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Your Rights During An Atlanta DUI Stops and Beyond

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

Even though, by driving on Georgia's highways you implicitly consent to chemical testing requested by a police officer to determine the amount of alcohol present in your body, before any such test results can be admitted as evidence against you, the state must show that it adequately advised you of your rights under the Implied Consent Statute of Georgia. (See Carthon v. State, 248 Ga.App. 738, 740(1) (2001)). At the time of the law enforcement officer's request for a chemical test, he/she should have read to you the appropriate implied consent notice similar to 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 such a notice was read to you by the officer in order to advise you about the administration of chemical testing, according to Georgia law you are assumed to have been properly advised of your rights and the results of your chemical test or your refusal to submit to such a test may be admitted into evidence against you. The notice read to you need not have been read in exactly the same language as the notice posted above but the meaning of the notice should remained unchanged and it should have been read to you in its entirety.

Right to a Notice of Intention to Suspend or Disqualify the License

If you refuse to submit to the test requested by the officer, you have the right to receive a notice of suspension or disqualification of your license which should be personally served by the officer either at the time of your refusal to submit to the test that was requested by him/her or when your test results indicate (if at all) that your license's suspension or disqualification is required as per Georgia's statutory laws (Ga. Code Ann. § 40-5-67.1). If your license indeed requires to be suspended or disqualified, the officer will take possession of your driver's license or permit and will issue a 30 day temporary permit to you. The officer then has ten 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 the officer's report. However, if the officer fails to transmit his report within ten calendar days, the department can still utilize this report when it is provided at a later time, to suspend or disqualify your driver's license or permit.

If the officer issues a 180 day permit to you, the section above does not apply to you.

If your arresting officer fails to give you a notice of suspension, you are still entitled to it and it may be provided to you in an alternate way by the department itself. When the department receives your arresting officer's report, it will suspend your driver's license, permit, or nonresident operating privileges or disqualify you from operating motor vehicles and will send you notice of this by regular mail at your last known address. This notice will serve to inform you of the reason(s) for the suspension or disqualification of your driver's license or permit, the effective date of your suspension or disqualification, and your right to review. Three days after such a notice is mailed to you, it will automatically be presumed to have been received by you.

Right to a Hearing

In order to have your case heard, you should send a $150.00 filing fee together with a written request to the department for a hearing within ten business days from the date of personal notice or receipt of such notice. You should send your materials by certified mail or statutory overnight delivery, requesting return receipt. Make sure you do this within ten business days, because if you fail to do so, then your right to a hearing will automatically be waived.

The department will hold this 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, it will be recorded, and it will be limited to 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 Ga. Code Ann. § 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 who stopped you informed you of your implied consent rights at the time when he/she made a request for the test(s) and advised you of the consequences of submitting or refusing this request.
  • Whether you actually refused the tests requested by the officer or whether the tests were administered and the results indicated an alcohol concentration of 0.02 grams or more if you are under the age of 21, an alcohol concentration of 0.08 grams or more if you are over 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 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 its components prescribed by its manufacturer properly attached and in good working order.

Within five calendar days of your hearing, the hearing officer will forward a decision to the department to either sustain your driver's license's or permit's suspension or disqualification or to return it to you. However, just requesting a hearing will not not guarantee the lifting of your driver license's suspension or disqualification. The issues described above will be used in making this determination instead. Nonetheless, if you requested the hearing within ten business days from the date of notice and the hearing is not held for you before the expiration of your temporary permit issued by the officer and the delay in the hearing is not because of an avoidable mistake made by you, then the suspension or disqualification of your license will be lifted until such time as the hearing is held and the hearing officer's decision regarding your case has been made.

If the charge against you for this matter is dismissed under Ga. Code Ann. § 40-6-391 other than by your conviction or plea of nolo contendere (a plea in which you accept conviction as though a guilty plea has been entered but do not actually admit to being guilty), then your driver license's or permit's suspension or disqualification will be ended immediately and it will be deleted from your record. Additionally, 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 Ga. Code Ann. § 40-6-391.

Right to Judicial Review

If your suspension is sustained after such a hearing, you have the right to file for judicial review of the department's final decision as per the “Georgia Administrative Procedure Act.” But the department's order cannot be lifted while such an appeal is pending.

Rights of drivers with out of state driver's licenses.

If you have an out of state license the above language will 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 Ga. Code Ann. § 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 this suspension or revocation 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.

Contact Us

Our line is answered 24 hours a day. If you or a loved one have been arrested for DUI, give us a call. If have already started trying to handle the DUI case on your own, or if you have just been arrested a few hours ago and are facing arraignment at 8:00am tomorrow morning, we can begin implementing your legal defense strategy. Call Us: (678) 870-5711

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