When the police arrest someone for a DUI, it starts both a criminal prosecution and a civil administrative action against the accused. Most are familiar with a traditional criminal prosecution. However, there is a second "civil prosecution" against the defendant in regards to their privilege to drive.
The civil action against a suspected DUI driver starts within ten days of a person's arrest. An accused DUI driver only has ten days to "appeal" their automatic license suspension. Otherwise, their license will be automatically suspended.
As in any appeal, the judgment is already made, and the driver is then appealing a suspension that has already happened. Thus, the level of "due process" we give people charged with a DUI is, at best, limited.
If you refuse chemical testing or submit to testing and your blood alcohol concentration is higher than .08%, the officer will confiscate your physical driver's license and fill out what is called a 1205 form. This form is a temporary driver's license that is valid for 30 days. To continue driving, a 10-Day Letter must be submitted timely with a $150 check or money order. When this letter is received, it stays the license suspension until your administrative license suspension hearing (ALS).
At your ALS hearing, the officer can dangle the carrot of driving to push a conviction for driving under the influence. Refusing chemical testing relating to a DUI will subject you to a 1-year license suspension. At a Georgia ALS hearing, the officer also has the ability to retract the suspension in exchange for a guilty plea in your criminal case. It is important to understand that the ALS hearing is a civil hearing, not criminal. See O.C.G.A. 40-5-67.1(g)(1); see also Nolen v. State, 218 Ga. App. 819 (1995) (recognizing that proceedings pursuant to Section 40-5-67.1 are civil, administrative proceedings). The respondent agency bears the burden of proof. Ga. Comp. R & Regs. 616-1-2-.07. The standard of proof is a preponderance of the evidence, not beyond a reasonable doubt, as in a criminal trial Ga. Comp. R & Regs. 616-1-2-.21(4).
The scope of the administrative hearing is limited to the six below elements:
- There must be probable cause to make the arrest. This requires the arresting officer have knowledge or reasonably trustworthy information that a suspect was likely in physical control of a moving vehicle. Handley v. State, 294 Ga. App. 236, 237 (2008). Regarding probable cause, "facts and circumstances [were] known to [the] officer must be examined together. It is the totality of the facts and circumstances that matter not any one fact or circumstance alone. Hughes v. State, 296 Ga. 744, 748-49 (2015).
- Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
- Whether at the time of the request for the test or tests the officer informed the person of the person's implied consent rights and the consequences of submitting or refusing to submit to such test; and
- Whether the person refused the test; or
- Whether a test or tests were administered [and the results thereof]; and
- Whether the test or tests were properly administered
The purported purpose of the ALS hearing is to provide “a quick, informal procedure to remove dangerous drivers from Georgia's roadways and thereby protect public safety.” Swain v. State, 251 Ga. App. 110, 113 (2001) (holding that the scope of the ALS hearing was limited to six discrete issues). See also Miles v. Ahearn, 243 Ga. App. 741 (2000) (holding that Georgia legislature has chosen to expressly limit the issues that may be considered at an administrative license hearing).
Additionally, Georgia courts have held that an administrative license suspension hearing is a remedial proceeding, separate from the criminal proceeding, which relates to the privilege to drive on Georgia roadways.
[T]he purpose of the license suspension hearing is clearly remedial. ‘The state of Georgia considers dangerous and negligent drivers to be a direct and immediate threat to the welfare and safety of the general public, and it is in the best interest of the citizens of Georgia immediately to remove such drivers from the highways of this state.' O.C.G.A 40-5-57.
Nolen v. State, 218 Ga. App. 819, 822 (1995).
The Georgia Court of Appeals has described ALS hearings as an “abbreviated procedure: where the state has limited opportunity to litigate the issues. Swain v. State, 251 Ga. App. At 114. Defenses that are allowed in the criminal case cannot be used in the ALS hearing unless they are within the four elements listed above.
Thank you to my Law Clerk Sarah Illg for this contribution to our blog.