2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 5 - Drivers' Licenses
Article 3 - Cancellation, Suspension, and Revocation of Licenses
§ 40-5-58. Habitual Violators; Probationary Licenses

1. As used in this Code section, "habitual violator" means any person who has been arrested and convicted within the United States three or more times within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, of:
   1. Committing any offense covered under Code Section 40-5-54 or Code Sections 40-6-390.1 through 40-6-395 or violating a federal law or regulation or the law of any state or a valid municipal or county ordinance substantially conforming to any offense covered under Code Section 40-5-54 or Code Sections 40-6-390.1 through 40-6-395; or
   2. Singularly or in combination, any of the offenses described in paragraph (1) of this subsection.
2. When the records of the department disclose that any person is a habitual violator as defined in subsection (a) of this Code section, the department shall forthwith notify such person that his or her driver's license has been revoked by operation of law and that it shall be unlawful for such habitual violator to operate a motor vehicle in this state unless otherwise provided in this Code section. Notice shall be given by certified mail or statutory overnight delivery, with return receipt requested; or, in lieu thereof, notice may be given by personal service upon such person.
3. 1. Except as provided in paragraph (2) of this subsection or in subsection (d) of this Code section, it shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his or her driver's license has been revoked as provided in subsection (b) of this Code section, if such person has not thereafter obtained a valid driver's license. Any person declared to be a habitual violator and whose driver's license has been revoked under this Code section and who is thereafter convicted of operating a motor vehicle before the department has issued such person a driver's license or before the expiration of five years from such revocation, whichever occurs first, shall be punished by a fine of not less than $750.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both. Any person declared to be a habitual violator and whose driver's license has been revoked and who is convicted of operating a motor vehicle after the expiration of five years from such revocation but before the department has issued such person a driver's license shall be guilty of a misdemeanor.
   2. Any person declared to be a habitual violator as a result of three or more convictions of violations of Code Section 40-6-391 within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, and who is thereafter convicted of operating a motor vehicle during such period of revocation, prior to the issuance of a probationary license under subsection (d) of this Code section or before the expiration of five years, shall be guilty of the felony of habitual impaired driving and shall be punished by a fine of not less than $1,000.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both.
4. 1. Notwithstanding any contrary provisions of this Code section or any other Code section of this chapter, any person who has been declared a habitual violator and who has had his or her driver's license revoked under subsection (b) of this Code section for a period of five years and two years have expired since the date on which such person's license was surrendered or an affidavit was accepted as provided in subsection (e) of Code Section 40-5-61 may be issued a probationary driver's license for a period of time not to exceed three years upon compliance with the following conditions:
      1. Such person has not been convicted, or pleaded nolo contendere to a charge, of violating any provision of this chapter, Chapter 6 of this title, or any local ordinance relating to the movement of vehicles for a period of two years immediately preceding the application for a probationary driver's license;
      2. Such person has not been convicted, or pleaded nolo contendere to a charge, of a violation of any provision of this chapter or Chapter 6 of this title which resulted in the death or injury of any individual;
      3. Such person has successfully completed, prior to the issuance of the probationary driver's license, 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 as designated by the department;
      4. Reserved;
      5. Such person shall submit a sworn affidavit that such person does not excessively use alcoholic beverages and does not illegally use controlled substances or marijuana when a person has been declared a habitual violator based upon a violation of a state law or local ordinance involving Code Section 40-6-391. It shall be a misdemeanor to falsely swear on such affidavit and, upon conviction, the probationary license shall be revoked. No probationary license shall be issued during the remainder of the revocation period, and no driver's license shall be issued for the remainder of the original revocation period or for a period of two years from the date of conviction under this subparagraph;
      6. Such person submits proof of financial responsibility as provided in Chapter 9 of this title; and
      7. Refusal to issue a probationary driver's license would cause extreme hardship to the applicant. For the purposes of this subsection, the term "extreme hardship" means that the applicant cannot reasonably obtain other transportation, and, therefore, the applicant would be prohibited from:
         1. Going to his or her place of employment or performing the normal duties of his or her occupation;
         2. Receiving scheduled medical care or obtaining prescription drugs;
         3. Attending a college or school at which he or she is regularly enrolled as a student;
         4. Attending regularly scheduled sessions or meetings of support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner; or
         5. Attending under court order any driver education or improvement school or alcohol or drug treatment program or course approved by the court which entered the judgment of conviction resulting in revocation of his or her driver's license or by the commissioner.
   2. Application for a probationary driver's license shall be made upon such forms as the commissioner may prescribe. Such forms shall require such information as is necessary for the department to determine the need for such license. All applications shall be signed by the applicant before a person authorized to administer oaths.
   3. Upon compliance with the above conditions and the payment of a fee of $210.00, or $200.00 when processed by mail, such person may be issued a probationary driver's license by the department. Upon payment of a fee in an amount the same as that provided by Code Section 40-5-25 for issuance of a Class C driver's license, a person may be issued a replacement for a lost or destroyed probationary driver's license issued to him or her.
   4. A probationary driver's license shall be endorsed with such conditions as the commissioner deems necessary to ensure that such license will be used by the licensee only to avoid the conditions of extreme hardship. Such conditions may include the following restrictions:
      1. Specific places between which the licensee may be allowed to operate a motor vehicle;
      2. Routes to be followed by the licensee;
      3. Times of travel;
      4. The specific vehicles which the licensee may operate; and
      5. Such other restrictions as the department may require.
   5. A probationary driver's license issued pursuant to this Code section shall become invalid upon the expiration of the period of the suspension or revocation of the driver's license of such person.
   6. 1. 1. Any probationary licensee violating the provisions of paragraph (4) of this subsection or operating a vehicle in violation of any conditions specified in this subsection shall be guilty of a misdemeanor.
         2. Except as provided in division (iii) of this subparagraph, any probationary licensee violating any state law or local ordinance involving an offense listed in Code Section 40-5-54, 40-6-390.1, or 40-6-391 shall be guilty of a felony and shall be punished by a fine of not less than $1,000.00 or by imprisonment in the penitentiary for not less than one nor more than five years, or both.
         3. Any probationary licensee violating any state law or local ordinance involving a felony offense listed in Code Section 40-5-54 shall be guilty of a felony and shall be punished as is provided for conviction of such felony.
      2. Any probationary licensee who is convicted of violating, or who pleads nolo contendere to a charge of violating, any state law or local ordinance involving an offense listed in Code Section 40-5-54, 40-6-390.1, or 40-6-391 or any probationary licensee who is convicted of violating, or who pleads nolo contendere to a charge of violating, the conditions endorsed on such license, shall have his or her license revoked by the department. Any court in which such conviction is had or in which said nolo contendere plea is accepted shall require the licensee to surrender the license to the court. The court shall forward the license to the department within ten days after the conviction or acceptance of the plea, with a copy of the conviction. Any person whose probationary license is revoked for committing an offense listed in Code Section 40-5-54, 40-6-390.1, or 40-6-391 shall not be eligible to apply for a regular driver's license until the expiration of the original five-year revocation period during which the probationary license was originally issued or for a period of two years following the conviction, whichever is greater.
      3. If the commissioner has reason to believe or makes a preliminary finding that the requirements of the public safety or welfare outweigh the individual needs of a person for a probationary license, the commissioner, in his or her discretion, after affording the person notice and an opportunity to be heard, may refuse to issue the license under this subsection.
      4. Any person whose probationary driver's license has been revoked shall not be eligible to apply for a subsequent probationary license under this Code section for a period of five years.
   7. Any person whose probationary license has been revoked or who has been refused a probationary license by the department may make a request in writing for a hearing to be provided by the department. Such hearing shall be provided by the department within 30 days after the receipt of such request and shall follow the procedures required by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Appeal from such hearing shall be in accordance with Chapter 13 of Title 50.
5. If a person's license was revoked for a violation of Code Section 40-6-391 resulting from a motor vehicle collision in which any person lost his or her life, the person whose license was revoked shall not be entitled to a probationary license as set forth in this Code section.

