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2018 Georgia Code 40-5-63 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 40-5-63 Case Law from Google Scholar Amendments to OCGA 40-5-63

TITLE 40 MOTOR VEHICLES AND TRAFFIC

Section 5. Drivers' Licenses, 40-5-1 through 40-5-179.

ARTICLE 3 CANCELLATION, SUSPENSION, AND REVOCATION OF LICENSES

40-5-63. Periods of suspension; conditions to return of license.

  1. The driver's license of any person convicted of an offense listed in Code Section 40-5-54 or of violating Code Section 40-6-391, unless the driver's license has been previously suspended pursuant to Code Sections 40-5-67.1 and 40-5-67.2, shall by operation of law be suspended and such suspension shall be subject to the following terms and conditions; provided, however, that any person convicted of a drug related offense pursuant to Code Section 40-6-391 shall be governed by the suspension requirements of Code Section 40-5-75; and further provided that each charge for which a conviction was obtained shall be treated as a separate transaction for the purpose of imposing a license suspension hereunder, even if said convictions arise from a single incident; and further provided that the department shall treat each conviction received in the order in which said convictions are processed even if it is not the order in which said offenses occurred:
    1. Upon the first conviction of any such offense, with no arrest and conviction of and no plea of nolo contendere accepted to such offense within the previous five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be 12 months.At the end of 120 days, the person may apply to the department for early reinstatement of his or her driver's license.Such license shall be reinstated if such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail, provided that, if such license was suspended as a result of a conviction of an offense listed in Code Section 40-5-54, such license shall be reinstated if such person submits proof of completion of either a defensive driving course approved by the commissioner pursuant to Code Section 40-5-83 or a DUI Alcohol or Drug Use Risk Reduction Program and pays the prescribed restoration fee.A driver's license suspended as a result of a conviction of a violation of Code Section 40-6-391 shall not become valid and shall remain suspended until such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays the prescribed restoration fee.For purposes of this paragraph, an accepted plea of nolo contendere to an offense listed in Code Section 40-5-54 by a person who is under 18 years of age at the time of arrest shall constitute a conviction.For the purposes of this paragraph only, an accepted plea of nolo contendere by a person 21 years of age or older, with no conviction of and no plea of nolo contendere accepted to a charge of violating Code Section 40-6-391 within the previous five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere accepted to the date of the current arrest for which a plea of nolo contendere is accepted, shall be considered a conviction, and the court having jurisdiction shall forward, as provided in Code Section 40-6-391.1, the record of such disposition of the case to the department and the record of such disposition shall be kept on file for the purpose of considering and counting such accepted plea of nolo contendere as a conviction under paragraphs (2) and (3) of this subsection;
    2. Upon the second conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be three years. At the end of 120 days, the person may apply to the department for reinstatement of his or her driver's license; except that if such license was suspended as a result of a second conviction of a violation of Code Section 40-6-391 within five years, the person shall not be eligible to apply for license reinstatement until the end of 18 months. Such license shall be reinstated if such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail, provided that, if such license was suspended as a result of a conviction of an offense listed in Code Section 40-5-54, such license shall be reinstated if such person submits proof of completion of either a defensive driving course approved by the commissioner pursuant to Code Section 40-5-83 or a DUI Alcohol or Drug Use Risk Reduction Program and pays the prescribed restoration fee. A driver's license suspended as a result of a conviction of a violation of Code Section 40-6-391 shall not become valid and shall remain suspended until such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program, provides proof of installation and maintenance of an ignition interlock device for a period of one year coinciding with the issuance of an ignition interlock device limited driving permit as provided in Code Section 40-5-64.1 unless waived due to financial hardship, and pays the prescribed restoration fee. For purposes of this paragraph, a plea of nolo contendere and all previous accepted pleas of nolo contendere to an offense listed in Code Section 40-5-54 within such five-year period of time shall constitute a conviction. For the purposes of this paragraph, a plea of nolo contendere to a charge of violating Code Section 40-6-391 and all prior accepted pleas of nolo contendere within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a plea of nolo contendere is accepted, shall be considered and counted as convictions; or
    3. Upon the third conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, such person shall be considered a habitual violator, and such license shall be revoked as provided for in paragraphs (1) through (3) of subsection (a) of Code Section 40-5-62. For purposes of this paragraph, a plea of nolo contendere and all previous accepted pleas of nolo contendere to an offense listed in Code Section 40-5-54 within such five-year period shall constitute a conviction. For the purposes of this paragraph, a plea of nolo contendere and all prior accepted pleas of nolo contendere to a charge of violating Code Section 40-6-391 within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a plea of nolo contendere is accepted, shall be considered and counted as convictions.
  2. The periods of suspension provided for in this Code section shall begin on the date the person is convicted of an offense listed in Code Section 40-5-54 or of violating Code Section 40-6-391.
  3. In all cases in which the department may return a license to a driver prior to the termination of the full period of suspension, the department may require such tests of driving skill and knowledge as it determines to be proper, and the department's discretion shall be guided by the driver's past driving record and performance, and the driver shall pay the applicable restoration fee. In addition to any other requirement the department may impose, a driver's license suspended as a result of a conviction of a violation of Code Section 40-6-391 shall not become valid, shall remain suspended, and shall not be returned to such driver or otherwise reinstated until such person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program.
    1. Any person convicted of violating subsection (a) of Code Section 40-6-393, relating to homicide by vehicle, or Code Section 40-6-394, relating to serious injury by vehicle, shall have his or her license suspended for a period of three years. Such person shall not be eligible for early reinstatement of said driver's license as provided in this Code section or in Article 4 of this chapter and shall not be eligible for a limited driving permit as provided in Code Section 40-5-64.
    2. For purposes of this chapter, an accepted plea of nolo contendere to any violation of Code Section 40-6-393 or 40-6-394 shall constitute a conviction.

