Many states, including Georgia, have enacted very tough laws that apply to driving under the influence of alcohol or drugs while a child under the age of 14 is in the vehicle. As part of Georgia’s DUI law, a provision has been added making it a separate offense of DUI child endangerment if a driver is intoxicated while transporting a minor. Sentencing for a conviction of a DUI Child Endangerment charge is covered under a different statute that governs contributing to the delinquency, unruliness, or deprivation of a minor.
If you have been arrested for a DUI in Georgia, experienced DUI trial attorneys James “Skip” Sullivan and Bob Chestney are available to discuss your case anytime – including after-hours and weekends! Call us at 404.816.8777 (office), Mr. Sullivan’s mobile phone: 404.290.2151 (call or text), or email at Skip@dui-lawyer.com; Bob@dui-lawyer.com
What is a DUI child endangerment charge?
Although charges for driving under the influence alone are very serious, drivers who are also charged with DUI Child Endangerment face particularly harsh penalties. Georgia law provides that a driver charged with DUI, while a minor under 14 years of age is also in the vehicle, will face an additional charge of DUI Child Endangerment. The crime of DUI Child Endangerment does not “merge” with the underlying offense of DUI if you are convicted of both DUI Child Endangerment and DUI. It will be counted as a separate offense for the purpose of a license suspension, even when both the DUI charge and the DUI Child Endangerment charge arising out of the same incident. What this means is if you are convicted of DUI and DUI Child Endangerment out of the same arrest, your conviction will be treated as a 2nd in a 5-year conviction for license suspension purposes (see DUI penalties). It will even count towards being declared a Habitual Violator if there was more than one child under the age of 14 in the vehicle, meaning that you could lose your license or driving privileges here in Georgia for up to five years if you have two children in the vehicle under the age of 14 while DUI!
Consequences of a Georgia child endangerment conviction
A Georgia DUI with an additional charge of DUI Child Endangerment can have potentially devastating consequences, especially for those responsible for the care of children in their job, including:
- Teachers
- Coaches
- Daycare owners and employees
- Bus drivers
- Healthcare providers
If your job requires you to drive like the following, a conviction for a Georgia DUI and DUI Child Endangerment could mean the loss of your job:
- Salespeople
- Real estate agents
- Truck drivers (possibly resulting in a lifetime disqualification of a CDL)
- Jobs that require commuting to the office or job site
- Employees who use company cars or fleet vehicles
At best, those with one of the above occupations may be required to disclose their conviction at some point as a condition of employment. Again, it is possible that you may lose your job if convicted of DUI and DUI Child Endangerment.
How to fight a DUI Child Endangerment charge
Typically, to fight a DUI and DUI Child Endangerment charges an experienced DUI attorney must attack the underlying DUI arrest. This can be done in a number of ways, including:
- Challenging the reason for the initial traffic stop
- Challenging the results and accuracy of the breath or blood test
- Finding flaws in the manner in which evidence was collected at the scene
- Discovering and proving misconduct or incompetence by police during their investigation
- The prosecution must prove the age of the child was younger than 14 years of age.
- The prosecution must find you guilty beyond a reasonable doubt at trial.
How our skilled attorneys build a successful DUI defense:
To build a strong DUI defense in Georgia, your DUI lawyer should start by learning everything possible from the information you present. Based on this information, a DUI lawyer can find more evidence by using specialized resources as needed to determine if all testing and other details of your arrest were accurate and legal. This determination is the basis for a strong drunken driving defense in Georgia. Chestney & Sullivan has its own in-house investigator that gathers information, videos, 911 calls, possible surveillance videos, police reports, documents road/scene conditions, and more. There are times when we use the services of toxicologists, accident reconstructionists, private investigators, breath test/field sobriety experts, medical professionals, and video illustrators, to name a few, to help build a solid DUI defense in your case. Our lawyers analyze a case from the initial stop or reason why the police were involved, looks for suppression issues with the admissibility of field sobriety tests or state chemical tests (breath, blood, or urine tests), and develop strategies on how to best conduct administrative license suspension hearings, preliminary/committal motion hearings, and trial. Our team approach is an effective way to ensure we have developed the best strategy for defending your DUI.
Can I just enter a guilty plea myself and avoid hiring an experienced GA DUI lawyer?
There is a saying that “a person who represents himself has a fool for a client.” DUI and DUI Child Endangerment cases are one of the most serious cases that are prosecuted in municipal courts or State Courts. Even if you think you are guilty and may not want to fight your case all the way, there are matters that a skilled DUI lawyer is better able to handle than someone representing him or herself. Here are some reasons why you may consider hiring Chestney & Sullivan rather than representing yourself:
- You can put your driving privileges in jeopardy if you simply go to court and enter a guilty plea. If you have been arrested by a DUI Task Force officer, Georgia State Patrol Nighthawks trooper, or any Georgia police officer, you should have been served notice of an administrative license suspension action. If you enter a guilty plea without properly addressing the administrative license suspension action, you will not be able to get a limited permit (if you are eligible to get one at all) until the administrative action is conducted properly.
