2; Ga. L. 2000, p. 951, § 5-42; Ga. L. 2005, p. 334, § 17-19/HB 501; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2010, p. 932, § 16/HB 396.

 

§ 40-5-83.  Establishment and approval of clinics and programs; out-of-state certificates of completion; instructor licenses; fees; operation of clinics by employees of probation division; submission of fingerprints by applicants 

(a) (1) The commissioner shall establish criteria for the approval of driver improvement clinics. To be approved, a clinic shall provide and operate a defensive driving course. Clinics shall be composed of uniform education and training programs consisting of six hours of instruction designed for the rehabilitation of problem drivers. The commissioner shall establish standards and requirements concerning the contents of courses, qualifications of instructors, attendance requirements for students, and examinations. Approved clinics shall charge a fee of $75.00 for a defensive driving course, except that such clinics may charge different fees of their own choosing if the person is not enrolling in such course pursuant to court order or department requirement. No clinic shall be approved unless such clinic agrees in writing to allow the examination and audit of the books, records, and financial statements of such clinic. Clinics may be operated by any individual, partnership, or corporation. Nothing in this paragraph shall be construed to affect in any way driving programs established for purposes of insurance premium reductions under the provisions of Code Section 33-9-42.

(1.1) (A) No driver improvement clinic shall be permitted to use, adopt, or conduct any business under any name that is like or deceptively similar to any name used by any other driver improvement clinic, Georgia company, or Georgia corporation registered with the Secretary of State. This subparagraph shall not prohibit the franchising or licensing of any part or all of the name of a driver improvement clinic by the owner or the rights thereof to another licensed driver improvement clinic.

(B) This paragraph shall not prohibit the franchising or licensing of any part or all of the name of a clinic by the owner of the rights therein to another licensed driver improvement clinic.

(2) The commissioner may issue a special license to the instructor of any commercial driver training school authorizing such instructor to teach a defensive driving course, advanced defensive driving course, or professional defensive driving course of a driver improvement clinic provided pursuant to this Code section if such instructor is qualified to teach a teen-age driver education course which consists of a minimum of 30 hours of classroom and six hours of behind-the-wheel training and such instructor certifies to the commissioner that he or she has provided at least 250 hours of behind-the-wheel training in a teen-age driver education course.

(b) (1) The commissioner shall be authorized to accept certificates of completion from all defensive driving, driving under the influence, and alcohol and drug programs, clinics, and courses approved by any other state, the District of Columbia, and territories and possessions of the United States, including military reservations, whereby driver improvement clinics, programs, and courses shall be approved for use by residents of this state, other states, the District of Columbia, and territories and possessions of the United States.

(2) Driver improvement clinics, programs, and courses outside of the State of Georgia shall not be required to comply with the provisions of subsection (a) of this Code section.

(3) Driving under the influence and alcohol and drug programs, clinics, and courses outside of the State of Georgia shall not be required to comply with the provisions of subsection (e) of this Code section; provided, however, that the department shall not accept certificates of completion from any such program, clinic, or course unless said program, clinic, or course has been certified by the department as substantially conforming, with respect to course content, with the standards and requirements promulgated by the department under subsection (e) of this Code section. Certificates of completion from an out-of-state program, clinic, or course not so certified by the department may be accepted only for the purpose of permitting persons who are not residents of the State of Georgia to reinstate nonresident operating privileges.

(c) (For effective date, see note.) The commissioner shall be authorized to issue a special license to the instructor of any driver improvement clinic who is qualified to teach the alcohol and drug course prescribed in subsection (b) of Code Section 20-2-142. A driver improvement clinic shall offer such alcohol and drug course only through a qualified instructor and shall not charge a fee for such course of more than $25.00. The commissioner shall be authorized to issue a special license to a licensed instructor of any driver training school to teach the alcohol and drug course prescribed in subsection (b) of Code Section 20-2-142 who is qualified to teach a teen-age driver education course, which course consists of a minimum of 30 hours of classroom and six hours of behind-the-wheel training. The alcohol and drug program may be included in the 30 hours of classroom training as part of a curriculum approved by the department. Any fee authorized by law for such a drug and alcohol course may be included in the tuition charge for a teen-age driver education course. Any text or workbook provided or required by the Department of Driver Services for such alcohol and drug course shall be provided by the department at the same fee as currently charged by the department to any public or private school, contractor, or appropriate representative currently teaching the program.

