O.C.G.A. § 40-5-121 (2019)

Annotations

Cross references. Provisions regarding operation of motor vehicle during suspension of license, registration, or operating privilege, § 40-9-8. Editor’s notes. Ga. L. 1999, p. 391, § 2, not codified by the General Assembly, provides: “This Act

shall be known and may be cited as ‘Heidi’s Law.’” Ga. L. 2015, p. 60, § 6-1/SB 100, not codified by the General Assembly, provides that: “Section 4-9 of Part IV of this Act shall become effective on January 1, 2016, and all other parts of this Act shall become effective on July 1, 2015, and shall apply to offenses which occur on or after that date.” Law reviews. For note on 1999 amendment to this Code section, see 16 Georgia St. U.L. Rev. 200 (1999). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 139 (2016).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1937, p. 322 are included in the annotations for this Code section. There is no element of criminal intent in a violation of O.C.G.A. § 40-5-121. King v. State, 226 Ga. App. 576, 486 S.E.2d 904, 1997 Ga. App. LEXIS 631 (1997), rev’d on other grounds, 270 Ga. 367, 509 S.E.2d 32, 1998 Ga. LEXIS 1199 (1998), vacated, 236 Ga. App. 54, 514 S.E.2d 484, 1999 Ga. App. LEXIS 36 (1999). License suspension interferes with liberty interest. - Defendant’s challenge to the defendant’s misdemeanor traffic convictions by a motion to vacate was not an appropriate remedy and the defendant’s motion could not be construed as a motion for arrest of judgment or other alternative motion because the motion was untimely under O.C.G.A. § 40-13-33(a); the 180-day limit applied to any challenge that could have been brought by habeas corpus, and suspension of a driver’s license interfered with a liberty interest. Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775, 2017 Ga. App. LEXIS 354 (2017), cert. denied, No. S18C0239, 2018 Ga. LEXIS 236 (Ga. Apr. 16, 2018). Habitual violator subject to different sentencing. - Because the equal protection clause of the Fourteenth

Amendment does not deny a state the power to treat different classes of people in different ways, the General Assembly could have reasonably concluded that habitual violators are more dangerous than those who have had their licenses suspended or revoked. Thus, a defendant was not denied equal protection when the defendant was sentenced as a habitual violator under O.C.G.A. § 40-5-58(c) rather than being sentenced under O.C.G.A. § 40-5-121. Gaines v. State, 260 Ga. 267, 392 S.E.2d 524, 1990 Ga. LEXIS 247 (1990). Notice to defendant required. - One of the elements of driving while one’s license is suspended is notice to the defendant of action in suspending the license, and absent proof by the state of actual or legal notice to the defendant a conviction for that offense cannot be sustained. Sumner v. State, 184 Ga. App. 374, 361 S.E.2d 536, 1987 Ga. App. LEXIS 2259 (1987); Farmer v. State, 222 Ga. App. 591, 474 S.E.2d 760, 1996 Ga. App. LEXIS 918 (1996). Actual or legal notice to the defendant of the suspension of the defendant’s license is an element of the offense of driving while defendant’s license is suspended. State v. Brooks, 194 Ga. App. 465, 390 S.E.2d 673, 1990 Ga. App. LEXIS 112 (1990). Notice contemplated by O.C.G.A. § 40-5-60 applies to all suspensions

provided for in O.C.G.A. § 40-5-1 et seq., and suspensions under O.C.G.A. § 40-5-57 fall within this class and are not excepted from the general rule. Thus, without proof by the state of actual or legal notice to a defendant of the defendant’s license suspension, a conviction under O.C.G.A. § 40-5-121 cannot be sustained. State v. Fuller, 289 Ga. App. 283, 656 S.E.2d 902, 2008 Ga. App. LEXIS 71 (2008), superseded by statute as stated in Johnson v. State, 297 Ga. App. 254, 676 S.E.2d 884, 2009 Ga. App. LEXIS 449 (2009). Because there was no evidence that a defendant received notice of the defendant’s license suspension for excessive violation points under O.C.G.A. § 40-5-57, a conviction of driving with a suspended license in violation of O.C.G.A. § 40-5-121 was properly reversed. Under O.C.G.A. § 40-5-60, notice of a suspension was required for a conviction, and O.C.G.A. § 40-5-57 did not provide for notice by operation of law. State v. Fuller, 289 Ga. App. 283, 656 S.E.2d 902, 2008 Ga. App. LEXIS 71 (2008), superseded by statute as stated in Johnson v. State, 297 Ga. App. 254, 676 S.E.2d 884, 2009 Ga. App. LEXIS 449 (2009). Actual or constructive notice of suspension not within officer’s knowledge. - Though central dispatch advised an officer that the defendant had not been served with notice of suspension of the defendant’s license, the officer had probable cause to arrest the defendant for driving under suspension (O.C.G.A. § 40-5-121) as the officer had no way of knowing whether the defendant had obtained actual or constructive notice of the suspension by other means. Thus, drugs found in a search of the defendant’s car incident to the arrest were admissible; the trial court’s ultimate conclusion that the defendant did not have notice of the suspension did not “retroactively vitiate” the probable cause supporting the arrest. Johnson v. State, 297 Ga. App. 254, 676 S.E.2d 884, 2009 Ga. App. LEXIS 449 (2009). Service date. - Defendant’s conviction for driving on a suspended license was reversed since the defendant was never given a uniform citation listing