- If your license is administratively suspended for refusing the State’s chemical test from losing an administrative hearing or failing to address a license suspension action within 30 days from the date of your arrest, your Georgia driver’s license or driving privileges will be suspended for a year with NO PERMIT. Properly coordinating and handling the criminal case and the administrative license suspension action can improve your chances of being able to drive.
- Other charges in addition to your DUI charge may be more serious and carry more punishment than the DUI charge. An additional charge like DUI Child Endangerment will have a major impact on your driver’s license or privilege to drive in Georgia if you are convicted or enter a guilty/nolo contendere plea to the DUI and DUI Child Endangerment charges. You would not be eligible for a permit if you are a Georgia licensee for at least 120 days, if not longer. You may even be declared a Habitual Violator if there were more than one child in the vehicle under the age of 14.
- Sometimes the prosecutor gives a bad plea offer. Even if you decide not to contest your case, an experienced DUI attorney who is familiar with the municipal court, probate court, recorder’s court, state court, or superior court where your case is pending and can assess a plea offer to determine if it is worth taking or moving your case to state or superior court for possibly a better offer. Or you may decide to take your case to trial to avoid a conviction.
- If you decide to represent yourself at trial, the Georgia Rules of Evidence still apply to you. Lawyers go to law school for years to learn these rules and you will be at the mercy of a skilled prosecutor and judge if you are not careful.
- You may inadvertently give incriminating statements or evidence if you represent yourself and speak to a prosecutor or judge without being represented by an attorney.
Administrative License Suspension
Besides your criminal case pending in State Court, Superior Court, or any municipal court, probate court, or recorder’s court, you are likely facing an administrative license suspension. There is only a limited time to request this separate hearing to preserve your driving privileges. Whether you refused the State’s chemical test, or the breath test results indicated an alcohol concentration above the legal limit, Georgia law requires your officer to serve you notice of an administrative license suspension. The form that is used is called a DS 1205 form (click on the link to show the form). This form is either yellow or white and the officer may have had you sign it. Sometimes this paperwork gets lost (you may have received it, but may have been misplaced, or it may have been lost at the jail).
You only have 30 days to request a hearing to preserve your driving privileges:
You only have 30 days to request a hearing to preserve your driving privileges or waive your right for a hearing through the Georgia Department of Driver Services by opting for an ignition interlock permit.
Regardless of whether you have actually received a DS-1205 form, it is VERY IMPORTANT that you take action within 30 days from the date of your arrest to preserve your driving privileges.
There are now two tracks you can take regarding your driver’s license if you have been served a notice of an administrative license suspension (DS-1205 form – commonly referred to by law enforcement as a temporary driving permit). It is essential that you understand your options as your decision can substantially impact your ability to drive.
One track is the traditional track that has been the law for many years now. A request for an administrative hearing challenging the officer’s decision to administratively suspend your driver’s license for testing above Georgia’s “per se” legal limit for alcohol concentration, or for refusing the officer’s request for a state-administered chemical test of your breath, blood, urine, or other bodily substances (we have yet to see a DUI case involving testing of “other bodily substances”…).
The other track is new as the law took effect July 1, 2017. This allows first DUI arrest in five years for drivers charged with a DUI to be able to drive in the state of Georgia and fight their DUI criminal case without losing the privilege to drive. It comes with a cost of course. It involves you waiving your right to an administrative hearing through the Georgia Department of Driver Services and installing an ignition interlock device on your vehicle for a minimum of 120 days if you tested over the “per se” legal limit, and one solid year of having the ignition interlock device installed in your vehicle (and driving under the confines of an ignition interlock permit) if you refused the officer’s request for a state-administered chemical test, and obtaining an ignition interlock permit. There are obvious concerns and pitfalls in choosing this track. First, you can amaze your friends with your fancy new device that makes your car start by blowing into the device. For most folks, the stigma of having the interlock installed in your vehicle is not worth it. The ignition interlock device is also expensive: it requires an installation fee as well as a monthly monitoring fee. Oh, and if you remove it while under your ignition interlock permit, tamper with it, or it tests positive, your permit to drive may be revoked for six months – meaning no driving at all. So no party tricks with your friends “testing” your ignition interlock device.
Either way, if you do not request a hearing within 30 days from the date of your arrest and pay the Georgia Department of Driver Services a $150 fee, or properly waive your right for an administrative hearing through the Georgia Department of Driver Services in exchange for an ignition interlock device permit, your Georgia driver’s license or privilege to drive in Georgia (for those with an out of state driver’s license) will be suspended automatically on the 45th day after the date of your arrest – if your officer submitted the administrative license suspension DS-1205 paperwork to the Georgia Department of Driver Services. In most cases, you do not want your license to be suspended without a hearing, or without waiving your hearing by agreeing to the ignition interlock permit.