(d) Notwithstanding the provisions of any law or rule or regulation which prohibits any individual who is a probation officer or other official or employee of the probation division of the Department of Corrections or a spouse of such individual from owning, operating, instructing at, or being employed by a driver improvement clinic, any individual who is a probation officer or other official or employee of the probation division of the Department of Corrections or a spouse of such individual who owns, operates, instructs at, or is employed by a driver improvement clinic on June 1, 1985, and who in all respects is and remains qualified to own, operate, instruct at, or be employed by a driver improvement clinic is expressly authorized to continue on and after June 1, 1985, to engage in such activities. No person who owns, operates, or is employed by a private company which has contracted to provide probation services for misdemeanor cases shall be authorized to own, operate, be an instructor at, or be employed by a driver improvement clinic or a DUI Alcohol or Drug Use Risk Reduction Program.

(e) (For effective date, see note.) The department is designated as the agency responsible for establishing criteria for the approval of DUI Alcohol or Drug Use Risk Reduction Programs. An applicant shall meet the certification criteria promulgated by the department through its standards and shall provide the following services: (1) the assessment component and (2) the intervention component. The department is designated as the agency responsible for establishing rules and regulations concerning the contents and duration of the components of DUI Alcohol or Drug Use Risk Reduction Programs, qualifications of instructors, attendance requirements for students, examinations, and program evaluations. Qualified instructors shall be certified for periods of four years each, which may be renewed. Approved DUI Alcohol or Drug Use Risk Reduction Programs shall charge a fee of $82.00 for the assessment component and $190.00 for the intervention component. An additional fee for required student program materials shall be established by the department in such an amount as is reasonable and necessary to cover the cost of such materials. No DUI Alcohol or Drug Use Risk Reduction Program shall be approved unless such clinic agrees in writing to submit reports as required in the rules and regulations of the department and to allow the examination and audit of the books, records, and financial statements of such DUI Alcohol or Drug Use Risk Reduction Program by the department or its authorized agent. DUI Alcohol or Drug Use Risk Reduction Programs may be operated by any public, private, or governmental entity; provided, however, that, except as otherwise provided in this subsection, in any political subdivision in which a DUI Alcohol or Drug Use Risk Reduction Program is operated by a private entity, whether for profit or nonprofit, neither the local county board of health nor any other governmental entity shall fund any new programs in that area. Programs currently in existence which are operated by local county boards of health or any other governmental entities shall be authorized to continue operation. New programs may be started in areas where no private DUI Alcohol or Drug Use Risk Reduction Programs have been made available to said community. The Department of Corrections is authorized to operate DUI Alcohol or Drug Use Risk Reduction Programs in its facilities where offenders are not authorized to participate in such programs in the community, provided that such programs meet the certification criteria promulgated by the Department of Driver Services. All such programs operated by the Department of Corrections shall be exempt from all fee provisions established in this subsection specifically including the rebate of any fee for the costs of administration. No DUI Alcohol or Drug Use Risk Reduction Program shall be approved unless such clinic agrees in writing to pay to the state, for the costs of administration, a fee of $22.00 for each offender assessed or each offender attending for points reduction, provided that nothing in this Code section shall be construed so as to allow the department to retain any funds required by the Constitution to be paid into the state treasury; and provided, further, that the department shall comply with all provisions of Part 1 of Article 4 of Chapter 12 of Title 45, the "Budget Act," except Code Section 45-12-92, prior to expending any such miscellaneous funds.

(f) (1) Each applicant for certification to own or operate a driver improvement clinic shall submit at least one set of classifiable electronically recorded fingerprints to the department in accordance with the fingerprint system of identification established by the director of the Federal Bureau of Investigation. The department shall transmit the fingerprints to the Georgia Crime Information Center, which shall submit the fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and promptly conduct a search of state records based upon the fingerprints. After receiving the report from the Georgia Crime Information Center and the Federal Bureau of Investigation, the department shall determine whether the applicant may be certified.

(2) No applicant shall be certified unless he or she is a United States citizen, or if not a citizen, he or she presents federal documentation verified by the United States Department of Homeland Security to be valid documentary evidence of lawful presence in the United States under federal immigration law.