the service date, in contravention of the clear mandate of O.C.G.A. § 40-5-121, nor a copy of the arrest warrant. Defendant’s license had been suspended under O.C.G.A. § 40-5-56 for failing to appear at a hearing for a traffic offense. Mobley v. State, 253 Ga. App. 57, 557 S.E.2d 488, 2001 Ga. App. LEXIS 1409 (2001). Notice sufficient evidence to convict. - Official notification of the suspension of one’s license to drive was sufficient evidence to convict the driver of a violation of former Code 1933, § 68B-402 (see now O.C.G.A. § 40-5-121). Furman v. State, 144 Ga. App. 824, 242 S.E.2d 746, 1978 Ga. App. LEXIS 1801 (1978). Trial court did not err in denying the defendant’s motion for a directed verdict of acquittal under O.C.G.A. § 17-9-1 after a jury found the defendant guilty of driving on a suspended license in violation of O.C.G.A. § 40-5-121(a) because there was some evidence that the defendant was served with notice of suspension pursuant to O.C.G.A. § 40-5-60; the state introduced the defendant’s driver’s license history report, which showed that the defendant had been served with the notice of the license suspension by a police officer, and the officer testified that the officer served the defendant with the notice. Sledge v. State, 312 Ga. App. 97, 717 S.E.2d 682, 2011 Ga. App. LEXIS 903 (2011). Hearsay evidence not sufficient for conviction. - When the only evidence that the defendant was driving without a license was hearsay from one of the police officers, not covered by one of the exceptions and not otherwise admissible as necessary and demonstrably trustworthy, reversal of the conviction for driving without a license was required. Day v. State, 235 Ga. App. 771, 510 S.E.2d 579, 1998 Ga. App. LEXIS 1610 (1998). Corroboration not required for defendant’s admission to driving on suspended license. - Defendant’s statement to an officer that the defendant’s license was suspended was an admission and not a confession requiring corroboration under former O.C.G.A. § 24-3-53 (see now O.C.G.A. § 24-8-823) because the defendant’s statement did not

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include an admission to driving on a highway of the state, which was an essential element of the offense of driving with a suspended license under O.C.G.A. § 40-5-121(a). Griffin v. State, 302 Ga. App. 807, 692 S.E.2d 7, 2010 Ga. App. LEXIS 142 (2010), cert. denied, No. S10C1172, 2010 Ga. LEXIS 699 (Ga. Sept. 7, 2010). Technical violations of statute did not render arrest illegal. - Although there may have been technical violations of O.C.G.A. § 40-5-121(b)(1) in an officer’s arrest of a driver for driving with a suspended license, the driver’s statement that the driver’s license was suspended provided the officer with probable cause to arrest, and any violation of § 40-5-121(b)(1) did not render the subsequent search of a van improper. Agnew v. State, 298 Ga. App. 290, 680 S.E.2d 141, 2009 Ga. App. LEXIS 658 (2009). Evidence sufficient for conviction. - See D’Ambrosio v. State, 245 Ga. App. 12, 536 S.E.2d 218, 2000 Ga. App. LEXIS 790 (2000), cert. denied, No. S00C1816, 2000 Ga. LEXIS 802 (Ga. Oct. 20, 2000), cert. denied, 532 U.S. 962, 121 S. Ct. 1496, 149 L. Ed. 2d 381, 2001 U.S. LEXIS 2797 (2001). Evidence that the defendant’s license was suspended at the time the defendant was arrested following a high-speed motor vehicle chase with police was sufficient to support defendant’s conviction for driving with a suspended license. Arnold v. State, 262 Ga. App. 61, 584 S.E.2d 662, 2003 Ga. App. LEXIS 837 (2003). Driving with a suspended license conviction was affirmed after the state proved that the defendant received notice of the defendant’s license suspension by introducing the defendant’s driving record; an officer testified that the officer was certified to run driving histories and that the officer obtained a printout of the defendant’s driving history from an approved computer terminal at the Georgia Department of Public Safety. Fannin v. State, 267 Ga. App. 413, 599 S.E.2d 355, 2004 Ga. App. LEXIS 668 (2004). Defendant’s conviction for improper stopping in violation of O.C.G.A. § 40-6-202 was based on sufficient

