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Administrative License Suspension (ALS) in A DUI Case

What is the Administrative Driver’s License Suspension in A DUI Case?

An arrest for Driving Under the Influence (DUI) also carries potential administrative/civil consequences against the ability to drive for a person charged with DUI. The civil administrative case is separate from the criminal case. The burden of proof in the civil administrative license suspension case is lower, and the elements of the civil administrative case are not the same as the criminal DUI case. In the civil administrative license suspension case, no fines, jail time, probation, or community service may be imposed, but a lengthy suspension of your driver’s license may occur as a result of the civil administrative case. Generally, immediately after your arrest for DUI in Georgia, the arresting officer and the Georgia Department of Driver Services will start the civil administrative license suspension process.

What to Know About Your Driver’s License if You’ve Been Charged With a DUI

If you’ve been charged with a DUI, this what you need to know about your driver’s license. There are 2 cases that you will face: the criminal DUI case and the administrative license suspension. The administrative license suspension case is as important as the criminal case, particularly if you are alleged to have refused the test. It’s a really common question that clients have. If they’ve been charged with a DUI about whether or not they’re going to lose their license as a result of refusing to submit to a test. I really don’t worry about cases in which my client submitted to the test in terms of the administrative license suspension. That suspension is very minimal and in a first lifetime DUI in a first and five DUI, you’re eligible for an a permit immediately so you don’t have to worry about any real suspension of your license affecting your ability to get to and from work, school medical emergencies kind of thing. The real problematic situation arises whenever you refuse to submit to the state administered test and that’s whenever you can lose your license for up to a year. And that suspension folks is with no limited permit whatsoever. It’s a hard suspension with no work permit, no school permit, no anything, no drive.

For a year if you’re under that suspension, the only way you can get that suspension lifted is if you win your DUI or get it reduced reckless driving or some of the disposition other than a DUI. So that’s the really problematic one. And for a lot of clients they are just are not getting good advice. It’s sort of assumed that that part of the case by virtue of following an appeal is going to go away. And I have to tell you that is not at all what it is is going on these days. The decision is much more complex, much more rushed and you’re usually making the decision based on very limited information. So usually that hearing will occur within 45 to 60 days after the date of arrest and you in most jurisdictions will not have discovery during that time. So you’re going to be making a decision based on very limited information and you’re going to have to make a really hard decision, which is am I going to fight this case and potentially lose my license or am I going to make a deal in this case?

If you’ve been charged with a DUI, this what you need to know about your driver’s license. The administrative license suspension case can be as important as the criminal case.

A lot of clients just think that deal doesn’t mean anything, but the deal does mean something. And the deal will be that you plead guilty to the DUI. Now a lot of clients think as well that, and a lot of lawyers think as well that you can just walk out of that, that hearing the administrative license suspension and just break that deal and it’s no big deal at all. It’s actually a huge deal. Um, and is a huge deal for a couple reasons. One, the State can try to reintroduce re introduce that into the trial of your DUI case and to the officer in the case can try to reinstate that license suspension against you. And odds are you probably will not get a hearing upon that suspension if they try to reinstate it. So really be aware of those consequences as you’re going into it and understand that that hearing is not a given and it’s not anything to take lightly at all. It’s one that you really have to be conscientious about being prepared for as well as you can and know that there’s going to be some hard decisions that must be made at that hearing. If you have any questions, feel free to call me. My name is Ben sessions. My phone number is (470) 225-7710, thank you.

How Long Is the Suspension that May Result from An Administrative License Suspension in Connection with A DUI

  • For an alleged per se violation – .08 BAC for drivers older than 21 in a non-commercial vehicle, .04 BAC for drivers of a commercial motor vehicle, or .02 BAC for drivers under the age of 21, 30 days after the suspension goes into effect, you can reinstate your license with proof of completion of DUI school and payment of a reinstatement fee of $210.00 ($200.00 by mail).
  • The period of suspension increases to 18 months for a second ALS suspension within five years.
  • The period of suspension increases to five years for a third within five years – a probationary license may be available after two years.
  • In the case of a refusal, the suspension is a “hard” one-year suspension with no limited permit, unless and until a non­-DUI disposition is obtained.

Limited Permit for An Administrative Driver’s License Suspension

If a person who is administratively suspended has not been convicted of DUI based on an arrest that occurred within five years of the arrest resulting in the suspension (i.e., first DUI in five years), that individual is entitled to a limited permit. This “ALS limited permit” is valid for thirty days, costs $25.00, and entitles the holder of the permit to drive for work-related purposes, to obtain medical care or prescribed drugs, to attend school, or to receive substance abuse treatment.