There are times when it may be a good strategy not to submit a request for a hearing, or to purposefully lose an administrative license suspension action. That sounds counter-intuitive, but in a limited number of circumstances, it is a wise strategy to gain an advantage in the criminal DUI case. We do not make a decision to use this type of strategy until we thoroughly review your case to see if the facts of your case fit within one of those limited circumstances. We then review with you the pros and cons of using such a strategy.
Contact us today to discuss your DUI case with our experienced Ga DUI trial lawyers at 404.816.8777. Our dedicated DUI trial lawyers are experienced in handling administrative license suspension actions. We can review your case and prepare a strategy for your criminal case and your administrative license suspension action.
Once a proper request for an administrative hearing is made, what happens next?
The administrative license suspension action is a civil action separate from your criminal case and only deals with your license or privilege to drive in this state. As a matter of fact, the administrative license suspension action is litigated by a completely separate court from your criminal case. Once the Georgia Department of Driver Services processes your request for a hearing, your case is then sent to the Georgia Office of State Administrative Hearings where a hearing will be scheduled in front of an administrative law judge. Typically a hearing date with the Office of State Administrative hearings is set roughly 30 to 60 days from the date of your arrest. Once a hearing is requested, the Department of Driver Services will extend your driving privileges until there is an order entered from an administrative law judge.
The scope of the administrative hearing is very limited:
At a hearing, the administrative law judge has a very limited role in deciding your case. The administrative law judge is bound by law to only look at certain statutory factors to determine whether or not those statutory factors were met. That is it. The judge does not look at your criminal or driver’s history. The judge is not concerned about your job, transportation issues with your children’s school or daycare, or any other hardship you may if your license is administratively suspended. The administrative law judge’s only role in an administrative hearing is to determine if the following factors were met:
- 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 (the DUI statute); or
- Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
- 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 consequences of submitting or refusing to submit to such test; and
- Whether the person refused the test; or 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
- 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 of 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.
How is the administrative hearing conducted?
The administrative law judge will enforce the Georgia Rules of Evidence., similar to other court proceedings. Because the burden is on the officer to establish that the statutory factors were met, the officer testifies first. Some jurisdictions allow the officer to have help from the prosecutor’s office, or if the officer is a Georgia State Trooper, an attorney paid by the State of Georgia assists the officer on direct examination. The officer is then subject to cross-examination. There are times when we may decide to place our clients or other witnesses on the stand for direct examination. Our witnesses would then be subject to cross-examination from the other side. Once the testimony and presentation of the evidence are finished, each side can make a closing argument. The administrative law judge will then make a decision typically within 5 business days and will transmit that decision to the parties and the Georgia Department of Driver Services. If there is an error in how the administrative law judge ruled, there is an appellate process available to review the court’s decision.
What happens if I win the administrative hearing?
If the administrative law judge finds that one or more of the applicable statutory factors above are not met, then the administrative law judge will issue an order reversing the suspension action, transmit it to the Georgia Department of Driver Services, and then Georgia DDS will delete the administrative license suspension action off your driver’s history (no administrative license suspension). This does not mean that the criminal case is being dismissed, but an administrative hearing can be a great tool to gain an advantage in the criminal case.
What happens if I lose the administrative hearing?
If the administrative law judge finds that all of the applicable statutory factors were met by a preponderance of the evidence (a lower standard of proof than beyond a reasonable doubt), then the judge will issue an order affirming the license suspension action and will transmit the order to the Georgia Department of Driver Services, who will then impose the license suspension. Again, because the burden on the officer is so low to meet in these administrative hearings, there is a good possibility that your license may be suspended, but we still may be able to gain an advantage in the criminal case based on testimony from the administrative hearing. If the administrative law judge committed an error in a ruling, the decision can be appealed.
Can I handle the administrative hearing myself?
Because an administrative license suspension from a Georgia DUI arrest is a very complex subject that even many lawyers don’t understand, we strongly encourage you to contact Chestney & Sullivan right away to discuss your DUI, DUI Child Endangerment case. There are simply too many variables that can impact your driving privileges to be discussed here without knowing the specific facts of your case and your prior criminal history. Remember, you only have 30 days to request an administrative hearing through the Georgia Department of Driver Services.
Contact Chestney & Sullivan today.
If you or a loved one is facing child endangerment charges stemming from a DUI arrest in Atlanta, Alpharetta, Marietta, Lawrenceville, Roswell, or any city or county in northern Georgia, call our office today at 404.816.8777. An experienced Georgia DUI attorney is available 24/7 to discuss your case. Your initial consultation with one of our experienced DUI attorneys is free, and all information will be kept strictly confidential.