evidence as the fact that the vehicle was blocking only one lane of traffic, rather than the entire street, was adequate because the vehicle was not legally parked for purposes of § 40-6-202; further, since the defendant was sitting in the driver’s seat of the car with a suspended license, which the defendant clearly knew about because the defendant had received citations for driving with a suspended license previously, there was sufficient circumstantial evidence to convict the defendant of driving without a valid license in violation of O.C.G.A. § 40-5-121. Marsengill v. State, 275 Ga. App. 840, 622 S.E.2d 58, 2005 Ga. App. LEXIS 1119 (2005). Defendant’s conviction of driving a motor vehicle with a suspended license was supported by sufficient evidence as the defendant could not produce a driver’s license, and the officer’s check on the status of the defendant’s license revealed that the license was suspended. Mayfield v. State, 276 Ga. App. 544, 623 S.E.2d 725, 2005 Ga. App. LEXIS 1310 (2005). Evidence that the defendant’s license was suspended including a written notice given to, signed by, and explained to the defendant, an officer’s observation of the defendant driving after the date of that notice, and the defendant’s admission to the officer, sufficiently established the elements of driving with a suspended license. Wilson v. State, 278 Ga. App. 420, 629 S.E.2d 110, 2006 Ga. App. LEXIS 329 (2006). Admission that the defendant did not have a driver’s license, coupled with the certified copy of the license-suspension notice that was admitted at trial, sufficed to sustain a conviction for driving with a suspended license. Johnson v. State, 279 Ga. App. 98, 630 S.E.2d 612, 2006 Ga. App. LEXIS 458 (2006). Despite a lack of direct evidence to show that the defendant drove the victim’s vehicle, a conviction for driving with a suspended license was upheld as sufficient circumstantial evidence existed that showed the defendant returned the vehicle to the parking lot where the victim left the vehicle running with the keys in the ignition, and the police saw the defendant walking away from the vehicle after

doing so. Wheeler v. State, 281 Ga. App. 158, 635 S.E.2d 415, 2006 Ga. App. LEXIS 1026 (2006). In a case where the defendant was convicted of driving with a suspended license, there was sufficient evidence that the defendant was driving since: the vehicle involved was owned by a person with whom the defendant lived; the defendant had driven the vehicle on other occasions while the defendant’s license was suspended; the vehicle was driven to the defendant’s home by a driver whom an officer believed to be the defendant; and after the vehicle was abandoned at the defendant’s residence, the defendant arrived on the scene wearing clothes similar to those of the driver. Williams v. State, 285 Ga. App. 190, 645 S.E.2d 676, 2007 Ga. App. LEXIS 472 (2007). Although a police car video of a defendant’s traffic stop had poor audio quality resulting in inaudible portions, the defendant’s admissions that the defendant’s license was suspended were admissible as part of the res gestae pursuant to former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803). The defendant could attack the weight and credibility of the recording, but not the recording’s admissibility; thus, the evidence was sufficient to convict the defendant of driving with a suspended license. Steed v. State, 309 Ga. App. 546, 710 S.E.2d 696, 2011 Ga. App. LEXIS 393 (2011), cert. dismissed, No. S12C0138, 2012 Ga. LEXIS 381 (Ga. Apr. 24, 2012). Defendant’s own testimony that the defendant had no license and had knowledge that the defendant’s license was suspended and the officer’s observation of the defendant exiting the driver’s side of the vehicle was sufficient to support the conviction for driving with a suspended license. Daniels v. State, 321 Ga. App. 748, 743 S.E.2d 440, 2013 Ga. App. LEXIS 401 (2013). Evidence was sufficient to convict the defendant of trafficking in methamphetamine, possession of oxycodone and less than one ounce of marijuana, and driving while the defendant’s license was suspended because the defendant knew the defendant’s license to drive was suspended, and because the defendant know-