Limited Driving Permits Following Administrative License Suspensions (ALS) in Georgia DUI Cases

Following a DUI arrest in Georgia, your Georgia driver’s license may be suspended prior to the conclusion of the criminal portion of your DUI charge. Under the current practices of the Department of Driver Services, if you submitted to the blood or (post-arrest) breath test, you will most likely be eligible for a limited permit if you suffer an administrative license suspension.

The relevant provision of O.C.G.A. § 40-5-64 states:

(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 years of age or older 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.

O.C.G.A. § 40-5-67.2(a)(1) referenced in O.C.G.A. § 40-5-64 states:

(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.

The referenced section of O.C.G.A. § 40-5-67.1 states:

(c) 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) 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.

It’s a confusing maze of statutes that DDS currently relies upon for the issuance of limited permits in cases where you submitted to the state-administered test and the results were in excess of the legal limit. That all being said, it is completely unclear why/how the Department of Driver Services continues to disregard the clear mandate that.

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.

O.C.G.A § 40-5-67.2.

Again, why aren’t refusal cases eligible for a permit?

Preventing the Administrative Driver’s License Suspension in Connection with A DUI Case

Our law now provides for the two (2) alternative courses of action if you are facing an administrative license suspension. Here, we provide you with some guidance about what actions you should take in response to an administrative driver’s license suspension. Please remember that your circumstances can and will vary and our opinions cannot replace the advice of a DUI attorney that you should hire with regard to your individual case. These opinions do not create an attorney-client relationship.

The suspension of your driving privileges can be prevented by challenging the suspension. To challenge the suspension it is necessary to request an administrative hearing and submit a $150.00 filing fee within 30 days of being served with notice of the suspension. This notice is usually given when the person is arrested. However, the hearing request requirement is not immediately obvious because it is hidden on the reverse side of the “Sworn Report of the Arresting Officer.” In cases of blood tests, the notice is occasionally sent to a motorist at the address· the Department has on file (usually the same address that is on your license). The notice resulting from a blood test is sent after the Department receives notification from the police agency that your blood tested over the legal limit.

After the Department receives a request for an administrative hearing, the Department will place the suspension on hold until the scheduled date of the hearing. During this time, you will have the same driving privileges you had before your license was taken. After the Department receives a timely request for an administrative hearing, the Office of State Administrative Hearings should set the date for the administrative hearing to take place within 30 days. Do not be too upset if your hearing is not held with that time frame; after all, you remain “street legal” in the meantime.

It is not always necessary for you to appear at the administrative hearing if your attorney appears on your behalf. If no one appears on the licensee’s behalf, the suspension will be upheld, and the suspension will begin as soon as the administrative law judge issues an order. If the arresting officer or the breath testing officer fails to appear, then the suspension is generally set aside for lack of a necessary witness.

If all the parties appear, then the administrative law judge (a lawyer employed by the Office of State Administrative Hearings) will hear the issues and make a determination or ruling (usually within five calendar days), and this ruling will be sent by mail. The issues at the administrative hearing are whether the arresting officer had reasonable grounds to believe the client was driving under the influence, the person was lawfully placed under arrest, the officer properly read the Implied Consent warning, and the driver either refused the state-administered test or the test result was at or above the per se limit.

The burden of proof is on the Department, and the standard of proof is the preponderance of the evidence. The preponderance of the evidence means it is more likely than not that the requirements set forth in the preceding paragraph have been met. This is a much lower standard of proof than the criminal standard of proof beyond a reasonable doubt.

Unfortunately, there are attorneys who tell their clients not to bother with the administrative hearing because they cannot be won. While these hearings are difficult to win, it is not impossible. We do get many of our clients’ licenses back after successfully challenging the suspension. Any attorney who advises you not to request the hearing and challenge the suspension should be avoided at all costs. The administrative hearing is the opportunity to cross-examine the officer under oath to discover the weaknesses or strengths of the government’s case against you. Not challenging the suspension and cross-examining the officer at the hearing is the equivalent of not reading the police reports. There is a limited – very limited – category of cases where it may be in the client’s best interests to ask the officer to withdraw the administrative suspension in exchange for a guilty plea, but this decision should be made only after all the available evidence regarding the case is reviewed and as a last – not a first – resort. Otherwise, it cannot be emphasized strongly enough that, if you are serious about fighting the case, it is imperative to have this additional opportunity to cross-examine the officer under oath.

