If you have an out of state driver's license please skip to the bottom and first read the section titled "Rights of drivers with out of state driver's licenses" in order to determine if the other sections apply to you. If you have a Georgia driver's license please read all sections except the section for out of state driver's licenses.
Right to Have Your Implied Consent Notice Read to You
If you drive on Georgia's highways then according to Georgia law, you have implicitly consented to chemical testing of a bodily substance to determine the presence of alcohol in you. However, before any such test results may be introduced against you, the state must show that they advised you of your rights under the Implied Consent Statute of Georgia. (See Carthon v. State, 248 Ga.App. 738, 740(1) (2001)). Under the Implied Consent Statute of Georgia, at the time that a chemical test or tests were requested from you, the arresting officer should have read the appropriate implied consent notice to you such as the following:
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more (if you are under the age of 21), or 0.08 grams or more (if you are over the age of 21), or 0.04 grams or more (if you were operating a commercial motor vehicle), your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”
If the law enforcement officer read a similar notice to you to advise you of your rights regarding the administration of chemical testing, it will be presumed that you were properly advised of your rights under Georgia Law, and the results of any chemical tests or the refusal to submit to such tests may be admitted against you. Keep in mind that while the notice should have been read in its entirety to you, it need not have been read in exactly the same language as above so long as the substance and meaning of the notice were the same.
Right to a Notice of Intention to Suspend or Disqualify the License
You are entitled to a notice of suspension or disqualification of your license or permit personally served by the law enforcement officer if you refuse the test requested by him/her either at the time you refused the test or at the time when such a test indicates that suspension or disqualification of your license will be required as per Georgia's Code § 40-5-67.1 which explains Georgia's DUI law. At this point, the law enforcement officer will take away your driver's license or permit and will issue a 30 day temporary permit for you. The officer has thirty calendar days after the date of your arrest to forward your driver's license to the department along with the notice of intention to suspend to disqualify your license along with a report. However, if the officer fails to transmit the report within thirty calendar days, the department can still use the report at the time it is provided to suspend or disqualify your driver's license or permit. If you are issued a 180 day permit instead of a 30 day temporary permit, this paragraph does not apply to you.
If your arresting officer fails to give you a notice of suspension, it may be provided to you by the department. When the department receives the report from your arresting officer, it will suspend your driver's license, permit, or nonresident operating privileges or disqualify you from operating a motor vehicle and it should send you such notice by regular mail at your last known address. The notice will inform you of the grounds of your license's suspension or disqualification, the effective date of the suspension or disqualification, and your right to review. The notice will be presumed to be received by you three days after it is mailed by the department.
Right to a Hearing
If you want a hearing on the matter, you should send $150.00 in filing fee together with a written request to the department for a hearing within thirty days from the date you receive personal notice or receipt of such notice. You should send your materials by certified mail or statutory overnight delivery along with a request for a return receipt. If you miss the thirty day time limit, then your right to a hearing will be waived.
The department will hold the hearing for you as per the “Georgia Administrative Procedure Act.” Your hearing will be held 30 days after your written request has been received by the department and will be recorded. The hearing will be limited to addressing the following issues:
- Whether the law enforcement officer had reasonable grounds to believe that you were driving or had actual physical control of the vehicle that you were stopped in while under the influence of alcohol or some other controlled substance and whether you were lawfully placed under arrest as per Georgia's Code § 40-6-391 for violating Georgia's DUI laws; or whether you were involved in a motor vehicle accident or collision resulting in serious injury or fatality.
- Whether the officer informed you of your implied consent rights at the time of the request for the test(s) and also about the consequences of submitting or refusing this request.
- Whether you actually refused the tests requested by the law enforcement officer or whether the test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more if you are over the age of 21, an alcohol concentration of 0.02 grams or more if you are under the age of 21, or an alcohol concentration of 0.04 grams or more if you were operating or had actual physical control of a commercial motor vehicle.
- Whether your test was properly administered by a person 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 functionally operable and in good working order.
Within five calendar days of your hearing, the hearing officer will forward a decision to the department to either overturn or sustain your driver's license's or permit's suspension or disqualification. You should keep in mind though that just requesting a hearing will not lift the suspension or disqualification of your driver's license or permit. However, if you requested the hearing in a timely manner, i.e. within thirty days from the date of notice and the hearing is not held before the expiration of your temporary permit and the delay in the hearing is not because of an avoidable mistake on your part, then the suspension or disqualification of your license will be lifted until a hearing is held and the hearing officer's decision regarding your case has been made.
If you are absolved of the violation for which you were arrested under Georgia's Code § 40-6-391 or if the charge against you is dismissed other than by your conviction or plea of nolo contendere (a plea whereby you accept conviction as though a guilty plea has been entered but do not admit to guilt), then the suspension or disqualification will be terminated and deleted from your record. Furthermore, your driver's license restoration fee will be promptly returned to you by the department of the licensee. However, if you accepted a plea of nolo contendere, then this shall be entered on your driver's license record and will be considered and counted as a conviction for purposes of any future violations of Georgia's Code § 40-6-391.
Right to Judicial Review
If your driver license's or permit's suspension is sustained after such a hearing, you have the right to file for judicial review of the department's final decision according to the “Georgia Administrative Procedure Act.” But keep in mind though, while such an appeal is pending, the department's order will not be lifted.
Rights of drivers with out of state driver's licenses.
If you have an out of state license the above language will likely not apply to you unless your privilege of driving a motor vehicle on Georgia's highways is subject to suspension or revocation as required by law for the violation. (Navigate to the section titled "Out of State Residents Getting an Atlanta DUI" to make this determination.)
If this is not the case then all sections up to this point do not apply to you, instead according to Georgia's Code § 40-5-51, your rights include the following:
- If you have a record of conviction in Georgia of any offense, you have the right to have a certified copy of your record of conviction to be forwarded by Georgia's department to the motor vehicle administrator in the state where you are a resident.
- If your operating privilege is suspended or revoked in Georgia, you have the right to have Georgia's department forward a certified copy of the record of such action to the motor vehicle administrator in the state where you are a resident.
Georgia Public Safety officials are without authority to absolutely suspend your driver's license issued in another state. See Deckard v. State; see also State v. Pierce. The State of Georgia cannot control or know for certain what other states such as your home state will do if and/or when you fail to submit to a Georgia breath test.
See State v. Coleman.