ingly had both the power and intention to exercise dominion or control over the controlled substances found in the backpack and was in constructive possession of those substances as the defendant was driving the car in which the backpack was located, and the defendant was linked to the backpack by the defendant’s control of the car and evidence that the backpack contained a copy of a fake driver’s license the defendant gave to an officer. Armstrong v. State, 325 Ga. App. 690, 754 S.E.2d 652, 2014 Ga. App. LEXIS 51 (2014). Evidence supported the defendant’s conviction for DUI and driving with a suspended license, O.C.G.A. §§ 40-5-121 and 40-6-391, based on evidence that the homeowners called 911 to report the defendant leaving their home intoxicated, that police observed signs of impairment (odor of alcohol, horizontal gaze nystagmus clues, and positive breath test), and a blood test. Danley v. State, 342 Ga. App. 61, 802 S.E.2d 851, 2017 Ga. App. LEXIS 306 (2017), overruled in part, McClure v. State, 306 Ga. 856, 834 S.E.2d 96, 2019 Ga. LEXIS 643 (2019). There was sufficient evidence to support the defendant’s conviction for driving with a suspended license, including the defendant’s admission that at the time of the incident the defendant’s driver’s license was suspended and that the defendant was driving to the apartment complex to pick up a friend, and evidence that under the conditions of the suspended or limited license, the defendant was only allowed to drive to and from work and in other limited situations, which did not include picking up a friend. Thelusma v. State, 356 Ga. App. 495, 847 S.E.2d 852, 2020 Ga. App. LEXIS 470 (2020). Effect of premature issuance. - Premature issuance of a driver’s license to the defendant was not adequate to show as a matter of law that the defendant’s driving privileges had been properly reinstated, nor did that premature issuance refute the evidence that the defendant drove a motor vehicle on a public highway at a time when the defendant’s privilege to do so was suspended and before having the defendant’s license reinstated when and

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as permitted by statutory procedure. Payne v. State, 209 Ga. App. 780, 434 S.E.2d 543, 1993 Ga. App. LEXIS 985 (1993); Grisson v. State, 237 Ga. App. 559, 515 S.E.2d 857. Sentence of 30 days in jail for a violation of Ga. L. 1937, p. 322 is lawful. Bush v. State, 108 Ga. App. 638, 134 S.E.2d 490, 1963 Ga. App. LEXIS 728 (1963) (decided under Ga. L. 1937, p. 322). Evidence supported finding that defendant had actual notice that defendant’s license was suspended since a police officer had advised defendant, after running a computer check, that the license was suspended. Arnold v. State, 189 Ga. App. 900, 377 S.E.2d 918, 1989 Ga. App. LEXIS 55 (1989). Prosecutorial discretion. - Even if the defendant admitted notice that the defendant had the legal status of a habitual violator, the state was not bound to charge the defendant with a O.C.G.A. § 40-5-58 felony and was not precluded from charging defendant with a O.C.G.A. § 40-5-121 misdemeanor. The decision of whether to prosecute and what charges to file are decisions that rest in the prosecutor’s discretion. Noeske v. State, 181 Ga. App. 778, 353 S.E.2d 635, 1987 Ga. App. LEXIS 1555 (1987). Prosecutor was fully authorized to charge defendant by accusation, and nothing within O.C.G.A. § 40-5-121 governed the prosecutor’s authority to charge the defendant. Allman v. State, 258 Ga. App. 792, 575 S.E.2d 710, 2002 Ga. App. LEXIS 1573 (2002). Habitual violator felony status. - It is a misdemeanor for one to drive while one’s license is suspended or revoked, but if, pursuant to O.C.G.A. § 40-5-58, the license of the driver had been revoked because the driver was a habitual violator, then the action is considered a more serious offense and constitutes a felony. That is the meaning of the exception contained in subsection (a) of O.C.G.A. § 40-5-121. Noeske v. State, 181 Ga. App. 778, 353 S.E.2d 635, 1987 Ga. App. LEXIS 1555 (1987). Lesser included offense of operating motor vehicle after revocation as habitual violator. - Driving with a suspended or revoked license was a lesser included offense of