(Code 1933, § 68B-312, enacted by Ga. L. 1975, p. 1008, § 1; Ga. L. 1976, p. 1670, § 1; Ga. L. 1978, p. 225, § 4; Ga. L. 1982, p. 3, § 40; Ga. L. 1982, p. 1601, §§ 1, 2; Ga. L. 1983, p. 3, § 29; Ga. L. 1983, p. 487, § 2; Ga. L. 1983, p. 1000, § 6; Ga. L. 1985, p. 149, § 40; Ga. L. 1985, p. 758, § 7; Ga. L. 1987, p. 1082, § 4; Ga. L. 1989, p. 1698, § 2; Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, § 4; Ga. L. 1991, p. 1886, § 3; Ga. L. 1992, p. 779, § 20; Ga. L. 1992, p. 2564, § 2; Ga. L. 1992, p. 2746, § 2; Ga. L. 1992, p. 2785, §§ 9, 10; Ga. L. 1993, p. 940, § 5; Ga. L. 1994, p. 730, § 2; Ga. L. 1997, p. 760, § 16; Ga. L. 1997, p. 1085, § 3; Ga. L. 2000, p. 951, §§ 5-24, 5-25; Ga. L. 2000, p. 1457, § 2; Ga. L. 2001, p. 208, §§ 2-3, 3-3; Ga. L. 2005, p. 334, § 17-15/HB 501; Ga. L. 2006, p. 449, § 9/HB 1253; Ga. L. 2007, p. 47, § 40/SB 103; Ga. L. 2010, p. 932, § 13/HB 396; Ga. L. 2011, p. 355, § 7/HB 269; Ga. L. 2013, p. 878, § 1/HB 407; Ga. L. 2014, p. 710, § 1-12/SB 298; Ga. L. 2015, p. 60, § 4-16/SB 100; Ga. L. 2016, p. 323, § 2-3/HB 205; Ga. L. 2016, p. 443, § 4-5/SB 367.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2017, substituted "Code Section 40-5-64.1" for "Code Section 40-5-64" in the fourth sentence of paragraph (a)(2). The second 2016 amendment, effective July 1, 2016, substituted "such license shall be revoked as provided for in paragraphs (1) through (3)" for "said license shall be revoked as provided for in paragraph (1)" in the first sentence of paragraph (a)(3).

Cross references.

- License plate revocations, § 40-2-136.

Requirement of proof of financial responsibility for the future as prerequisite to restoration of driver's license to person convicted of offense for which license suspension is mandatory, § 40-9-81.

Ignition interlock device requirements, § 42-8-110 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "this paragraph" was substituted for "this subparagraph" in the last sentence of paragraph (a)(2).

Pursuant to Code Section 28-9-5, in 1994, "drug related" was substituted for "drug-related" in the introductory language of subsection (a).

Editor's notes.

- Ga. L. 1990, p. 1154, § 3, effective July 1, 1990, amended former Code Section 40-5-70. Since Ga. L. 1990, p. 2048, § 4, incorporated the provisions of former Code Section 40-5-70 into this Code section, those amendments have been given effect in this Code section.

Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Teen-age and Adult Driver Responsibility Act'."

Ga. L. 1997, p. 760, § 27, not codified by the General Assembly, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and shall not apply to offenses committed prior to that date.

Ga. L. 2013, p. 878, § 5/HB 407, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses committed on or after such date."

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 article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 139 (2016). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992).

JUDICIAL DECISIONS

Warning need not exactly track statutory language.

- When the defendant contended that evidence of the defendant's refusal to submit to a chemical test to determine the alcohol content of the defendant's blood should not have been admitted because the defendant had been erroneously advised by the arresting officer that the defendant's driver's license would be suspended "for a period of six to 12 months" in the event of such a refusal, it was held that a defendant is not entitled to a warning which tracks the exact language of the implied consent statute, and the contention that the alleged misinformation prevented the defendant from making an intelligent choice strained credulity. Pryor v. State, 182 Ga. App. 79, 354 S.E.2d 690 (1987).

Notice of suspension.

- Legislature intended to effectuate suspension or revocation of a driver's license automatically upon a conviction for driving under the influence (DUI), the notice to the defendant being the trial for violation of O.C.G.A. § 40-6-391 (DUI); i.e., notice "by operation of law." Hale v. State, 188 Ga. App. 524, 373 S.E.2d 250, cert. denied, 188 Ga. App. 911, 373 S.E.2d 250 (1988).

In a prosecution for driving with a suspended license, without the defendant's agreement to stipulate to the defendant's convictions for driving under the influence (DUI), there was no recourse other than to admit the defendant's entire driving violations record to establish notice under O.C.G.A. § 40-5-63(a). A mere showing of the defendant's suspended status, without proof of the DUI violations, would have been insufficient. Hale v. State, 188 Ga. App. 524, 373 S.E.2d 250, cert. denied, 188 Ga. App. 911, 373 S.E.2d 250 (1988).

Subsection (a) of O.C.G.A. § 40-5-63 effectuates suspension or revocation of a driver's license automatically upon a conviction for driving under the influence, the notice of suspension being the trial for the driving offense under O.C.G.A. § 40-6-391. Eppinger v. State, 236 Ga. App. 426, 512 S.E.2d 320 (1999).

Defendant's driver's license was properly suspended after the defendant pled guilty to and received sentences as a first offender for two counts of homicide by vehicle in the first degree and one count of driving with ability impaired by alcohol. Salomon v. Earp, 190 Ga. App. 405, 379 S.E.2d 217 (1989), overruled on other grounds, Pender v. Witcher, 196 Ga. App. 856, 397 S.E.2d 193 (1990).

Under the plain language of O.C.G.A. § 40-5-63(a), because the underlying DUI convictions pursuant to O.C.G.A. § 40-6-391 did not have to result from separate arrests or separate and isolated incidents, the Department of Driver Services could suspend a driver's license based upon two separate DUI convictions resulting from a single incident. Dozier v. Jackson, 282 Ga. App. 264, 638 S.E.2d 337 (2006).

Probation condition requiring court permission to drive.

- Condition of probation requiring the defendant to seek the court's permission to drive was within the requisite statutory parameters. Durrance v. State, 319 Ga. App. 866, 738 S.E.2d 692 (2013).

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 as permitted by statutory procedure. Payne v. State, 209 Ga. App. 780, 434 S.E.2d 543 (1993); Grisson v. State, 237 Ga. App. 559, 515 S.E.2d 857 (1999).

Habitual violator and general nolo contendere provisions concurrently effective.

- Ga. L. 1946, p. 142, §§ 1-3 (see now O.C.G.A. § 17-7-95) referred generally to the effects of pleas of nolo contendere as compared with pleas of guilty and makes no reference to the suspension of licenses. Since paragraph (a)(2) of former Code 1933, § 68B-312 (see now O.C.G.A. § 40-5-63) referred not to crimes generally, but only to the specific offenses of driving under the influence of alcohol or drugs, the two sections have concurrent efficacy. Howe v. Cofer, 144 Ga. App. 589, 241 S.E.2d 472 (1978) (decided prior to 1983 amendment which rewrote provisions relating to effect of accepted pleas of nolo contendere.

When nolo contendere plea considered conviction.

