O.C.G.A. § 40-5-70 (2019)

Annotations

Law reviews. For note on 1992 amendment of this Code section, see 9 Georgia St. U.L. Rev. 298 (1992). For article commenting on the 1997 amendment of this Code section, see 14 Georgia 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).

MOTOR VEHICLES & TRAFFIC

For article on the 2019 amendment of this Code section, see 36 Georgia St. U.L. Rev. 145 (2019). 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 Ga. App. LEXIS 2592 (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, 1988 Ga. App. LEXIS 1077 (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, 1988 Ga. App. LEXIS 1077 (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 Ga. App. LEXIS 192 (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 Ga. App. LEXIS 267 (1989), overruled on other grounds, Pender v. Witcher, 196 Ga. App. 856, 397 S.E.2d 193, 1990 Ga. App. LEXIS 1094 (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 Ga. App. LEXIS 1266 (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 Ga. App. LEXIS 94 (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 Ga. App. LEXIS 985 (1993); Grisson v. State, 237 Ga. App. 559, 515 S.E.2d 857. 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 Ga. App. LEXIS 1695 (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 Ga. App. LEXIS 1695 (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 Ga. App. LEXIS 2490 (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 Ga. App. LEXIS 2490 (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 Ga. App. LEXIS 608 (2000), cert. denied, No. S00C1544, 2000 Ga. LEXIS 730 (Ga. Sept. 28, 2000). 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 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. -

MOTOR VEHICLES & TRAFFIC

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.