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Answers to Your Questions About
Georgia DUI and Drunk Driving Laws: If You Are Arrested for DUI, Should You Take the Intoxilyzer ® test? Find Out Below. |
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By J. Michael Mullis, Attorney at Law,
The DUI Guy Georgia DUI Lawyer 1-877- 638-4489 (Toll-Free 24 Hours) Atlanta, Athens, Savannah and Valdosta |
Mike Mullis |
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I have included some of the frequently asked questions I encounter when talking to people about Georgia DUI cases. The answers to the questions are not legal advice, and should not be taken as such. If you have been charged with DUI or other serious alcohol related traffic offense in Georgia, you should contact a DUI defense attorney immediately to discuss your case. Give me the facts of your case. Click on one of the following links to jump to your question.
A DUI is a misdemeanor. Once you are arrested for DUI, the prosecutor has two years in which to file charges with the Clerk of Court. If charges are not filed with the Clerk in a timely manner, you cannot be prosecuted. If the prosecutor files charges in a timely manner, unless you file a speedy trial demand in a timely manner, there is no limit on the time the prosecutor has to bring the case to trial. Once you properly filed a speedy trial demand, the prosecutor must try your case by the end of the term of court following the term during which you filed your demand. Keep in mind that other nuances to speedy trial demand exist. If this is a concern, ask your attorney about it. How long does a DUI stay on my record?
In Georgia a DUI stays on your record for life. Most other states have
similar laws. The effects can result in possible denial of jobs or
restrictions on credit if it goes on your credit report. In addition a
conviction can cause an increase or cancellation on your car insurance. For all cases arising on or after July 1, 1997, a "nolo contendere" (no contest) plea is of little or no use. For DUI cases made on or after July 1, 1997, the primary benefit of a nolo plea would be to limit use of the plea in a civil suit (for example, if an accident had occurred). Furthermore, after July 1,1997, no one under the age 21 can use the "nolo" plea. Moreover, any person whose case was made before July 1, 1997 and whose blood alcohol level was 0.15 or more is ineligible to use a "nolo" plea. Most judges also will not accept a "nolo" plea for any
case in which the driver refused to be tested for blood alcohol level. The
judge does not have to accept a "nolo" plea. If a judge does
accept it, you will still have stiff fines, perform community service and
serve some jail time just as if you entered a guilty plea.
No. Ordinarily, if First Offender Probation is completed successfully,
sentencing under the First Offender Act results in no conviction .
However, First Offender treatment is statutorily prohibited for DUI
cases in Georgia. This is one of the most common questions I am asked. Once you are arrested for DUI, the officer should read the Implied Consent Notice to you. The current card is bright orange (the old one was dark pink). At the end of the Notice, he will ask you to take a test of you blood, breath, urine, or any combination of the three. In the following situation, the official state test probably should be taken: Someone age 21 or over who is arrested for a first DUI in a five-year period where there are no aggravating circumstances such as serious injury or death, should probably take the state test. In the following situations, the official state test probably should not be taken: Anyone who is arrested for DUI where aggravating circumstances exist (serious injury or death), should be aware that the penalty upon conviction could be as much as 15 years in prison for causing a death while driving intoxicated. An administrative license suspension for 1-5 years is not the major concern in this situation. I can see no reason why someone in those circumstances should take the official state test. Anyone who is under age 21 only has to register .02 to have an unlawful blood alcohol level. This is extremely low. A prosecutor would have a difficult time obtaining a conviction for someone with such a low blood alcohol level if he did not have any test results. On the other hand if a minor had an alcohol level of .08 or higher on a first time DUI arrest, a conviction at trial would result in a one year suspension with no limited driving permit - the same as an administrative suspension for refusing to take the test. Therefore, I see no reason why anyone under 21 should hand the prosecutor an easy conviction by taking the official state test. I am still evaluating whether or not anyone age 21 or over who is arrested for a second or third DUI in a five-year period should take the test. I will post my thoughts when my evaluation is complete. Important! For those of you that took the state test and also requested your own independent test of your blood, I have added a separate page regarding the procedures you should take regarding your blood sample. You need to go here to read about those procedures. If I had a DUI in another state, will it show up in Georgia?
Yes, DUI/DWI convictions from other states will show up in a computer
search conducted by the prosecutor. However, convictions from other states
do not show up on every occasion. When we go into court we do not
"volunteer" information about prior convictions. However, we
must know your full record and be prepared to address this issue if the
prosecutor presents it to the court. How will this affect my out of state license? Georgia cannot suspend an out of state license, only your home state can
suspend your license. Georgia can only suspend your privilege to drive in
this state. However, Georgia is required by law to notify your home state
of any conviction of any traffic offense in Georgia. Georgia law permits an officer to confiscate the license of any motorist
arrested for DUI. In order not to run afoul of perjury laws, do not just
apply for a new license (especially in Georgia) because you can create
even more problems for yourself. At your consultation, ask Mr. Mullis
about how and when you may have your license returned. In Georgia, if you either refused to submit to the official state test, or if you submitted and have a breathalyzer (Intoxilyzer 5000) result of 0.08 or higher (age 21 or more), .04 or higher (if operating a commercial vehicle), or .02 or higher (if under age 21), the state will attempt to suspend your license or privilege to drive for one to five years. This attempt to take away your right to drive will occur PRIOR to any trial (in most cases) and will be automatically entered against you unless you file an "appeal" letter within 10 business days after the date of arrest. Filing an "appeal" permits a postponement and possibly prevents any suspension from occurring. At the least, a "stay" of any proposed suspension will occur until you have had a chance to have a hearing with a Judge from the Office of State Administrative Hearings. This is an informal hearing.