HISTORY: Code 1933, § 68D-104, enacted by Ga. L. 1978, p. 2302, § 1; Code 1981, § 40-5-83.1, enacted by Ga. L. 1983, p. 745, § 3; Ga. L. 1985, p. 409, § 1; Ga. L. 1985, p. 758, § 12; Code 1981, § 40-5-85.1, enacted by Ga. L. 1985, p. 758, § 20; Ga. L. 1986, p. 839, § 2; Ga. L. 1987, p. 431, § 1; Ga. L. 1990, p. 1154, § 7; Code 1981, § 40-5-83, as redesignated by Ga. L. 1990, p. 2048, § 4; Ga. L. 1991, p. 1140, § 2; Ga. L. 1992, p. 913, § 1; Ga. L. 1992, p. 2785, § 16; Ga. L. 1993, p. 91, § 40; Ga. L. 1993, p. 454, § 2; Ga. L. 1994, p. 1066, § 2; Ga. L. 1997, p. 143, § 40; Ga. L. 1999, p. 731, § 3; Ga. L. 2000, p. 951, § 5-43; Ga. L. 2003, p. 796, § 4; Ga. L. 2005, p. 334, § 17-20/HB 501; Ga. L. 2009, p. 65, § 6/SB 196; Ga. L. 2010, p. 932, § 17/HB 396; Ga. L. 2011, p. 355, § 12/HB 269.

 

§ 40-5-84. Reinstatement of licenses suspended for certain offenses or for points 

(a) Except as otherwise provided, the license of any person whose license is suspended for the first time as a result of the conviction of an offense listed in Code Section 40-5-54 shall, at the expiration of 120 days following the date the license is suspended, be reinstated by the department upon receipt by the department of a certificate of completion of an approved defensive driving course and the payment of a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail.

(b) The license of any person whose license is suspended for the second time as a result of the conviction of an offense listed in Code Section 40-5-54 shall, at the expiration of 120 days following the date the license is suspended, be reinstated by the department upon receipt by the department of a certificate of completion of an advanced defensive driving course and the payment of a restoration fee of $310.00 or $300.00 when such reinstatement is processed by mail.

(c) The license of any person whose license is suspended for the first time within a five-year period as a result of the assessment of points pursuant to Code Section 40-5-57 shall be reinstated by the department immediately upon receipt by the department of a certificate of completion of an approved defensive driving course and the payment of a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail.

(d) The license of any person whose license is suspended for the second time within a five-year period as a result of the assessment of points pursuant to Code Section 40-5-57 shall be reinstated by the department immediately upon receipt by the department of a certificate of completion of an approved defensive driving course and the payment of a restoration fee of $310.00 or $300.00 when such reinstatement is processed by mail.

(e) The license of any person whose license is suspended for the third or subsequent time within a five-year period as a result of the assessment of points pursuant to Code Section 40-5-57 shall be reinstated by the department upon receipt by the department of a certificate of completion of an advanced defensive driving course and the payment of a restoration fee of $410.00 or $400.00 when such reinstatement is processed by mail.

HISTORY:Code 1933, § 68D-105, enacted by Ga. L. 1978, p. 2302, § 1; Ga. L. 1983, p. 1000, § 8; Ga. L. 1984, p. 22, § 40; Ga. L. 1985, p. 149, § 40; Ga. L. 1985, p. 758, § 13; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2785, § 17; Ga. L. 2003, p. 796, § 5; Ga. L. 2009, p. 679, § 8/HB 160; Ga. L. 2011, p. 355, § 13/HB 269.

                  

 

§ 40-5-85.  Reinstatement of licenses suspended for driving under influence of alcohol or drugs; red stripe on licenses of repeat offenders 

Notwithstanding any other provision of this chapter, any person convicted within five years of his or her first conviction as measured in paragraph (2) of subsection (c) of Code Section 40-6-391 for a second time of the offense of driving under the influence of alcohol or drugs in violation of Code Section 40-6-391 shall, upon compliance with all other requirements for reinstatement of his or her license as provided for in this chapter, be issued a driver's license which may bear a red stripe thereon. After seven years with no additional convictions for driving under the influence of alcohol or drugs any such person shall be issued a regular driver's license without such red stripe provided that he or she is otherwise entitled to such license under the laws of this state.

