Contact us now! A Georgia DUI trial lawyer with Chestney & Sullivan is available 24/7 to discuss your Georgia administrative license suspension and your DUI case at 404.816.8777
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: 404.291.2151 (call or text), or email at Skip@dui-lawyer.com; Bob@dui-lawyer.com
You only have 30 days from the date of your Georgia DUI arrest to request a hearing to preserve your driving privileges (law took effect 7/01/2017)
If you have been charged with a DUI in Georgia, chances are the officer served you with a notice of an administrative license suspension. 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 DDS-1205 form (click on 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).
- We strongly suggest that you set up an online account with the Georgia Department of Driver Services to monitor the status of your driver’s license: DDS Create User Accounts.
Regardless whether you have actually received a DDS-1205 form, it is important for you to understand that you only have 30 days to request a hearing to preserve your driving privileges or waive your hearing through the Georgia Department of Driver Services by opting for an ignition interlock device permit.
Three tracks you can take [beware of making a choice without the advice of an experienced DUI lawyer]:
- Do nothing within 30 days of the date of your DUI arrest: In most cases we do not recommend this path as if you do nothing and your officer initiated an administrative license suspension action, then on the 46th day after the date of your arrest, your driving privileges will automatically be suspended by Georgia Department of Driver Services for one year with no permit to drive. Even if you did not receive the DDS-1205 form as a result of your Georgia DUI arrest, we still recommend that you take some sort of action instead of doing nothing. However, there are limited circumstances where we recommend our clients do nothing regarding a license suspension action, but those circumstances are rare.
- Request an administrative hearing: This is the traditional track that has been the law for many years now, except now there are thirty days instead of ten business days to take action. This track is where a request for an administrative hearing is submitted to the Georgia Department of Driver Services 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 your Georgia DUI officer’s request for a state administered chemical test of your breath, blood, urine, or other bodily substances.
- Properly waive your right to an administrative hearing and have an ignition interlock installed: This track came into effect July 1, 2017. This allows first DUI arrest in five years drivers to be able to drive in the state of Georgia and fight their Georgia 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 you will need to install an ignition interlock device on your vehicle for a minimum of 120 days if you tested over the “per se” legal limit, or 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. If you choose this track, we highly advise that you install the ignition interlock first, then go to DDS within 30 days from the date of the Georgia DUI arrest to obtain the permit (a checklist to see if you are eligible for the ignition interlock device permit is attached). There are obvious concerns and pitfalls in choosing this track. For many people, the stigma of having the ignition interlock device installed in their vehicle is just not worth it. The ignition interlock device is also expensive: it requires an installation fee as well as a monthly monitoring fee. 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. In addition to waiving your right to an administrative hearing and having an ignition interlock device installed on your vehicle, you must also meet the following conditions:
- An application for the permit must be made with DDS within 30 days of the person being served notice of the ALS by the Georgia DUI arresting officer through the DDS-1205 form (usually 30 days from the date of arrest), or—in the event of a DDS-1205S form—within 30 days of receiving such notice of the ALS from DDS (from a blood test result that was not procured by a search warrant);
- The ALS cannot stem from a motor vehicle accident involving fatalities or serious injuries;
- The person must be licensed in Georgia and not have any other suspensions, cancellations, or revocations against his or her Georgia driver’s license;
- If the person holds a Georgia commercial driver’s license (CDL), he or she must downgrade to a non-commercial Georgia driver’s license in order to obtain and maintain the permit;
- The person cannot have any prior convictions for DUI in the 5-year period preceding application for the permit. It there is a DUI arrest with a DUI conviction within 5 years of the current arrest, the person can still opt for track 2 – requesting an administrative hearing, or track 1 – do nothing at all;
- The person must surrender his or her Georgia driver’s license, either to the arresting officer at time of arrest or to DDS prior to issuance of the permit; and,
- The person must pay a $25.00 permit fee to the Georgia Department of Driver Services.
The period a person must successfully maintain the ignition interlock device on their vehicle will be based on whether he or she consents to or refuses the state-administered chemical test requested by the Georgia arresting officer.
A person who consents to the state-administered chemical test and opts for the new permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 4 months. If he or she is subsequently acquitted of the underlying Georgia DUI charge, or the underlying Georgia DUI charge is dismissed or reduced, the ignition interlock device may be removed at no cost and the driver’s license may be replaced. A person who refuses the state-administered chemical test and opts for the new permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 12 months, regardless of the outcome of the underlying Georgia DUI charge.
Successful maintenance of the ignition interlock device must be evidenced by the permit holder to DDS through the production of satisfactory monthly monitoring reports prior to DDS removing the ignition interlock restriction from the permit. A permit may be renewed for a fee of $5.00 if additional time is needed for the permit holder to comply with the terms of the ignition interlock device, but it may only be renewed one time once the permit holder becomes eligible to reinstate his or her driver’s license. Following the designated term of successful compliance, the ignition interlock device restriction may be removed from the limited driving permit in person at a DDS customer service center for a fee of $100.00 (or $90.00 if removal of the restriction is requested by mail or other approved alternate means). The removal fee is in addition to any reinstatement fee that may be required.
Contact Chestney & Sullivan today to discuss your DUI case with our experienced 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.
So I made a proper request for an administrative hearing, 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 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 day care, 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 is 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 and post the decision online. 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 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 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.
If you are facing a Georgia DUI charge, license suspension action, or have been ticketed for a serious traffic offense, call the experienced DUI trial attorneys at Chestney & Sullivan today. We will meet with you free of charge to discuss your options, and provide advice based on our experience in the court where your case will be heard. Contact us today at 404.816.8777. A DUI lawyer with Chestney & Sullivan is available 24/7 to discuss your case.