(Code 1933, § 68B-308, enacted by Ga. L. 1975, p. 1008, § 1; Ga. L. 1977, p. 307, § 3; Ga. L. 1978, p. 225, § 1; Ga. L. 1980, p. 691, §§ 2, 3; Ga. L. 1982, p. 3, § 40; Ga. L. 1982, p. 867, § 1; Ga. L. 1982, p. 1862, § 2; Ga. L. 1983, p. 3, § 29; Ga. L. 1983, p. 1000, § 5; Ga. L. 1984, p. 22, § 40; Ga. L. 1984, p. 797, §§ 1, 2; Ga. L. 1985, p. 758, §§ 5, 6; Ga. L. 1987, p. 1082, §§ 2, 3; Ga. L. 1988, p. 385, § 1; Ga. L. 1988, p. 897, § 3; Ga. L. 1988, p. 1893, § 1A; Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 1154, § 2; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 779, § 19; Ga. L. 1992, p. 2556, § 1; Ga. L. 1992, p. 2785, § 8; Ga. L. 1994, p. 745, § 1; Ga. L. 2000, p. 951, §§ 5-21, 5-22; Ga. L. 2000, p. 1204, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2006, p. 449, § 7/HB 1253; Ga. L. 2011, p. 99, § 58/HB 24; Ga. L. 2011, p. 355, § 5/HB 269; Ga. L. 2011, p. 752, § 40/HB 142; Ga. L. 2014, p. 710, § 1-10/SB 298; Ga. L. 2017, p. 608, § 3/SB 176; Ga. L. 2021, p. 228, § 4/HB 534.)