- Nolo contendere plea will be considered to be a conviction when there has been another conviction or accepted plea within the statutory five-year period. Howe v. Cofer, 144 Ga. App. 589, 241 S.E.2d 472 (1978) (decided prior to 1983 amendment which rewrote provisions relating to effect of accepted pleas of nolo contendere).

Language of paragraph (a)(3) of former Code 1933, § 68B-312 (see now O.C.G.A. § 40-5-63) permitted the department to rely upon a nolo contendere accepted prior to the effective date of former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58) as a conviction in classifying a person as a habitual violator. Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978) (decided prior to 1983 amendment which rewrote provisions relating to effect of accepted pleas of nolo contendere.

Habitual violator provision not ex post facto.

- Habitual violator provision which considers offenses occurring before provision's enactment is not ex post facto. The repetition of the criminal conduct aggravates the offender's guilt and justifies heavier penalties when the offender is again convicted, and the penalty is imposed for a new crime only, but is heavier if the offender is a habitual violator. The increased penalty is for the latest crime, which is considered to be an aggravated offense because it is repetitive. Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978) (decided prior to 1983 amendment which rewrote provisions relating to effect of accepted pleas of nolo contendere).

Mistaken suspension.

- Since the defendant's license suspension under O.C.G.A. § 40-5-63 was an ancillary result of the erroneous filing of the conviction papers, the suspension was not punishment within the meaning of the bar against double jeopardy. Locklear v. State, 244 Ga. App. 10, 534 S.E.2d 575 (2000).

Officers knowledge of driver's DUI as probable cause for stop.

- 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 and40-5-75, 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, F.3d (11th Cir. July 2, 2010)(Unpublished).

Cited in Kimbrell v. State, 164 Ga. App. 344, 296 S.E.2d 206 (1982); Hale v. State, 188 Ga. App. 524, 373 S.E.2d 250 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 40-5-70 are included in the annotations for this Code section.

Application for limited permit.

- Driver may not apply for limited permit when driver's license was revoked under paragraph (a)(3) of former Code 1933, § 68B-312. 1977 Op. Att'y Gen. No. 77-54 (see now O.C.G.A. § 40-5-63).

Age as affecting when accepted plea of nolo contendere considered conviction.

- Under O.C.G.A. § 40-5-63, which provides for the suspension of the driver's license of any person convicted of a violation of O.C.G.A. § 40-6-391, an accepted plea of nolo contendere tendered by an individual 18 years of age or older who has no previous conviction on these charges within the previous five years is not to be considered a conviction; however, an accepted plea of nolo contendere tendered by a person less than 18 years of age is to be considered a conviction. 1986 Op. Att'y Gen. U86-20 (rendered under former § 40-5-70).

When an individual is less than 18 years of age at the time of arrest but is more than 18 years of age at the time the individual tenders a plea of nolo contendere, the plea is still considered as one tendered by a person less than 18 years of age, and therefore constitutes a conviction. 1986 Op. Att'y Gen. No. U86-20 (rendered under former § 40-5-70).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 159.

C.J.S.

- 60 C.J.S., Motor Vehicles, § 459.

ALR.

- Statute providing for judicial review of administrative order revoking or suspending automobile driver's license as providing for trial de novo, 97 A.L.R.2d 1367.

Cases Citing Georgia Code 40-5-63 From Courtlistener.com

Total Results: 4

HOSTETLER v. THE STATE

Court: Supreme Court of Georgia | Date Filed: 2024-06-11

Snippet: also suspended by operation of law under OCGA § 40-5-63 (a) (1) for a term of 12 months but was reinstated

State v. Johnson

Court: Supreme Court of Georgia | Date Filed: 1998-04-13

Citation: 499 S.E.2d 56, 269 Ga. 370

Snippet: reinstatement of their driver's licenses. OCGA § 40-5-63(a)(1). [2] Class rosters are among the documents

Priest v. State

Court: Supreme Court of Georgia | Date Filed: 1991-11-01

Citation: 409 S.E.2d 657, 261 Ga. 651, 1991 Ga. LEXIS 865

Snippet: (driver's license was properly suspended under OCGA § 40-5-63 where defendant pled guilty to homicide by vehicle

State v. Rocco

Court: Supreme Court of Georgia | Date Filed: 1989-10-05

Citation: 384 S.E.2d 183, 259 Ga. 463

Snippet: are found in OCGA § 40-5-63 (a) (2) and OCGA § 40-5-58 (d). Under OCGA § 40-5-63 (a) (2), a person's