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  1. #1
    Join Date
    Mar 2009
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    6

    Default Time Served Under Suspension Not Applied After Court

    My question involves a driver's license issued by the State of: Georgia

    I'm under 21 and I got pulled over September 29 of 2007. They arrested me for a DUI and I blew a .11 on the breathalyzer. I got a lawyer, fought the charge and got it reduced to a reckless driving. I was charged with the reckless driving on October 1st, 2008 (Yes, it took an 1 year for everything to happen).

    When I went to DDS to get my license reinstated, they had no idea what was going on. I left, and called their 1 800 number and after being transfered to 2 different people, I got a response from a guy telling me that the suspension form Sept. 2007 to Oct. 2008 does not count for the reckless driving suspension and I do not get credit for the time served. He said something about my ALS (administrative lisence suspension) credit cannot be applied to the reckless charge.

    My question is why the time for the suspension I served cannot be applied to the reckless suspension and is there anything I can do about it? I just think its unfair that my license is suspended for more than 2 years for something that should of only been 1 year.

    Thanks in advance for any help.

  2. #2
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    Sep 2005
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    Default Re: Time Served Under Suspension Not Applied After Court

    They're stating that you received an administrative license suspension for DUI, and that due to your conviction charge being for a completely different offense they can't apply that administrative suspension to the one resulting from your reckless driving conviction. I assume your lawyer told you that the DMV is correct?

  3. #3
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    Default Re: Time Served Under Suspension Not Applied After Court

    It's two different suspensions, criminal and civil.

    1. An administrative suspension that's ruled by civil procedure based on blowing over .02.
    2. A suspension as a part of your criminal conviction.

  4. #4
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    Default Re: Time Served Under Suspension Not Applied After Court

    Quote Quoting Mr. Knowitall
    View Post
    They're stating that you received an administrative license suspension for DUI, and that due to your conviction charge being for a completely different offense they can't apply that administrative suspension to the one resulting from your reckless driving conviction. I assume your lawyer told you that the DMV is correct?
    My lawyer is an idiot and doesn't really help with the situation any more. I used him because he was cheap and I didn't have much money... and you basically got the story right.. they will not apply the time served for the administrative license suspension to the reckless driving charge because the administrative license suspension was for a DUI and not a reckless... stupid, if you ask me...

  5. #5
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    Mar 2009
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    Default Re: Time Served Under Suspension Not Applied After Court

    Quote Quoting Billy Mack
    View Post
    It's two different suspensions, criminal and civil.

    1. An administrative suspension that's ruled by civil procedure based on blowing over .02.
    2. A suspension as a part of your criminal conviction.
    Even though they are two different types of suspensions, I was always told that any time served under the ALS should count for the time I have to serve for the suspension from DMV or DDS (Georgia has DDS instead of DMV).

  6. #6
    Join Date
    Jul 2008
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    242

    Default Re: Time Served Under Suspension Not Applied After Court

    The court or the State can dictate if the suspension ar eto run consecutively (seperate) or concurrently (together). In othr words they are making it so that one suspension doesn't begin until the other has run out. A lawyer here on expertlaw may be able to look into how you can request from the court that the two run together to get credit for the time.

  7. #7
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    Metro Atlanta
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    Default Re: Time Served Under Suspension Not Applied After Court

    It appears that the suspension time served for the administrative license suspension must count towards any suspension if you're convicted of DUI. Since you plead to a lesser included offense, it may be that you found an interesting loophole that allows your suspension time to be nearly doubled.

    § 40-5-67.2. Terms and conditions for suspension of license under subsection (c) of Code Section 40-5-67.1


    (a) Any driver's license required to be suspended under subsection (c) of Code Section 40-5-67.1 shall be suspended subject to the following terms and conditions:

    (1) Upon the first suspension pursuant to subsection (c) of Code Section 40-5-67.1 within the previous five years, as measured from the dates of previous arrests for which a suspension was obtained to the date of the current arrest for which a suspension is obtained, the period of suspension shall be for one year. Not sooner than 30 days following the effective date of suspension, the person may apply to the department for 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 unless such conviction was a recidivist conviction in which case the restoration fee shall be $510.00 or $500.00 when processed by mail. A driver's license suspended pursuant to Code Section 40-5-67.1 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.

    (2) Upon the second suspension pursuant to subsection (c) of Code Section 40-5-67.1 within five years, as measured from the dates of previous arrests for which suspensions were obtained to the date of the current arrest for which a suspension is obtained, the period of suspension shall be for three years. The person shall be eligible to apply to the department for license reinstatement not sooner than 18 months following the effective date of suspension. 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 unless such conviction was a recidivist conviction in which case the restoration fee shall be $510.00 or $500.00 when processed by mail. A driver's license suspended pursuant to Code Section 40-5-67.1 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.