HISTORY: Code 1981, § 40-5-85, enacted by Ga. L. 1996, p. 1624, § 8.

 

§ 40-6-391.  Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for second time; endangering a child 

(a) A person shall not drive or be in actual physical control of any moving vehicle while:

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

(5) The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or

(6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.

(b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.

(c) Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor, upon a third conviction thereof, be guilty of a high and aggravated misdemeanor, and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:

(1) First conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $300.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender's alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;

(C) Not fewer than 40 hours of community service, except that for a conviction for violation of subsection (k) of this Code section where the person's alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not fewer than 20 hours;

(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department's approval of the program to the person upon enrollment in the program;

(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; provided, however, that in the court's discretion such evaluation may be waived; and

(F) If the person is sentenced to a period of imprisonment for fewer than 12 months, a period of probation of 12 months less any days during which the person is actually incarcerated;

(2) For the second conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $600.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A period of imprisonment of not fewer than 90 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 72 hours of actual incarceration;

(C) Not fewer than 30 days of community service;

(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department's approval of the program to the person upon enrollment in the program;

(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

(F) A period of probation of 12 months less any days during which the person is actually incarcerated;

(3) For the third conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A mandatory period of imprisonment of not fewer than 120 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 15 days of actual incarceration;

(C) Not fewer than 30 days of community service;

(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department's approval of the program to the person upon enrollment in the program;

(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

(F) A period of probation of 12 months less any days during which the person is actually incarcerated;

(4) For the fourth or subsequent conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A period of imprisonment of not less than one year and not more than five years; provided, however, that the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose;

(C) Not fewer than 60 days of community service; provided, however, that if a defendant is sentenced to serve three years of actual imprisonment, the judge may suspend the community service;

(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department's approval of the program to the person upon enrollment in the program;

(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

(F) A period of probation of five years less any days during which the person is actually imprisoned; provided, however, that if the ten-year period of time as measured in this paragraph commenced prior to July 1, 2008, then such fourth or subsequent conviction shall be a misdemeanor of a high and aggravated nature and punished as provided in paragraph (3) of this subsection;

(5) If a person has been convicted of violating subsection (k) of this Code section premised on a refusal to submit to required testing or where such person's alcohol concentration at the time of the offense was 0.08 grams or more, and such person is subsequently convicted of violating subsection (a) of this Code section, such person shall be punished by applying the applicable level or grade of conviction specified in this subsection such that the previous conviction of violating subsection (k) of this Code section shall be considered a previous conviction of violating subsection (a) of this Code section;

(6) For the purpose of imposing a sentence under this subsection, a plea of nolo contendere based on a violation of this Code section shall constitute a conviction; and

(7) For purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of this subsection, only those offenses for which a conviction is obtained or a plea of nolo contendere is accepted on or after July 1, 2008, shall be considered; provided, however, that nothing in this subsection shall be construed as limiting or modifying in any way administrative proceedings or sentence enhancement provisions under Georgia law, including, but not limited to, provisions relating to punishment of recidivist offenders pursuant to Title 17.

(d) (1) Notwithstanding the limits set forth in any municipal charter, any municipal court of any municipality shall be authorized to impose the misdemeanor or high and aggravated misdemeanor punishments provided for in this Code section upon a conviction of violating this Code section or upon a conviction of violating any ordinance adopting the provisions of this Code section.

(2) Notwithstanding any provision of this Code section to the contrary, any court authorized to hear misdemeanor or high and aggravated misdemeanor cases involving violations of this Code section shall be authorized to exercise the power to probate, suspend, or stay any sentence imposed. Such power shall, however, be limited to the conditions and limitations imposed by subsection (c) of this Code section.

(e) The foregoing limitations on punishment also shall apply when a defendant has been convicted of violating, by a single transaction, more than one of the four provisions of subsection (a) of this Code section.

(f) The provisions of Code Section 17-10-3, relating to general punishment for misdemeanors including traffic offenses, and the provisions of Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section.