Georgia DUI Administrative License Suspension (ALS) Hearings: Avoid Getting “Jammed Up”

Getting “jammed up” is a slang term that some lawyers use to describe being unprepared for an event in court.  Increasingly, I see lawyers at administrative license suspension hearings who encounter officers that are unwilling to rescind refusal suspensions – even for agreements to plead guilty.  Those lawyers typically have no idea how to address this uncomfortable position.  This article is the first in a series addressing preparation for “refusal” administrative license suspension hearings.  This introduction addresses how the lawyer should approach the “refusal” ALS hearing.  These considerations do not apply to cases in which our clients submitted to the requested blood or breath test.  Generally, a hearing should be conducted on those cases.

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So, your client came into your office and showed you their ALS (DDS Form 1205), which indicated that they refused to submit to the request blood, breath, or urine test.  Right after you tell the client that a refusal may result in a suspension of driving privileges for 12 months (with no work or school permit).  Then, they proceeded to tell you that they absolutely cannot afford to lose their driving privileges for 12 months.  Every lawyer who has handled any number of DUI cases has had this conversation with a prospective client.

UNDERSTANDING THE POSSIBLE OUTCOMES OF THE GEORGIA DUI ALS HEARING IS THE KEY

Most lawyers approach this situation assuming that they can save the client’s driving privileges, at least for work and school, if the client does not have a prior DUI conviction.  This assumption, however, can be costly and the source of a lot of stress for both the lawyer and the client.  Do not assume that you can obtain a withdrawal of the 1205.  Under our Rules of Professional Conduct, we cannot guarantee any client that we can save their privilege to drive in this case.  We do not control the discretion of the arresting officer (or the Department of Public Safety).  The arresting officer or DPS has discretion to press forward with the suspension in these case.  In most cases, the assumption that the officer will withdraw the ALS suspension if a guilty plea to the DUI is offered is correct.  However, every case should be prepared as though the officer will not agree to withdraw the ALS for a plea to the DUI.

Most importantly, the client should be prepared for the possibility that the arresting officer or DPS may not agree to a withdrawal of the ALS in exchange for a plea.  Clients rely on your expertise to prepare for these possibilities.

Appealing the Denial of Your Appeal from The DUI Administrative License Suspension

If the Office of State Administrative Hearings upholds the suspension after an administrative hearing has been held, a Motion for Reconsideration may be filed within ten days of the final decision, or an appeal may be filed within thirty days from the date of the order upholding the suspension. Said appeal is initiated by filing a petition for judicial review in Fulton County Superior Court or the Superior Court of the licensee’s county of residence.

The licensee is not required to post a bond when the appeal is filed or during its pendency. However, the person is not allowed to operate a motor vehicle in violation of any suspension by the Department of Driver Services while the appeal is being considered. In addition, a Superior Court will generally not “stay” a license suspension during the appeal.

Out-Of-State Licenses and The DUI Administrative License Suspension Case

If you possess a driver’s license from another state, Georgia can only suspend or revoke your privilege to drive in Georgia. Most states – not including Georgia – are a member of the Interstate Driver’s License Compact. This compact requires all member states to report driving convictions or departmental actions to the licensee’s home state. The home state is the state that issued the licensee’s license. Although Georgia is not a member state, our DDS will routinely report adverse actions to other states as required by O.C.G.A. 40- 5-51.

Once the home state is notified, it may take action against your license. If the home state takes action, it will send notice to you at the address the home state has on file. This notice will usually advise you of the home state’s action. The notice may or may not have the licensee’s appellate rights listed. Once this notice is received, you should immediately contact a lawyer in your license issuing state to explore ways to prevent license suspension.

Each state handles license suspensions differently. If the suspension in Georgia is the result of not successfully challenging the suspension at the administrative level, then the suspension is an administrative suspension. If the suspension in Georgia is based on a conviction for DUI, then the suspension is a conviction suspension. This may be an important distinction because some states will not suspend your license based on an administrative suspension from Georgia.    Most states – but not all – will suspend your driver’s license if you are convicted of DUI.

For example, some states, such as Kansas or Tennessee, will not suspend your driver’s license because they require a DUI conviction before they will suspend a license for an out-of-state DUI. You will not be able to drive in Georgia until the administrative suspension period ends and you complete the reinstatement process. However, you should be able to drive in all states other than Georgia during the period of the administrative suspension.