    (3) Upon the third or subsequent suspension pursuant to subsection (c) of Code Section 40-5-67.1 within five years, as measured from the dates of previous arrests for which suspensions were obtained to the date of the current arrest for which a suspension is obtained, the period of suspension shall be for five years. A driver's license suspended pursuant to Code Section 40-5-67.1 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. The driver may apply for a probationary license pursuant to Code Section 40-5-58 after the expiration of two years from the effective date of suspension.

    (b) An administrative license suspension pursuant to Code Section 40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating Code Section 40-6-391 which arises out of the same violation for which the administrative license suspension was imposed. An administrative license suspension pursuant to Code Section 40-5-67.1 shall run concurrently with any revocation of such driver's license pursuant to a subsequent determination that such person is a habitual violator.

    (c) 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 a restoration fee of $210.00 or $200.00 when processed by mail.

    (d) Any other provision of law to the contrary notwithstanding, a driver with no previous conviction for a violation of Code Section 40-6-391 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, during the period of administrative suspension contemplated under this chapter, shall be entitled to a limited driving permit as provided in Code Section 40-5-64.

  8. #8
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    Jul 2008
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    242

    Default Re: Time Served Under Suspension Not Applied After Court

    But doesn't this just apply to the breath test ann OUI and not reckless driving? I'm guessing the wreckless is a different section and chapter.....the suspension for the wreckless driving probably didn't start until the OUI suspensions ran out??????

  9. #9
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    Dec 2008
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    Default Re: Time Served Under Suspension Not Applied After Court

    The code section that I referenced was for the administrative suspension of his license. That suspension would definitely be included in the time he was suspended for a DUI conviction.

    My guess is that if that was brought before the judge, he might do something about it. I don't see a legal obligation to do so, but I don't have a copy of the annotated code at home.

    I did find this code section that might apply if your license was suspended for points.

    If you go to www.georgia.gov, you can click on the Government link. You'll see link for Georgia law. You can do more research under Title 40, Chapter 5.

    § 40-5-57.1. Suspension of licenses of persons under age 21 for certain offenses; suspension of licenses of persons under age 18 for certain point accumulations; issuance of new license following suspension


    (a) Notwithstanding any other provision of this chapter, the driver's license of any person under 21 years of age convicted of hit and run or leaving the scene of an accident in violation of Code Section 40-6-270, racing on highways or streets, using a motor vehicle in fleeing or attempting to elude an officer, reckless driving, any offense for which four or more points are assessable under subsection (c) of Code Section 40-5-57, purchasing an alcoholic beverage in violation of paragraph (2) of subsection (a) of Code Section 3-3-23, or violation of paragraph (3) or (5) of subsection (a) of Code Section 3-3-23, or violation of Code Section 40-6-391 shall be suspended by the department as provided by this Code section; and the driver's license of any person under 18 years of age who has accumulated a violation point count of four or more points under Code Section 40-5-57 in any consecutive 12 month period shall be suspended by the department as provided by this Code section. A plea of nolo contendere shall be considered a conviction for purposes of this subsection. Notice of suspension shall be given by certified mail or statutory overnight delivery, return receipt requested; or, in lieu thereof, notice may be given by personal service upon such person. Such license shall be surrendered within ten days of notification of such suspension. Notice given by certified mail or statutory overnight delivery, return receipt requested, mailed to the person's last known address shall be prima-facie evidence that such person received the required notice.

    (b) A person whose driver's license has been suspended under subsection (a) of this Code section shall:

    (1) Subject to the requirements of subsection (c) of this Code section and except as otherwise provided by paragraph (2) of this subsection:

    (A) Upon a first such suspension, be eligible to apply for license reinstatement and, subject to payment of required fees, have his or her driver's license reinstated after six months; and

    (B) Upon a second or subsequent such suspension, be eligible to apply for license reinstatement and, subject to payment of required fees, have his or her driver's license reinstated after 12 months; or
    (2)(A) If the driver's license was suspended upon conviction for violation of Code Section 40-6-391, be subject to the provisions of Code Section 40-5-63.

    (B) If such driver was convicted of driving under the influence of alcohol or of having an unlawful alcohol concentration and is otherwise subject to the provisions of paragraph (1) of subsection (a) of Code Section 40-5-63, then such person shall not be eligible for a limited driving permit under Code Section 40-5-64, and:

    (i) If the driver's alcohol concentration at the time of the offense was less than 0.08 grams, he or she shall not be eligible for license reinstatement until the end of six months; or

    (ii) If the driver's alcohol concentration at the time of the offense was 0.08 grams or more, he or she shall not be eligible for license reinstatement until the end of 12 months.

    (b.1) In any case where a person's driver's license was administratively suspended as a result of the offense for which the person's driver's license has been suspended pursuant to this Code section, the administrative license suspension period and the license suspension period provided by this Code section may run concurrently, and any completed portion of such administrative license suspension period shall apply toward completion of the license suspension period provided by this Code section.