(g) (1) If the payment of the fine required under subsection (c) of this Code section will impose an economic hardship on the defendant, the judge, at his or her sole discretion, may order the defendant to pay such fine in installments and such order may be enforced through a contempt proceeding or a revocation of any probation otherwise authorized by this Code section.

(2) In the sole discretion of the judge, he or she may suspend up to one-half of the fine imposed under subsection (c) of this Code section conditioned upon the defendant's undergoing treatment in a substance abuse treatment program as defined in Code Section 40-5-1.

(h) For purposes of determining under this chapter prior convictions of or pleas of nolo contendere to violating this Code section, in addition to the offense prohibited by this Code section, a conviction of or plea of nolo contendere to any of the following offenses shall be deemed to be a violation of this Code section:

(1) Any federal law substantially conforming to or parallel with the offense covered under this Code section;

(2) Any local ordinance adopted pursuant to Article 14 of this chapter, which ordinance adopts the provisions of this Code section; or

(3) Any previously or currently existing law of this or any other state, which law was or is substantially conforming to or parallel with this Code section.

(i) A person shall not drive or be in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person's blood, breath, or urine. Every person convicted of violating this subsection shall be guilty of a misdemeanor and, in addition to any disqualification resulting under Article 7 of Chapter 5 of this title, the "Uniform Commercial Driver's License Act," shall be fined as provided in subsection (c) of this Code section.

(j) (1) The clerk of the court in which a person is convicted a second or subsequent time under subsection (c) of this Code section within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall cause to be published a notice of conviction for each such person convicted. Such notices of conviction shall be published in the manner of legal notices in the legal organ of the county in which such person resides or, in the case of nonresidents, in the legal organ of the county in which the person was convicted. Such notice of conviction shall be one column wide by two inches long and shall contain the photograph taken by the arresting law enforcement agency at the time of arrest, the name of the convicted person, the city, county, and zip code of the convicted person's residential address, and the date, time, place of arrest, and disposition of the case and shall be published once in the legal organ of the appropriate county in the second week following such conviction or as soon thereafter as publication may be made.

(2) The convicted person for which a notice of conviction is published pursuant to this subsection shall be assessed $25.00 for the cost of publication of such notice and such assessment shall be imposed at the time of conviction in addition to any other fine imposed pursuant to this Code section.

(3) The clerk of the court, the publisher of any legal organ which publishes a notice of conviction, and any other person involved in the publication of an erroneous notice of conviction shall be immune from civil or criminal liability for such erroneous publication, provided such publication was made in good faith.

(k) (1) A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.

(2) Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section, provided that any term of imprisonment served shall be subject to the provisions of Code Section 17-10-3.1, and any period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.

(3) No plea of nolo contendere shall be accepted for any person under the age of 21 charged with a violation of this Code section.

(l) A person who violates this Code section while transporting in a motor vehicle a child under the age of 14 years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or drugs. The offense of endangering a child by driving under the influence of alcohol or drugs shall not be merged with the offense of driving under the influence of alcohol or drugs for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished in accordance with the provisions of subsection (d) of Code Section 16-12-1, relating to the offense of contributing to the delinquency, unruliness, or deprivation of a child.

HISTORY: Ga. L. 1953, Nov.-Dec. Sess., p. 556, § 47; Ga. L. 1968, p. 448, § 1; Code 1933, § 68A-902, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1983, p. 1000, § 12; Ga. L. 1984, p. 22, § 40; Ga. L. 1985, p. 149, § 40; Ga. L. 1985, p. 758, § 17; Ga. L. 1987, p. 3, § 40; Ga. L. 1987, p. 904, § 1; Ga. L. 1988, p. 1893, § 2; Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, § 5; Ga. L. 1991, p. 1886, §§ 6-8; Ga. L. 1992, p. 2556, § 2; Ga. L. 1994, p. 1600, § 8; Ga. L. 1996, p. 1413, § 1; Ga. L. 1997, p. 760, § 23; Ga. L. 1999, p. 293, §§ 1, 2; Ga. L. 1999, p. 391, §§ 7, 8; Ga. L. 2001, p. 208, § 1-5; Ga. L. 2005, p. 334, § 18-15.1/HB 501; Ga. L. 2007, p. 47, § 40/SB 103; Ga. L. 2008, p. 498, §§ 2, 3, 4/HB 336; Ga. L. 2009, p. 8, § 40/SB 46; Ga. L. 2010, p. 422, § 1/HB 898.