 

If you refused the state-administered blood, breath, or urine test or if you submitted to the state-administered blood or breath test and it produced results greater than the applicable legal limit (.08 for drivers over 21 in non-commercial vehicles, .02 for drivers under 21 in non-commercial vehicles, and .04 for drivers in commercial vehicles), you will likely face an administrative license suspension case. These hearings are triggered by the filing of a 10-day letter following the officer’s issuance of a DDS Form 1205 or 1205-S following a Georgia DUI arrest in.

The vast majority of administrative license suspension (ALS) cases is resolved by virtue of a rescission because the arresting officer did not appear at the ALS case or because a lawyer enters into an agreement with the arresting officer for the withdrawal of the administrative license suspension. If either of these events occur, the administrative license suspension case is rescinded or dismissed and, while your DUI case will still go forward, you are entitled to the re-issuance of your driver’s license.

  • Obtain a copy of the ALS dismissal/rescission before you go to the DDS to have your driver’s license re-issued. You can get a copy of the ALS decision in your case by clicking here.
  • Locate the DDS Customer Service Center nearest to you.
  • The cost for re-issuance of your driver’s license is $5.00.
  • It’s strange, but you will frequently run into different requirements for the re-issuance of your driver’s license following the dismissal of the administrative license suspension case. Out of an abundance of caution, it’s a good idea to carry with you the documents required to obtain another driver’s license after losing it:

REQUIRED DOCUMENTATION FOR THE RE-ISSUANCE OF A LOST DRIVER’S LICENSE

  • One ORIGINAL OR CERTIFIED DOCUMENT from Category A in the name as it appears on your license.NO COPIES OR FAXES.

OR

  • Two documents from Category B in the name as it appears on your driver’s license.All documents must be in English. 

Category A – One document is required from this category.

  • U.S. Passport or Passport Card that has been expired for less than 10 years.
  • Certified copy of a birth certificate filed with the State Office of Vital Statistics or equivalent agency in the customer’s state of birth (hospital certificates are not acceptable)
  • Consular Report of Birth Abroad (Form FS-240, DS-1350 or FS 545)
  • Valid, unexpired Permanent Resident Card (form I-551)
  • Valid, unexpired Employment Authorization Document (EAD), Form I-766 or Form I-688B
  • Valid, unexpired Foreign Passport with a valid unexpired U.S. visa affixed accompanied by the approved I-94 form documenting the applicant’s most recent admittance into the United States
  • Certificate of Naturalization (Form N-550 or N-570)
  • Certificate of Citizenship (Form N-560 or N-561)

Category B – Two documents are required from this category.

  • Original or certified copy of Marriage License. Please note:  On June 26, 2015, the United States Supreme Court ruled that all States recognize same-sex marriage.  Same-sex marriage is recognized in the State of Georgia.
  • Original Social Security Card
  • Previous Year Income Tax Return
  • Current Auto, Home, Life or Health Insurance Policy (Cards Not Accepted)
  • Current Automobile Registration Receipt
  • Voter Registration Card
  • Valid or expired Military Identification Card  and/or Military Order

As a DUI lawyer, I often attend pretrial conferences and negotiations with prosecutors where the arresting officer is present. If that is the case for you, there are a few things you can do to strategically approach the negotiation when the officer is in the room. This can be a very uncomfortable situation, and you may feel like you are not able to be candid about the weaknesses in the prosecutor’s case against you. However, there is one simple thing that you should do when negotiating your DUI case with a prosecutor.

Stick To The Facts Of Your Case In DUI Negotiations

If the arresting officer is present during negotiations, you should refrain from talking about anything that is not objectively present in the case. This means that you only discuss evidence that is not there. For example, focus on the things that the officer failed to do in the course of investigation. Also, do not stray away from the facts of the case.

The goal in a DUI negotiation is to remove all subjective factors of the case, such as your “belief” that you are not impaired. Stick to factual evidence that may make it into trial, such as your background, your prior arrest history, and any evidence that will not be available to the prosecutor. These are the things that you can leverage when working to resolve your DUI case with the prosecution.

What Evidence Should I Discuss When Negotiating My DUI Case?

You will be safe in talking to the prosecutor about evidence that is not present in your case. This may include a missing blood test, breath test or urine test. You can also point out different tests that were missing from the field sobriety test, such as standing on one leg, divided attention tests, or walk and turn tests. 

Another important factor to discuss is whether or not there was a driving infraction, or a reason for why the arresting officer pulled you over in the first place. You may also ask to see the video of the arrest. If there is no evidence of impaired driving, then you can use that in negotiations as well. Most importantly, stick to the objective factors.