operating a motor vehicle after revocation of one’s license as an habitual violator since the defendant had been stopped by the police while operating an automobile on an interstate highway at a time when the defendant’s Georgia driver’s license was revoked due to the defendant’s having been declared a habitual violator. Parks v. State, 180 Ga. App. 31, 348 S.E.2d 481, 1986 Ga. App. LEXIS 2073 (1986). Double jeopardy plea when both §§ 40-5-58 and 40-5-121 charged. - After a defendant was convicted of driving with a suspended license in violation of O.C.G.A. § 40-5-121 and was later indicted for a violation of O.C.G.A. § 40-5-58, based upon the defendant’s operation of a motor vehicle after defendants had been notified that the defendant had been declared a habitual violator, the trial court was ordered to reconsider the court’s denial of the defendant’s double-jeopardy plea on grounds that the same conduct established the commission of all crimes. Whaley v. State, 260 Ga. 384, 393 S.E.2d 681, 1990 Ga. LEXIS 280 (1990). Attack on underlying conviction in de novo appeal. - In view of an Alabama conviction for driving with a suspended license, the Department of Public Safety notified the driver that their license would be suspended for an additional year, on appeal to the superior court, the driver contended the driver had been improperly convicted because the driver had not received notice of the suspension before the driver’s arrest, and the superior court determined that in fact the driver did not receive notice that the driver’s license had been suspended until eight or ten hours after the driver was charged with driving with a suspended license and thus concluded that the additional suspension period was improper, it was held that a collateral attack on an underlying conviction which is used to support a license suspension may not be made in a de novo appeal unless the conviction is void on the conviction’s face and the driving with a suspended license conviction in Alabama was not void on the conviction’s face. Accordingly, the superior court erred in ruling the license suspension to be

improper. Earp v. Fletcher, 183 Ga. App. 593, 359 S.E.2d 456, 1987 Ga. App. LEXIS 2032 (1987). Record of suspension properly admitted. - When the defendant was charged with driving with a suspended license, a certified copy of the defendant’s notice of suspension prepared in connection with an earlier DUI conviction and a computer printout establishing the date of the suspension were properly admitted under former O.C.G.A. § 24-3-17 (see now O.C.G.A. § 24-9-924). Before the printout was submitted to the jury, the trial court required that the prejudicial information on the printout be redacted. Hann v. State, 292 Ga. App. 719, 665 S.E.2d 731, 2008 Ga. App. LEXIS 851 (2008). Driving on private parking lot. - Conviction for driving with suspended license was reversed since the defendant only drove around a private parking lot, and never drove on a “public highway” as required by statute. Barrett v. State, 172 Ga. App. 485, 323 S.E.2d 654, 1984 Ga. App. LEXIS 2552 (1984). Officers knowledge of driver’s DUI as probable cause for stop. - Unpublished decision: Assuming

arguendo that the defendant’s license was suspended for only 120 days, and the defendant did not have to wait to reapply for reinstatement for 180 days under O.C.G.A. §§ 40-5-63 and 40-5-75, the defendant was pulled over and arrested 122 days after the suspension, which was the first business day on which the defendant could have applied for reinstatement under § 40-5-63(a)(1), and based on that timeline, it was reasonable for the officers to believe the defendant had not yet applied for reinstatement, especially in light of the fact that the officers knew the defendant had not even appeared for the DUI hearing that caused the suspension, thus, the suspended license provided a valid basis for the traffic stop. United States v. Woods, 385 Fed. Appx. 914, 2010 U.S. App. LEXIS 13642 (11th Cir. 2010).

OPINIONS OF THE ATTORNEY GENERAL No verification needed that records show date of receipt of notice. - The 1989 amendment to O.C.G.A. § 40-5-121 permits a law enforcement officer to charge a driver with the offense of driving with a suspended license without verifying that the records of the Georgia Department of Public Safety show a date of receipt of an official notice of suspension, but the amendment does not authorize a conviction without proof of receipt of actual or legal notice of the suspension. 1989 Op. Att’y Gen. No. U89-27. Mandatory imprisonment on first conviction. - O.C.G.A. § 40-5-121

requires a mandatory imprisonment of not less than two days nor more than six months upon the first misdemeanor conviction for driving while a license is suspended, revoked, or disqualified. The sentence may be suspended or probated pursuant to the authority provided in O.C.G.A. § 17-10-1(a). 1992 Op. Att’y Gen. No. U92-10. Fingerprinting required for violators. - Persons violating O.C.G.A. § 40-5-121 for driving while suspended, disqualified, or revoked should be fingerprinted. 2008 Op. Att’y Gen. No. 2008-6; 2009 Op. Att’y Gen. No. 2009-1.

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RESEARCH REFERENCES Am. Jur. 2d. 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 260, 261. C.J.S. 60 C.J.S., Motor Vehicles, § 349 et seq. ALR. Second offense, in operating vehicle or other instrumentality without proper

license or permit, as applied to several vehicles or instrumentalities owned or operated by same person, 158 A.L.R. 772. Automobiles: necessity or emergency as defense in prosecution for driving without operator’s license or while license is suspended, 7 A.L.R.5th 73.