By: William C. Head, Atlanta DUI Lawyer
Section 1 of 5 – From the Arrest Scene to Jail
Following virtually every Georgia DUI arrest, the detained driver is relieved of his or her driver’s license. Under Georgia DUI laws, a person arrested for DUI is informed (by the arresting officer) of “implied consent” rights. Under GA law, this is to be done immediately, after arrest for DUI has occurred.The confiscation of the license of the DUI driver signifies that the officer has taken the first step of an administrative license suspension (ALS) process that has many twists and turns before it is over. Since American jurisprudence and the Constitution call for due process of law, you CAN request a hearing by following a detailed appeal process. Georgia DUI book author and veteran DUI lawyer of more than 40 years, William C. Head, has graphically laid out the license suspension and the ALS appeal process in this article.
Because anyone arrested for driving under the influence will be stressed and distracted by going to jail, bonding out, retrieving the towed vehicle and still having to deal with work and family issues, overlooking key deadlines and filing dates are common. As unfortunate as an oversight might be, the Georgia Department of Driver Services (Georgia’s DMV or DPS, for drivers from other states) WILL NOT be able to save your license if you miss these deadlines and hearings.
So, FOLLOW this closely, or risk having a suspended license for a full year!
The first chart below shows the first 3 steps of the DUI arrest in Georgia, which includes the law enforcement officer orally reading the Georgia implied consent law “notice.” This is printed on an orange card, and carried by Georgia police officers who make traffic stops and DUI arrests. The last sentence of the implied consent warning asks the driver under arrest, “Will you submit to the state-administered chemical tests of your (designate which tests) under the implied consent law?”
Where the implied consent advisement asks to “designate which tests,” an officer in Georgia is permitted to ask for a single breath, blood or urine test, two tests, or all three types of tests. In fact, the Georgia Court of Appeals is so eager to see that DUI drivers have to face their implied consent test results in court, where the officer read the informed consent card verbatim — “designate which tests”—that the intermediate court of appeals in Georgia ruled that this was good enough for government work.
As far as a blood test is concerned, however, this is a more invasive implied consent test, so the detained driver must willingly take such test, and if actual consent is not proven by the police officer, this test can be excluded by the trial judge at a pre-trial hearing. Actual consent is also needed on the other types of tests, too, but a recent US Supreme Court case, Birchfield v. North Dakota, has flagged warrantless blood tests as the type of test that should only be sought if exigent circumstances for requesting the invasive type of forensic test.
No matter whether the drive TAKES the test or REFUSES the test (or tests) requested, the driver in custody will have his or her driver’s license taken. The seized license is replaced with a paper, temporary driving permit, referred to in Georgia as the “DDS 1205” or “DDS Form 1205.” This piece of paper very crudely notifies the DUI suspect under arrest that the permit expires in 30 days, and this causes many drivers to erroneously think that nothing needs to be done for a month. WRONG. Other parts of the DDS 1205 tell the detained motorist that he or she only has 10 business days to DELIVER their appeal of the pending license suspension to the Georgia DDS.
So, within a short time after arresting the accused drunk driver, the officer either obtains the requested state-administered test (of blood, breath or urine) and/or deposits the arrested driver at the jail, for booking. Often, the detained person never reads the paperwork from the DUI arrest until released from jail hours or days later.
The arresting officer completes his or her arrest report and other documents associated with the alleged drunk driving, and prepares the DDS 1205 Form to be sent, along with the seized driver’s license to the Georgia Dept of Driver Services. The DUI arrestee and the officer will not likely talk again or come in contact with each other until the administrative license suspension hearing, but ONLY IF the suspended driver files a timely DDS GA appeal, as described in the next section.
Section 2 of 5 – In the first 10 days after your DUI arrest
The arresting officer’s department transmits the DDS 1205 and the seized driver’s license to the Department of Driver Services in Conyers, GA. This is the headquarters of Georgia’s license issuance and license suspension state authority. The workers at Georgia DDS have little to no DISCRETION about your driver’s license, because the rules they must follow are statutory mandates, and leave little room for “interpretation.”
Once the seized license and DDS Form 1205 arrive, the DDS worker will enter your license suspension into the computer. This act will (for 30 days after your arrest date) show on your record as a pending administrative suspension. Yes, that means that you have a suspended license, but this 30 day window is noted, because — if you DO NOT file an appeal — it delays your total license suspension until the 31st day following your DUI arrest. This is not “business days.” This is “calendar” days. If you miss filing an appeal of your suspension within TEN BUSINESS DAYS, your driver’s license will show up as “suspended license” on the computer.
By filing the DUI administrative license appeal within the 10-business day deadline, you EXTEND your ability to drive in Georgia. This is applicable to both Georgia licensees and out-of-state drivers who are licensed elsewhere. Because the process to appeal the ALS suspension is very simple, NO ONE should allow this deadline to pass, unless it is done under the advice and counsel of a top-rated Georgia DUI lawyer.
For example, if your 10 day appeal is postmarked a DAY LATE, and you were written up for having refused the breath test, your driver’s license (or your driving privilege, if licensed in another state) will be suspended from the 31st day after arrest until 365 days have passed. You cannot get a work permit for a refusal, or if this ALS suspension is a second DUI within 5 years, even if you took the state implied consent test. This is what DDS GA workers call a “hard” suspension, meaning that you are not eligible for a limited driver’s permit (work permit), not eligible for early reinstatement, and are totally stranded from being able to drive. If you have a Georgia license, this suspended license status will be shown on a national driver’s registry computers, and you would face the serious offense of driving on a suspended license.
