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ALS (1205) PROCEEDINGS/IMPLIED CONSENT RULE:
HEARING vs. IGNITION INTERLOCK

For DUI arrests made on or after July 1, 2017, a person whose license is subject to and administrative suspension for a DUI arrest (refusal or breath test case) will now have a choice to how to seek to protect your right to drive, when facing an administrative license suspension for a violation of the Georgia implied consent notice.

Option One: Appeal

If you are arrested for driving under the influence and the officer issues the 1205 form, you will now have a 45 (not 30) days on a temporary driving permit pursuant to O.C.G.A. Section 40-5-67, but you now have 30 calendar days (not 10 business days) to opt for one of two methods to avoid an administrative license suspension hearing. One option is the same as under prior law, which is to seek a hearing under O.C.G.A. section 40-5-67.1. There is still a $150.00 filing fee to request the administrative license suspension hearing. The issues addressed in this hearing are as follows:

a) Whether the arresting officer had reasonable grounds to believe that you were driving or in actual physical control of a moving vehicle while under the influence of alcohol and were lawfully placed under arrest for DUI;

b) Whether at the time of the request for the test or tests, the officer informed you of your implied consents rights and the consequence of submitting or fusing to submit to such test;

c) Whether you refused the test, or if a test or tests were administered and the results indicated an alcohol concentration that met or exceeded the applicable "per se" limits of 0.08 grams or more for drivers age 21 and older, 0.02 for drivers under the age of 21, or 0.04 for operators of commercial vehicles; and,

d) 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 of a test conducted by the Division of Forensic Sciences.

If you request an appeal hearing with a 30-day letter or in person at a Georgia DDS facility, you will have waived your right to an Ignition Interlock Device Limited Permit. See Below.

The Georgia Office of State Administrative Hearings presides over Georgia administrative agencies. One of these administrative agencies is the Georgia Department of Driver's Services. This is the agency that issues driver's licenses in the State of Georgia. This is a completely separate court from the court where your criminal case will proceed.

Gavel

Once you have properly requested for ALS hearing you generally will receive notice of that hearing about one month from the date you sent in your request. These hearings can be very important to your driver's license and your criminal case. The burden of proof at these hearings can be easy for the officer to meet. The officer is required to show that he/she had reasonable grounds to believe that you were operating a motor vehicle while under the influence of alcohol or drugs to the extent that you were less safe to drive. The officer does not have to prove you guilty beyond a reasonable doubt to win this hearing as would be required in the prosecution of your criminal case. Your privileges or ability to drive anywhere in the State of Georgia is at stake at this hearing.

Option Two:

The Ignition Interlock Device Limited Permit Option (IIDLP), authorized by O.C.G.A. Section 40-5-64.1

Under this new option, you have to apply within 30 days of receiving notice of a license suspension (the DDS 1205 Form) for an Ignition Interlock Limited Device Permit. The filing fee for this permit is $25.00. You also must surrender your license, and must execute an affidavit attesting that the administrative license suspension hearing afforded under Section 40-5-67.1 is waived. The interlock permit is good for one year. At the end of that year, the cost to renew the permit is $5.00 and the renewed limited permit is valid for only two months. The limited permit may be renewed only one time after such person is eligible for reinstatement. This 60-day extension was to cover any oversight of a person to reinstate or due to lack of funds to reinstate.

On a per se DUI case, you must have the Ignition Interlock installed within 10 days of issuance of the permit and must have the device on your car for a period not less than 120 days. Additionally, you may not drive any motor vehicle that does not have the Ignition Interlock Device on it. If you win the per se, get the case reduced or dismissed prior to 120 days, the permit is revoked and your license shall be reinstated without a fee. Furthermore, the driver's license suspension is terminated and the suspension is deleted from your driving history.

On a refusal case, you also must have the Ignition Interlock Device installed within 10 days of the issuance of the interlock limited permit (IIDLP) and again you cannot drive any motor vehicle that doesn't have the Ignition Interlock Device on it. The big difference is that you must install and maintain the IDD for a period of 12 months, and if you win the refusal case, get it reduced or dismissed prior to the 12-month period you must have the IDD on your vehicle for the balance of the 12 months.

The IIDLP will be revoked if you are convicted of violating any state law relating to the movement of a motor vehicle; driving a motor vehicle in violation of an ignition interlock limited permit; conditions (new misdemeanor offense) and tampering with the ignition interlock device. The notification of revocation will be by regular mail to your last known address. A first revocation will prevent you from being eligible to obtain a driver's license for six months from the date of surrender of your license, and the second revocation suspension period is a lifetime suspension; however, you will be eligible for reinstatement of your driver's license after two years. If the IIDLP is revoked or if the Department of Driver Services refuses to issue you a limited permit, you can apply for a hearing before the Office of State Administrative Hearings if filed within 30 days.

Under the IID permit, a person can drive for the following reasons:

1. To and from work including the normal duties of his or her occupation; 2. Receiving medical care; 3. Attending college/school; 4. Attending alcohol or drug treatment; 5. Attending court-ordered driver education; 6. Attending court or court- ordered activity; 7. Performing community service; 8. Transporting a family member to work, school or medical care; and 9. Monthly monitoring visits with the IID provider.

A person cannot obtain the Ignition Interlock Device Limited Permit if they are under the age of 21; have a DUI conviction on their record with the past 5 years as measured from the date of arrest; are not currently licensed to operate a motor vehicle in the State of Georgia or hold a commercial driver's license (available with temporary downgrade of CDL to non-commercial privileges). The IIDLP is subject to an administrative license suspension for involvement in a traffic accident resulting in injuries or fatalities even before conviction. The IID driver need not have alcohol or drugs involved either. Further, the IIDLP is subject to suspension, revocation, or cancellation for any loss of driving privileges "action" as contemplated in O.C.G.A. Section 40-5-64.1 (e.g., nonpayment of child support).

The new law allowing IIDLP also provides that if the IIDLP is revoked for any reason, the first-time revocation triggers a 6-month loss of all driving privileges after surrender of the permit, even if this occurs in the 11th month of having the IIDLP. Any second offense of an IIDLP triggers a 2-year hard suspension. So, having the IIDLP is not without risks and drawbacks.

Under O.C.G.A. Section 40-5-76, the judge in an accountability court may issue the IIDLP in accordance with O.C.G.A. Section 40-5-64.1 if the defendant's driver's license is supposed to be suspended pursuant to O.C.G.A. Section 40-5-75. This special power of an accountability court will sometimes justify entering the DUI Court Program.

If you elect for the IIDLP, you will receive credit towards the period of suspension if convicted for driving under the influence pursuant to O.C.G.A. Section 40-5-67.2(b); however, both a reinstatement fee to remove the Ignition Interlock Device Limited Permit and license fee will apply. For reinstatement of your license after the IIDLP, you must successfully complete the terms of the monitoring and $100.00 ($90.00 by mail) as an interlock permit restriction removal fee.

The administrative license suspension period/reinstatement remains the same as before; however, under O.C.G.A. Section 40-5-64(e), the limited driving permit may be renewed only one time after the person is eligible to reinstate his or her driver's license. The new change in the law prevents a client under the age of 21 from continually renewing their permit so that they can still drive and get credit for any suspension if they are subsequently convicted for driving under the influence.