There will not be a jury and no decision will be given at the hearing.
However, you will be sent a decision in the mail within a few days after
the hearing. The hearing is needed to determine if you will be able to
retain your driving privileges until the end of your DUI case or if you
will lose the right to drive in Georgia prior to your trial. Ask Mr.
Mullis about filing your appeal letter for you. In most instances, no. Miranda rights attach only after you are placed under arrest. Any incriminating statements you make while being interrogated prior to being placed under arrest are admissible in court. However, if the officer asks you any questions after you are arrested but before you are advised of your Miranda Rights, any statement you make then would be suppressed at trial. If the prosecutor's case rests solely on this suppressed statement, then your case will most likely be dismissed. However, in most instances, the prosecutor relies on evidence other than your incriminating statement. Sometimes it is difficult to know when you are under
arrest. Under Georgia law, if a reasonable person would believe he/she
were under arrest, then an arrest has occurred. Although a judge
ultimately makes this determination, advising your attorney of all facts
surrounding your case can assist him in advising you. Ask Mr. Mullis to
explain this in more detail at your free consultation. On or after May 1, 2000 the ignition interlock device is required for a second DUI within a five year period. Of course, a judge can make an ignition interlock device a condition of probation for any DUI or serious traffic offense. The cost of the ignition interlock device is borne by the defendant. Georgia treats teenage drunk driving differently. If you under age 21 when convicted of DUI, you will not qualify for any limited driving permit. Click here to read the DUI GUY'S plain English explanation of Georgia's DUI laws including ignition interlock and underage DUI laws. .
Two common scenarios exist. In the first, your out-of-state license is suspended/revoked and you have no physical license. The Georgia Department of Public Safety will require that you get a letter of clearance from your previous home state. That, of course, necessitates following the correct procedures to get you out-of-state license reinstated so you can get a letter of clearance. In the second scenario, you might be in possession of your out-of-state license, which could be suspended without your knowledge (an example would be a suspension for failure to appear in court and pay a fine). In that event, you are issued a provisional Georgia driver's license. If the Georgia Department of Public Safety learns of your prior suspension, your Georgia driving privileges will be withdrawn until you take care of the out-of-state suspension. In
some states, your driving privileges can be revoked for life. If you are
unfortunate enough to be in that situation, you will not be able to get a
Georgia driver's license. Someone convicted of three serious driving offenses within a five year period has attained the lofty status of being an Habitual Violator. The most common of these serious driving offenses are DUI, Hit and Run, and Attempt to Elude. Upon conviction of the third serious driving offense within a five year period, your driver's license will be suspended for five years. No limited permit or probationary license is available for the first two years. However, after two years, if you have completed DUI School and submitted to alcohol/drug evaluation and counseling, you can get an ignition interlock driving permit for six months. After that, you can get a probationary license for the remaining two and a half years. After five years, upon payment of a reinstatement fee, you can have your regular driving privileges restored. An Habitual Violator who operates a motor vehicle without the appropriate limited permit or probationary license commits a felony for which he/she can be sentenced up to five years in prison and ordered to pay a substantial fine. IMPORTANT! Please note that at the time of your conviction of the third serious traffic offense within a five year period, you must either turn in your driver's license (unless your license was confiscated at the time of your arrest) or you must submit a "lost license affidavit." Otherwise, you will not receive credit for any of the time that you are an habitual violator. I have seen extreme cases where someone attempted to have a license restored after five years only to find that, because they had not turned in their license or filed a lost license affidavit at the time of conviction, they had to wait another five years to have their full privileges restored.
For more detailed information
on Habitual Violator, check out our sister site,
Georgia Defenders. Every person can represent himself or herself in court. Because DUI is
such a critical matter, however, it is not generally a wise choice to go
to court unrepresented. Your right to drive, your freedom and your future
employment options may hang in the balance. The choice is yours. We advise
making a free appointment to learn more about this. Why should I hire the DUI GUY? Mr. Mullis is a trial attorney. He will not plea out your case unless both you and he feel it is in your best interest. Additionally, the DUI GUY is a former partner with the Atlanta law firm of Head, Mullis, Thomas & Webb, the largest assemblage of DUI attorneys in the country. He has attended numerous advanced training courses on police procedures and trial practice, which means that he can use his skills to challenge every aspect of a DUI arrest. In addition, Mr. Mullis is a founding member of the National College for DUI Defense conducted at Harvard Law School and has been a regular speaker to both trial attorneys and judges. His last stint as a speaker was April 2001 at a seminar sponsored by the Georgia Association of Criminal Defense Lawyers where he lectured on recent changes in Georgia DUI law. Mr. Mullis has specialized in the practice of DUI defense since 1994 and has personally handled and consulted on hundreds of DUI cases. Click Here for more detailed information on Mr. Mullis. When can I speak to an attorney? Click Here to fill out the online Quick Intake From. Once you have submitted that form, you will speak to an attorney within 24 hours.
We will
also provide you with a DUI information
pack that has several items including a questionnaire and a
Drivers
Rights Card prepared by the DUI GUY. Once
you complete and return the questionnaire Mr. Mullis will
personally do a complete assessment of your case and will answer all your
questions at your first consultation. You will be told the favorable and unfavorable aspects of
your case and how the DUI GUY would handle your case. This will allow you to
evaluate your own case so that you can make an informed decision about how
you want to proceed.
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