Section 3 of 5. Georgia DDS Sends Appeal to OSAH to Docket
Until your DDS appeal gets sent from Georgia Department of Driver Services to the Office of State Administrative Hearings (OSAH) in downtown Atlanta, GA, you have nothing but your limited driver permit that says it lasts for only 30 days. You will be getting (from DDS GA) a notice of an extension of your driving privileges in the mail, and this notification should be carried with you, along with the DDS 1205 form and your DUI ticket. Even before the paper from GA DDS arrives, their computer will indicate that your limited permit has NOT expired, in case another law enforcement officer checks your status on the DDS computer.
After the OSAH headquarters receives the administrative notice, the staff at OSAH will determine which of their 14 judges will be assigned to hear your administrative appeal. These hearings are grouped by LOCATION OF ARREST, so that you don’t have too far to travel to the designated courtroom for your administrative license suspension hearing. The metro Atlanta, high population counties Fulton County, DeKalb County and Gwinnett County have their own hearing dates. Also, the Georgia State Patrol is given a separate hearing date in Fulton County, due to the high number of DUI arrests. Most of the time, your initial hearing date will be 2 to 3 weeks after your mailed notice is received. For a proper cause or reason, either the officer or the appealing suspended driver can seek a short continuance, under the OSAH Rules.
Many people facing drunken driving charges procrastinate, and do not hire a DUI attorney immediately after their arrest for driving while intoxicated. This delay often results in disaster, when a vital court date is forgotten or overlooked. While an experienced criminal lawyer who is familiar with all aspects of the DUI process can SAVE this disaster from occurring, he or she cannot UNDO a “default” of the self-represented, accused impaired driver.
Section 4 of 5. Appearance, Hearings, and Appeal
The best DUI lawyers in Georgia will universally advise their clients that the ALS appeal process and the scheduled hearing is a CRITICAL STAGE of your representation. The following 3 benefits are just the three most important of dozens of advantages that your DUI case can gain, if you let your criminal defense attorney do his or her job:
If a hearing occurs, the OSAH judge is supposed to issue a final ruling (final order) within 5 days. If the judge upholds the suspended driver’s license, based upon the implied consent violation, you are suspended. This suspension only has jurisdictions for a work permit for arrested drivers who took the state-administered breath alcohol test (or other type of test).
If the judge rules in your favor, and reverses the pending license suspension at GA Department of Driver Services, then THIS aspect of your case (the ADMINISTRATIVE license part) is resolved in your favor, and you can go to a DDS license location and apply for a replacement driver license. Be sure that you look at the DDS website to see what types of ID and documents you need to take with you.
Once the final order is issued, any further legal challenge must be filed quickly, and that action is an appeal under OCGA 40-5-66 to the Superior Court. This can be the Superior Court of the county where the accused driver resides, or it can be in the Fulton County Superior Court, in Atlanta, GA. Very few Atlanta attorneys have ever filed, argued or won an administrative license case, or appeal to a Superior Court. Ask the potential candidates for being your drunk driving lawyer how many Superior Court appeals of DUI license suspension decisions they have won.
Section 5 of 5. New Driver’s License, No License, or Limited Permit (Work Permit)?
The conclusion of the DUI administrative license process can take up to six months, in rare cases, and this is until the administrative law judge has issued his or her final order. The administrative license appeal to a Superior Court would add several more months to the process. However, the median time for resolution of the ALS hearing process is around 75 days, because case resets are common when you are represented by a top Georgia DUI attorney.
Once the ALS aspect of your DUI case is finalized, you will find yourself in one of three distinct positions, insofar as your driver’s license is concerned:
For anyone with a 1st offender DUI “work permit” the following guidelines are strictly enforced. Under no circumstances do you want ANY traffic ticket to be reported to DDS, or this permit will be canceled! So follow the rules and (if you get ANY traffic citation) immediately contact your DUI attorney in Georgia to do whatever is necessary to not have that new uniform traffic citation get recorded on your DDS driving history:
Restrictions on a limited driving permit (work permit) for first offender:
1. Travel to and from work; or performing the normal duties of his or her occupation;
2. Travel to and from school;
3. Travel to and from medical care or obtaining prescriptions;
4. Travel to and from substance abuse treatment;
5. Travel to and from driver education, driver improvement, DUI Drug or Alcohol Use Risk Reduction, or similar programs when ordered to do so by the Court that entered the conviction that resulted in the driver’s license suspension that is the basis of the limited driving permit or probationary license;
6. Travel to attend court, reporting to a probation office or officer, or performing community service; or
7. Transporting an immediate family member who does not hold a valid driver’s license for work, medical care, pick up prescriptions, or get to school.
Having now seen the complicated, convoluted, and treacherous pitfalls that exist during the administrative hearing phase of your DUI case, you can better appreciate the importance of an experienced drunk driving lawyer assisting you. Losing the right to drive is a major blow to any person’s driving under the influence case, so being able to navigate the path of the first 60 days to 180 days after arrest is critical.
Like most things in life, in hiring a criminal attorney, experience matters. This is why you invest time and energy in locating the best DUI attorney in Georgia for your drunk driving case.
Call Bubba Head now at (404) 567-5515 so he has time to save your driver’s license before it is too late. Mr. Head’s office answers the phone 24 hours a day, and you will be able to talk with an Atlanta DUI lawyer right away.