    (c) Any driver's license suspended under subsection (a) of this Code section for commission of any offense other than violation of Code Section 40-6-391 shall not become valid and shall remain suspended until such person submits proof of completion of a defensive driving program approved by the department and pays a fee equivalent to that required for restoration of a suspended driver's license under paragraph (1) of subsection (a) of Code Section 40-5-63; provided, however, that such fee shall not be required under this subsection if such person's driver's license was administratively suspended as a result of the offense for which the person's driver's license has been suspended pursuant to this Code section and the restoration fee was paid for such administratively suspended driver's license.

    (d) A suspension provided for in this Code section shall be imposed based on the person's age on the date of the conviction giving rise to the suspension.

  10. #10
    Join Date
    Mar 2009
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    6

    Default Re: Time Served Under Suspension Not Applied After Court

    The Georgia Department of Public Safety (DPS) appeals the trial court's ruling that the habitual violator revocation of Rene D. Kemp, Jr.'s driver's license should be measured from the date it had been previously suspended under Georgia's Implied Consent Law, as both resulted from the same March 3, 1995 arrest. We reverse the trial court's ruling.

    On March 3, 1995, Kemp was charged with driving under the influence (DUI). Kemp's driver's license was seized, and he received a DPS Official Notice of Intent to Suspend License (Form 1205). Kemp's license was automatically suspended on April 3, 1995, when he failed to request a hearing in response to the Form 1205. See OCGA 40-5-67.1 (g) (1). On October 24, 1996, Kemp was convicted on the charge of DUI. Kemp was served with a Habitual Violator Revocation Notice (DPS Form 1189), because this was his third DUI offense within five years, and his license was revoked for a period of five years. He had a prior conviction for DUI in 1991, and he had forfeited bond on another DUI charge in 1993.

    On October 28, 1996, Kemp requested a credit against the revocation period for the period April 3, 1995 through October 28, 1996, when his license had been suspended, but not revoked. Kemp appealed DPS's denial of his request to the Superior Court of Fulton County, which granted Kemp relief and modified the administrative hearing Final Order accordingly. DPS's appeal to this Court by Commissioner Miles followed the trial court's ruling.

    OCGA 40-5-67.2 (b) provides, in part: "An administrative license suspension pursuant to Code Section 40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating Code Section 40-6-391 [DUI statute] which arises out of the same violation for which the administrative license suspension was imposed. An administrative license suspension pursuant to Code Section 40-5-67.1 shall run concurrently with any revocation of such driver's license pursuant to a subsequent determination that such person is a habitual violator." (Emphasis supplied.)

    "Where a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms." (Punctuation omitted.) Garrard v. Hicks, 266 Ga. 181, 182 (465 SE2d 665) (1996). The plain language of the statute makes it clear that the legislature intended to give credit for implied consent suspensions only against subsequent suspensions under the DUI statute, where both were imposed as a result of the same arrest.

    It is equally clear that the legislature chose to have implied consent suspensions simply run concurrently with any habitual violator revocation of such driver's license, without credit. Otherwise, there would be no reason to have a different provision for each circumstance.

    Given the legislature's specific description of when credit for implied consent suspensions will be given, the term concurrent in this context can only relate to time. Under the statute, no implied consent suspension can be credited against a subsequent habitual violator revocation. Therefore, under these facts, the term concurrent simply means that the suspension and the revocation time periods each began on the date of its imposition, and that each will end on its prescribed date, unaffected by the existence or termination of the other.

    The legislature permits credit for implied consent suspensions where there is a subsequent DUI suspension, but only where both suspensions arise from the same arrest. Contrary to the trial court's ruling, the habitual violator revocation did not result from the same violation as did the implied consent suspension, but rather resulted from the accumulation of three separate DUI convictions within a period of five years. See Wilson v. Miles, 218 Ga. App. 806 (463 SE2d 381) (1995). This is the reason that the legislature did not include comparable "same violation" language in the subsequent habitual violator revocation sentence that it included in the subsequent DUI suspension sentence preceding it. Revocation is the action the legislature takes against a driver based on his cumulative driving record for the protection of the public. The administrative license suspension procedure does not violate the double jeopardy provisions of the United States and Georgia Constitutions, because it is a remedial statute and it is not a punishment or prosecution. See Nolen v. State, 260 Ga. 267 (392 SE2d 524) (1990). As such prior convictions did not arise out of the same violation as the implied consent suspension, no credit would be due in any event.

    The trial court erroneously concluded that both the implied consent suspension and the habitual violator revocation resulted from the same offense, and therefore, in order to preserve the remedial purpose of the administrative license suspension and the constitutionality of such procedure, the term "suspension" in the first sentence of OCGA 40-5-67.2 (b) must be interpreted under the facts of this case to allow Kemp credit against his habitual violator revocation. The legislature has specifically defined the terms "suspension" and "revocation" in OCGA 40-5-1 "where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden." City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970).

    For the above reasons, the trial court erred in overruling the Hearing Officer and in modifying the Final Decision of the Administrative Hearing.

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