2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 1 - Procedure for Sentencing and Imposition of Punishment
§ 17-10-3.1. Punishment for Violations of Code Section 40-6-391

1. In any case where a person is sentenced to a period of imprisonment under Code Section 40-6-391 upon conviction for violating subsection (k) of said Code section, it is within the authority and discretion of the sentencing judge in cases involving the first such violation to allow the sentence to be served on weekends by weekend confinement or during the nonworking hours of the defendant. A weekend shall commence and shall end in the discretion of the sentencing judge, and the nonworking hours of the defendant shall be determined in the discretion of the sentencing judge; provided, however, that the judge shall retain plenary control of the defendant at all times during the sentence period. Confinement during the nonworking hours of a defendant during any day may be counted as serving a full day of the sentence.
2. Any confinement of a person pursuant to a sentence to a period of imprisonment under Code Section 40-6-391 upon conviction for violating subsection (k) of said Code section shall be served in a county jail, provided that for the first such violation such person shall be kept segregated from all offenders other than those confined for violating subsection (k) of Code Section 40-6-391.

(Code 1981, §17-10-3.1, enacted by Ga. L. 1997, p. 760, § 2; Ga. L. 1999, p. 391, § 4.)

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

Ga. L. 1997, p. 760, § 27, not codified by the General Assembly, provides that this Code section applies to all offenses committed on or after July 1, 1997.

Ga. L. 1999, p. 391, §§ 1 and 2, not codified by the General Assembly, provides in part that the memory of all victims of drunken driving and Heidi Marie Flye, Cathryn Nicole Flye, and Audrey Marie Flye should be honored and that this Act shall be known and may be cited as "Heidi's Law".

- For article commenting on the 1997 enactment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For note on 1999 amendment to this Code section, see 16 Ga. St. U.L. Rev. 200 (1999).

JUDICIAL DECISIONS

Driving under the influence sentence improper.

- Sentence of ten days in jail followed by 12 months probation for conviction of driving under the influence was improper. Kovacs v. State, 227 Ga. App. 870, 490 S.E.2d 539 (1997).

- Sentence of 30 days in custody, 11 months probation, 40 hours of community service, and fines totaling $2,000 on conviction of driving under the influence of alcohol, driving with an unlawful alcohol concentration, and failure to maintain lane was not excessive. Gidey v. State, 228 Ga. App. 250, 491 S.E.2d 406 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Probation and suspension of sentences under

§ 40-6-391, relating to driving under the influence. - Although not authorized under former Code 1933, § 68A-902 (see O.C.G.A. § 40-6-391) or former Code 1933, § 27-2506 (see O.C.G.A. § 17-10-3) to suspend or cancel licenses of those convicted of driving under the influence of drugs or intoxicants, a judge may sentence a defendant to either, but not both, a suspended or probated sentence which may be properly conditioned upon payment of a fine. 1974 Op. Att'y Gen. No. U74-78.

That portion of former Code 1933, § 68A-902 (see O.C.G.A. § 40-6-391), which uses the word "shall" authorizing the imposition of a 90-day penalty is mandatory and cannot be construed to mean that the court is vested with discretion in imposing the minimum 90-day sentence. However, former Code 1933, § 68A-902 (see O.C.G.A. § 17-10-3), relating to punishment of misdemeanors, permits a judge to impose in addition to or instead of any other penalty provided for the punishment of a misdemeanor involving a traffic offense, probation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge. Therefore, a judge imposing sentence pursuant to former Code 1933, § 68A-902 (see O.C.G.A. § 40-6-391) may probate either the fine or the sentence as well as both the fine and the sentence. 1974 Op. Att'y Gen. No. U74-102.