Sunday, September 4, 2011

Administrative License Suspensions in Georgia


One of the biggest problems and most misunderstood consequences involving some DUI arrests is the administrative suspension of the defendant’s license.  An administrative license suspension (ALS) is a process whereby the State can suspend a person’s license after a DUI arrest even though the person has plead not guilty or has not been to court on the case.

This typically happens in two different scenarios.  The first is when the driver refuses the state’s administered test.  The state’s administered test is a test of your blood, breath, or urine requested by the officer after he has read the implied consent warning to the driver.  Most of the time this is a request to have the driver give a breath sample into the Intoxilizer 5000, which is the “breath machine” at the police station.  This should not be confused with the portable breath test that is sometimes administered at the scene of the traffic stop.  Portable breath tests are completely voluntary.

If the driver refuses to give a sample to the officer after the implied consent warning is read, then the officer will likely consider that a refusal.  If the officer believes that the driver has refused the state’s administered test, then he can file a 1205 form with the State which will automatically suspend the driver’s license after 10 business days.

However, the driver will be given a copy of this form which will look like a yellow piece of paper a little larger than the traffic tickets given to the driver.  If the driver is given a copy of the 1205 form, then immediate action should be taken to save the driver’s license.  If the driver requests a hearing on the license suspension within 10 business days of the arrest, a hearing will be scheduled before an administrative law judge and the suspension of the driver’s license will be stayed under most circumstances until a disposition at the hearing.  This allows the defendant to drive until the lawyer can determine the merits of the case and gives the lawyer and defendant time to make informed decisions.

The other scenario where driver’s licenses are administratively suspended is when the driver consents to the state’s administered test but blows over 0.08.  (0.02 for driver’s under 21).  This situation is less common because many officers choose not to file a 1205 form under these circumstances, particularly when the driver is not excessively over the limit.  The procedure for requesting a hearing is the same as a refusal.

At the ALS hearing, the judge will call the case and see if the defendant and the officer are present in court.  If the defendant does not show, then the appeal is dismissed and the license is suspended.  If the officer does not show, then the ALS case is dismissed and the license will remain valid.  If both parties show then one of two things will happen.

First, the attorney may be able to negotiate a plea with the officer in the case in exchange for him dismissing the ALS.  This usually only happens when the attorney feels that the legal issues surrounding the arrest are not in the client’s favor.

The other alternative is to have a full hearing on the ALS.  Here, the judge considers the legal issues brought to the attention of the court and determines whether the officer followed procedures during the stop, detention, and arrest of the defendant in accordance with state law.  Having a hearing is risky if the officer followed correct protocol or if you are facing a less than desirable judge.  An adverse ruling at an ALS hearing will result in the suspension of the driver’s license for a period of time.

Drivers who are arrested for DUI need to pay close attention to the documents they receive from the law enforcement officer.  Recognizing and acting upon the “larger yellow sheet” can have a huge impact on the defendant’s privilege to drive during the pendency of the case.  

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