 

 § 40-6-391.1.  Entry of plea of nolo contendere; order to attend alcohol and drug course 

(a) The decision to accept a plea of nolo contendere to a charge of violating Code Section 40-6-391 shall be at the sole discretion of the judge but, if such plea is accepted, the penalties provided for in subsection (c) of Code Section 40-6-391 shall be imposed; provided, however, that no such plea of nolo contendere shall be accepted if the person charged with violating Code Section 40-6-391 had an alcohol concentration of more than 0.15 at any time within three hours after driving or being in control of any moving vehicle from alcohol consumed before such driving or being in control ended.

(b) If the defendant has not been convicted of or had a plea of nolo contendere accepted to a charge of violating Code Section 40-6-391 within the previous five years and if the plea of nolo contendere shall be used as provided in paragraph (1) of subsection (a) of Code Section 40-5-63, no such plea shall be accepted unless, at a minimum, the following conditions are met:

(1) The defendant has filed a verified petition with the court requesting that such plea be accepted and setting forth the facts and special circumstances necessary to enable the judge to determine that accepting such plea is in the best interest of justice; and

(2) The judge has reviewed the defendant's driving records that are on file with the Department of Driver Services.

(c) The judge, as part of the record of the disposition of the charge, shall set forth, under seal of the court, his or her reasons for accepting the plea of nolo contendere.

(d) The record of the disposition of the case, including the ruling required in subsection (c) of this Code section, shall be forwarded to the Department of Driver Services within ten days after disposition.

(e) If a plea of nolo contendere is accepted under the conditions set forth in subsection (b) of this Code section, the defendant's driver's license shall be forwarded to the Department of Driver Services as provided in subsection (c) of Code Section 40-5-67.

HISTORY: Code 1981, § 40-6-391.1, enacted by Ga. L. 1983, p. 1000, § 13; Ga. L. 1984, p. 22, § 40; Ga. L. 1990, p. 1154, § 8; Ga. L. 1990, p. 2048, § 5; Ga. L. 1991, p. 1886, § 9; Ga. L. 1992, p. 2564, § 12; Ga. L. 1992, p. 2785, § 25; Ga. L. 1994, p. 831, § 2; Ga. L. 1994, p. 1600, § 9; Ga. L. 1997, p. 760, § 24; Ga. L. 2000, p. 951, § 5A-12; Ga. L. 2005, p. 334, § 18-16/HB 501.

 

§ 40-6-391.2.  Seizure and forfeiture of motor vehicle operated by habitual violator. 

(a) Except as provided in this Code section, any motor vehicle operated by a person who has been declared a habitual violator for three violations of Code Section 40-6-391 and whose license has been revoked and who is arrested and charged with a violation of Code Section 40-6-391, is declared to be contraband and subject to forfeiture to the state, as provided in this Code section, provided that said forfeiture shall not be absolute unless the defendant is finally convicted of such offense.

(b) Any motor vehicle subject to forfeiture under subsection (a) of this Code section shall be seized immediately upon discovery by any law enforcement officer, peace officer, or law enforcement agency of this state or any political subdivision thereof who has the power to make arrests and whose duty it is to enforce this article, that said motor vehicle has been declared contraband. Said motor vehicle shall be delivered within 20 days to the district attorney whose circuit includes the county in which a seizure is made or to his duly authorized agent. At any time subsequent to the seizure, the chief officer of the seizing agency, his designee, or the district attorney may release the vehicle upon bond being posted in like manner as authorized in subsection (e) of this Code section.

