By: William C. Head, DUI Lawyer Atlanta, and Drunk Driving Book Author
While an aggravated misdemeanor in Georgia is not reserved exclusively for repeat offense DUI law violators, most of these enhanced punishment misdemeanor cases are for driving under the influence cases.
While most descriptions of the potential severity of punishment for criminal offenses focuses on misdemeanor vs felony, the Georgia Legislature’s use of an aggravated misdemeanor was intended to control the sentencing by Georgia judges in drunk driving cases in GA.
This special class of misdemeanor offenses pushed the maximum jail fine amount up from $1000 to $5000, and adjusted the mandatory amount of time a person had to stay in the county jail for these crimes. Unlike our sister state of Iowa, where lawmakers enacted an aggravated misdemeanor, Georgia law is denominated “high and aggravated.” This short YouTube video by Atlanta DUI Lawyer Bubba Head talks about the high and aggravated misdemeanor category of Georgia crimes.
Historically, the state of Georgia did not pass a felony DUI statute, based upon the number of prior DUI GA convictions, until 2008. For decades before that, some drivers would get dozens of drunk driving convictions, and a slap on the wrist misdemeanor sentence.
Even before the DUI felony law in Georgia was passed, and at a time that a strong contingent of Legislators would not pass a statute making repeat offenders (on their third DUI or more) for Georgia DUI a felony, the aggravated misdemeanor statute, OCGA 17-10-4, was enacted in 1990, and specially sanctions a 3rd DUI offense in Georgia.
This passage from a Georgia Court of Appeals case, State v. Bangley, more fully explains this small part of Georgia’s legal history, and talks about how Georgia law distinguishes and defines an aggravated misdemeanor:
Prior to 1990, OCGA § 40-6-391(c) provided that “every person convicted of [DUI] shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as follows….” Ga. Laws 1985, p. 758, § 17. Subparagraphs (1), (2), and (3) provided for escalating levels of mandatory minimum punishment, depending upon the number of convictions within the previous five years measured from the dates of previous arrests leading to convictions. Prior to 1990, though, even the most severe possible punishment for repeat violations of OCGA § 40-6-391 within five years did not exceed the maximum allowable for misdemeanors generally. See OCGA § 17-10-3.
In 1990, the Georgia General Assembly amended OCGA 40-6-391(c) to provide that “[e]very person convicted of [DUI] shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor and shall be punished as follows….”
The scheme of punishment provided under the current law, however, still is based upon the number of convictions within that same five-year period used in the prior law. The chief difference is that the maximum punishment for a third or subsequent offense within five years now can be the maximum for high and aggravated misdemeanors. OCGA § 17-10-4. State v. Bangley, 209 Ga.App. 208 (1993)
The unusual law in Georgia for aggravated misdemeanors and its legal impact is worth reading. The statute provides a more complete definition than the excerpt from the Bangley case. In essence, any person given a lengthy jail sentence for DUI in Georgia, on a third DUI offense, will have to serve 26 days of every 30 days that he or she is sentenced.
This statutorily takes away “good time” credit (e.g., “2 for 1” days of credit, or more, such as “3 for 1,” when the inmate agrees to perform physical work duties. Most Georgia jails offer these types of incentives, to people incarcerated, under a misdemeanor jail sentence. But, these beneficial programs are prohibited for a person sentenced under the high and aggravated misdemeanor laws in GA.
(a) A person who is convicted of a misdemeanor of a high and aggravated nature shall be punished by a fine not to exceed $5,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a term not to exceed 12 months, or both; provided, however, that a person convicted of a misdemeanor of a high and aggravated nature which was committed by an inmate within the confines of a state correctional institution and sentenced to confinement as a result of such offense shall be sentenced to confinement under the jurisdiction of the Board of Corrections in a state correctional institution or such other institution as the Department of Corrections may direct for a term which shall not exceed 12 months.
In all cases of a conviction of a misdemeanor of a high and aggravated nature, the sentencing court shall retain jurisdiction to amend, modify, alter, suspend, or probate sentences imposed under this Code section at any time; but in no instance shall a sentence imposed under this Code section be modified in such a manner as to increase the amount of fine or the term of confinement.
(b) Notwithstanding any laws to the contrary, a person sentenced for a misdemeanor of a high and aggravated nature may earn no more than four days per month earned time allowance. Ga. Code Ann., § 17-10-4
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