The 2017 amendment, effective July 1, 2017, deleted the provisions of subparagraph (e)(1)(D), which read: "Such person has not been convicted, or pleaded nolo contendere to a charge, of violating any provision of Title 3, relating to alcoholic beverages, or of violating any provision of Chapter 13 of Title 16, relating to controlled substances;".

The 2021 amendment, effective May 3, 2021, substituted "40-6-390.1" for "40-6-391" twice in paragraph (a)(1); substituted "subsection (d)" for "subsection (c)" near the beginning of the first sentence of paragraph (c)(1) and in the middle of paragraph (c)(2); deleted former subsection (d), which read: "Notwithstanding any contrary provisions of Code Section 17-7-95 or 24-4-410, for the purposes of this Code section, any plea of nolo contendere entered and accepted after January 1, 1976, shall be considered a conviction."; redesignated former subsections (e) and (f) as present subsections (d) and (e), respectively; inserted "or her” throughout subsection (d) and in the middle of subsection (e); added "when a person has been declared a habitual violator based upon a violation of a state law or local ordinance involving Code Section 40-6-391" at the end of the first sentence of subparagraph (d)(1)(E); inserted "or she" in division (d)(1)(G)(iii); inserted a comma following "$210.00" in the first sentence of paragraph (d)(3); and substituted "such license" for "his license" near the end of the first sentence of subparagraph (d)(6)(B); substituted "Code Section 40-5-54, 40-6-390.1, or 40-6-391” for "Code Section 40-5-54 or Code Section 40-6-391” in division (d)(6)(A)(ii), and in the first and fourth sentences of subparagraph (d)(6)(B). See Editor's notes for applicability.

- Surrender of license plates of habitual violators, § 40-2-136.

Seizure and forfeiture of motor vehicle operated by habitual violator, § 40-6-391.2.

- Pursuant to Code Section 28-9-5, in 1989, a semicolon was substituted for a colon at the end of subparagraph (e)(4)(B).

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Ga. L. 2021, p. 228, § 11/HB 534, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to all offenses committed on and after such date." This Act was approved by the Governor on May 3, 2021.

- For article on the effect of receiving government-issued licenses after a conviction based on a nolo contendere plea, see 13 Ga. L. Rev. 723 (1979). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992).

ANALYSIS

• General Consideration
• Notice
• Practice and Procedure
• Sentence and Appeal

OPINIONS OF THE ATTORNEY GENERAL

Operation of construction equipment by habitual violator.

- Driver declared to be a habitual violator and given notice as provided by law is not guilty of the offense of operating a vehicle after having been declared a habitual violator when the driver operates self-propelled road construction equipment which is not designed or used primarily for the transportation of persons or property so long as such a vehicle is not operated on the highways of this state. 1990 Op. Att'y Gen. No. U90-14.

- Holding of the Court of Appeals in Galletta v. Hardison, 168 Ga. App. 36 (1983) is applicable solely to appeals from driver's license revocations by the Georgia Department of Public Safety and individuals designated as habitual violators prior to January 1, 1991, based upon one or more convictions for driving with a suspended license who drive prior to obtaining reinstatement of their driving privileges by the Department of Public Safety; those drivers are subject to felony prosecution pursuant to subsection (c) of O.C.G.A. § 40-5-58 notwithstanding the 1990 amendment to that Code section. 1992 Op. Att'y Gen. No. U92-5.

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 143 et seq.

- What amounts to conviction or adjudication of guilt for purposes of refusal, revocation, or suspension of automobile driver's license, 79 A.L.R.2d 866.

Validity and construction of statute or ordinance mandating imprisonment for habitual or repeated traffic offender, 2 A.L.R.4th 618.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.