(c) Within 60 days from the date of the seizure, the district attorney of the judicial circuit, or the director on his behalf, shall cause to be filed in the superior court of the county in which the motor vehicle is seized or detained an action for condemnation of such motor vehicle. The proceedings shall be brought in the name of the state by the district attorney of the circuit in which the motor vehicle was seized, and the action shall be verified by a duly authorized agent of the state in a manner required by the law of this state. The action shall describe the motor vehicle and state its location, present custodian, and the name of the owner, if known, to the duly authorized agent of the state; allege the essential elements of the violation which is claimed to exist; and conclude with a prayer of due process to enforce the forfeiture. Upon the filing of such an action, the court shall promptly cause process to issue to the present custodian in possession of the motor vehicle described in the action, commanding him to seize the motor vehicle in the action and to hold that motor vehicle for further order of the court. The owner, lessee, or any person having a duly recorded security interest in or lien on such motor vehicle shall be notified by any means of service provided for in Title 9 or by delivery of a copy of the complaint and summons by certified mail or statutory overnight delivery to said owner or lienholder or a person of suitable age or discretion having charge of said owner's premises. For purposes of this subsection, where forfeiture of a motor vehicle titled or registered in Georgia is sought, notice to the titleholder shall be deemed adequate if a copy of the complaint and summons is mailed by certified mail or statutory overnight delivery to the titleholder at the address set out in the title and an additional copy is mailed by certified mail or statutory overnight delivery to the firm, person, or corporation which holds the current registration for said motor vehicle, who shall be deemed agent for service for said titleholder, and said complaint is advertised once a week for two weeks as set out in this subsection. If the owner, lessee, or person having a duly recorded security interest in or lien on the contraband motor vehicle is unknown or resides out of the state or departs the state or cannot after due diligence be found within the state or conceals himself so as to avoid notice, notice of the proceedings shall be published once a week for two weeks in the newspaper in which the sheriff's advertisements are published. Such publication shall be deemed notice to any and all persons having an interest in or right affected by such proceeding and any sale of the motor vehicle resulting therefrom, but shall not constitute notice to any person having a duly recorded security interest in or lien upon such motor vehicle and required to be served under this Code section unless that person is unknown or resides out of the state or departs the state or cannot after due diligence be found within the state or conceals himself to avoid notice.

(d) (1) Any party at interest may appear, by answer under oath, and file an intervention or defense within 30 days from the date of service on the condemnee of the action for condemnation. The owner, lessee, security interest holder, or lienholder shall be permitted to defend by showing that the motor vehicle seized was not subject to forfeiture under this Code section.

(2) A rented or leased vehicle shall not be subject to forfeiture unless it is established in the forfeiture proceedings that the owner of the rented or leased vehicle knew or should have known of or consented to the operation of such motor vehicle in a manner which would subject the vehicle to forfeiture. Upon learning of the address or phone number of the rental or leasing company which owns such vehicle, the district attorney shall immediately contact the company to inform it that the vehicle is available for the company to take possession.

(e) The court to which any such petition for condemnation may be referred may, in its discretion, allow any party at interest, after making said defense under subsection (d) of this Code section, to give bond and take possession of the motor vehicle seized. Such motor vehicle shall not be sold or leased without prior approval of the court. In the event the court approves such sale or lease, the proceeds arising therefrom shall be deposited in the registry of the court, pending final adjudication of the forfeiture proceeding. The court shall determine whether the bond shall be a forthcoming bond or an eventual condemnation money bond and shall also determine the amount of the bond. The enforcement of any bond so given shall be regulated by the general law applicable to such cases.

(f) If no defense or intervention is filed within 30 days from the date of service on the condemnee of the petition, judgment shall be entered by the court and the motor vehicle shall be sold. The court may direct that such property be sold by:

(1) Judicial sale as provided in Article 7 of Chapter 13 of Title 9; provided, however, that the court may establish a minimum acceptable price for such property; or

(2) Any commercially feasible means.

(g) The proceeds arising from such sale shall be deposited into the general treasury of the state or any other governmental unit whose law enforcement agency it was that originally seized the motor vehicle. It is the intent of the General Assembly that, where possible, proceeds deposited into the state treasury should be used and that proceeds vested in any local governmental unit shall be applied to fund alcohol or drug treatment, rehabilitation, and prevention and education programs, after making the necessary expenditures for:

(1) Any costs incurred in the seizure;

(2) The costs of the court and its officers; and

(3) Any cost incurred in the storage, advertisement, maintenance, or care of the motor vehicle.

(h) The interest of an owner, lessee, security interest holder, or lienholder shall not be subject to forfeiture unless the condemnor shows by a preponderance of evidence that such person knew or reasonably should have known that the operator was a habitual violator as set forth in subsection (a) of this Code section and knew or reasonably should have known that such person would operate or was operating the vehicle while in violation of Code Section 40-6-391.

