If you have an out of state driver's license first read the section titled "Rights of drivers with out of state driver's licenses." If you have a Georgia driver's license read all sections except the section for out of state driver's licenses.
Right to Have Your Implied Consent Notice Read to You
Anyone who drives on Georgia's highways is deemed to have implicitly consented to chemical testing of a bodily substance to determine the presence of alcohol in the person. However, before any test results may be admitted as evidence 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)). At the time that a chemical test or tests were requested, the arresting officer should have read the appropriate implied consent notice 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 such a notice was used by a law enforcement officer to advise you of your rights regarding the administration of chemical testing, it will be deemed that you were properly advised of your rights under Georgia Law, and the results of any chemical test, or the refusal to submit to a test, may be admitted into evidence against you. Such a notice should have been read in its entirety to you, but it need not have been read in exactly the same language so long as the substance of the notice remained unchanged.
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 personally served by the law enforcement officer if you refuse the test requested by the law enforcement officer at the time of your refusal or at the time when such a test indicates that suspension or disqualification of your license will be required as per Ga. Code Ann. § 40-5-67.1. At this point, the law enforcement officer will take possession of your driver's license or permit and will issue a 30 day temporary permit. 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 a report. However, if the officer fails to transmit the report within ten calendar days, the report can still be utilized at the time that it is supplied to the department to suspend or disqualify your driver's license or permit.
*Note - If you are issued a 180 day permit the above paragraph does not apply to you.
If your arresting officer fails to give you a notice of suspension, it may be provided to you in an alternate form 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 will send you such notice by regular mail at your last known address. The notice will serve to 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 shall be deemed as received by you three days after it is mailed.
Right to a Hearing
If you want to exercise your right to a hearing, you should remit a $150.00 filing fee together with a request, in writing, to the department for a hearing within thirty days from the date of personal notice or receipt of such notice sent by certified mail or statutory overnight delivery, return receipt requested. If you fail to do this within thirty days, then your right to a hearing shall have been deemed waived.
The department will hold this hearing as provided in the “Georgia Administrative Procedure Act.” This hearing will be held 30 days after your written request has been received by the department and will be recorded. The scope of this hearing 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 motor 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 law enforcement officer informed you of your implied consent rights at the time of the request for the test(s) as well as 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 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 electronic and operating components prescribed by its manufacturer properly attached and in good working order.
Within five calendar days of the hearing, the hearing officer will forward a decision to the department to rescind or sustain your driver's license's or permit's suspension or disqualification. Merely requesting a hearing will not lift the suspension or disqualification of your driver's license or permit. However, if you requested the hearing within thirty days from the date of notice and the hearing is not held before the expiration of your temporary permit issued by the law enforcement officer and the delay in the hearing is not due in whole or in part 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 you are acquitted of the violation for which you were arrested under Ga. Code Ann. § 40-6-391 or if such a charge is dismissed other than by your conviction or plea of nolo contendere, i.e., a plea whereby you accept conviction as though a guilty plea has been entered but do not admit guilt, then the suspension or disqualification will be terminated and will be deleted from your record. Your driver's license restoration fee will be expeditiously 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 provided in the “Georgia Administrative Procedure Act.” However, 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 not apply to you unless the privilege of driving a motor vehicle on Georgia's highways provided to you 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 you may ignore all sections up to this point because your rights will include the following as per Ga. Code Ann. § 40-5-51:
- 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.