(i) In any case where a vehicle which is the only family vehicle is determined to be subject to forfeiture, the court may, if it determines that the financial hardship to the family as a result of the forfeiture and sale outweighs the benefit to the state from such forfeiture, order the title to the vehicle transferred to such other family member who is a duly licensed operator and who requires the use of such vehicle for employment or family transportation purposes. Such transfer shall be subject to any valid liens and shall be granted only once.

HISTORY: Code 1981, § 40-6-391.2, enacted by Ga. L. 1991, p. 1896, § 1; Ga. L. 2000, p. 1589, § 3.

 

§ 40-6-392.  Chemical tests for alcohol or drugs in blood 

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person's blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:

(1) (A) Chemical analysis of the person's blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.

(B) In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state's or plaintiff's case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver's license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.

(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;

(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and

(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.

(b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, may give rise to inferences as follows:

(1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391; or

(2) If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391.

(c) (1) In any civil or criminal action or proceeding arising out of acts alleged to have been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.08 or more grams in the person's blood, breath, or urine, the person shall be in violation of paragraph (5) of subsection (a) of Code Section 40-6-391.

(2) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (i) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.04 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (i) of Code Section 40-6-391.

(3) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (k) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.02 grams or more in the person's blood, breath, or urine, the person shall be in violation of subsection (k) of Code Section 40-6-391.

(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.

(e) (1) A certification by the office of the Secretary of State or by the Department of Public Health that a person who drew blood was a licensed or certified physician, physician assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist at the time the blood was drawn;

(2) Testimony, under oath, of the blood drawer; or

(3) Testimony, under oath, of the blood drawer's supervisor or medical records custodian that the blood drawer was properly trained and authorized to draw blood as an employee of the medical facility or employer

shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.

(f) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:

"This breath-testing instrument (serial no.         ) was thoroughly 
inspected, tested, and standardized by the undersigned on (date         ) 
and all of its electronic and operating components prescribed by its 
manufacturer are properly attached and are in good working order."
 
When properly prepared and executed, as prescribed in this subsection, the 
certificate shall, notwithstanding any other provision of law, be 
self-authenticating, shall be admissible in any court of law, and shall 
satisfy the pertinent requirements of paragraph (1) of subsection (a) of this 
Code section and subparagraph (g)(2)(F) of Code Section 40-5-67.1.

HISTORY: Ga. L. 1953, Nov.-Dec. Sess., p. 556, § 47; Ga. L. 1968, p. 448, §§ 1, 2; Ga. L. 1974, p. 562, §§ 1, 2; Code 1933, § 68A-902.1, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1975, p. 1008, § 3; Ga. L. 1977, p. 1036, § 1; Ga. L. 1983, p. 1000, § 14; Ga. L. 1988, p. 1893, §§ 3, 5; Ga. L. 1990, p. 2048, § 5; Ga. L. 1991, p. 1886, § 10; Ga. L. 1992, p. 2564, § 13; Ga. L. 1994, p. 1600, § 10; Ga. L. 1995, p. 1160, § 4; Ga. L. 1997, p. 143, § 40; Ga. L. 1997, p. 760, § 25; Ga. L. 2001, p. 208, § 1-6; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2009, p. 859, § 3/HB 509; Ga. L. 2011, p. 705, § 6-3/HB 214.

 

§ 40-6-393.  Homicide by vehicle 

(a) Any person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(b) Any driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(c) Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.

(d) Any person who, after being declared a habitual violator as determined under Code Section 40-5-58 and while such person's license is in revocation, causes the death of another person, without malice aforethought, by operation of a motor vehicle, commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 20 years, and adjudication of guilt or imposition of such sentence for a person so convicted may be suspended, probated, deferred, or withheld but only after such person shall have served at least one year in the penitentiary.

HISTORY: Code 1933, § 68A-903, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1976, p. 977, § 1; Ga. L. 1982, p. 1694, §§ 1, 3; Ga. L. 1983, p. 1000, § 15; Ga. L. 1990, p. 2048, § 5; Ga. L. 1992, p. 2093, § 1; Ga. L. 1999, p. 391, § 9; Ga. L. 2008, p. 1164, § 2/SB 529.

 
 
     

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