2020 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 40-6-391 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 40-6-391 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(a) of this Code section, the department shall forthwith notify such person that his or her driver's license has been revoked by operation of law and that it shall be unlawful for such habitual violator to operate a motor vehicle in this state unless otherwise provided in this Code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 (e) 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to operate any motor vehicle in this state after such person has received notice that his or her driver's license has been revoked as provided in subsection (b) of this Code section, if such person has not thereafter obtained a valid driver's license. Any person declared to be a habitual violator and whose driver's license has been revoked under this Code section and who is thereafter convicted of operating a motor vehicle before the department has issued such person a driver's license or before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 (e) 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. 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.
5. 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 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. 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 place of employment or performing the normal duties of his occupation;
         2. Receiving scheduled medical care or obtaining prescription drugs;
         3. Attending a college or school at which he 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 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 or Code Section 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 or Code Section 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 his license, shall have his 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 or Code Section 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 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.
6. 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 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.)

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;".

- 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.

- 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

General Consideration

Constitutionality.

- All habitual violators under former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58) were treated equally, and that section was not arbitrary, unreasonable, or without rational basis, nor did the statute deny equal protection of the laws. Cox v. State, 241 Ga. 154, 244 S.E.2d 1 (1978).

Because the equal protection clause of the Fourteenth Amendment does not deny a state the power to treat different classes of people in different ways, the General Assembly could have reasonably concluded that habitual violators are more dangerous than those who have had their licenses suspended or revoked. Thus, a defendant was not denied equal protection when the defendant was sentenced as a habitual violator under O.C.G.A. § 40-5-58(c) rather than being sentenced under O.C.G.A. § 40-5-121. Gaines v. State, 260 Ga. 267, 392 S.E.2d 524 (1990).

Statutory scheme of an administrative appeal and a de novo review in the superior court of the revocation of a habitual offender's license meets the due process requirements of both the state and federal constitutions. Miller v. State, 243 Ga. App. 764, 533 S.E.2d 787 (2000).

Three separate and unrelated transactions are required for designation as a habitual violator. Wilson v. Miles, 218 Ga. App. 806, 463 S.E.2d 381 (1995).

- Notwithstanding that three separate and unrelated transactions are required to designate a person as a habitual violator and that the defendant was so designated on the basis of three convictions arising from 2 arrest incidents, the defendant could still be convicted for driving after being declared a habitual violator as such a conviction required proof only that the defendant was declared an habitual violator and that the defendant thereafter operated a vehicle without a valid driver's license. Hollis v. State, 234 Ga. App. 269, 505 S.E.2d 837 (1998).

- Change in the law after one has been declared a habitual violator does not automatically rescind that status. State v. Oliver, 202 Ga. App. 613, 415 S.E.2d 54 (1992).

- The 1982 amendment of O.C.G.A. § 40-5-58, which deleted the offense of reckless driving from those offenses which contribute to habitual violator status under that section, should be given retroactive effect so as to require the superior court to disregard a pre-1982 reckless driving conviction in assessing the sufficiency of the evidence to support the revocation of a license. Galletta v. Hardison, 168 Ga. App. 36, 308 S.E.2d 47 (1983).

- Offense of violating subsection (c) of O.C.G.A. § 40-5-58 is an offense separate and distinct from offenses which led to a driver being declared a habitual violator. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

- In a prosecution for operating a motor vehicle after being declared a habitual violator, failure of the indictment to plead all known convictions against the defendant for driving under the influence did not result in error for fatal variance; rather, the indictment properly pled the instant violation of O.C.G.A. § 40-5-58, giving the defendant due notice of that which the defendant was to defend against and protecting the defendant from again being tried thereon, the proper measure of the defendant's entitlement. Spruell v. State, 217 Ga. App. 150, 456 S.E.2d 740 (1995).

- Effect of subsection (d) of O.C.G.A. § 40-5-58 is to create an exception to the rule of O.C.G.A. § 17-7-95, concerning the consequences of a plea of nolo contendere. This does not result in subsection (d) running afoul of the prohibition in Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see now Ga. Const. 1983, Art. III, Sec. V, Para. III) against the passage of a law referring to more than one subject matter or containing matter different from what is expressed in the title. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

Subsection (d) of O.C.G.A. § 40-5-58 does not constitute an amendment to or repeal of O.C.G.A. § 17-7-95, dealing with nolo contendere pleas generally, within the meaning of Ga. Const. 1976, Art. III, Sec. VII, Para. XII (see now Ga. Const. 1983, Art. III, Sec. V, Para. IV). Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

- After the defendant was convicted of operating a motor vehicle, while driving on a private road, after having been declared a habitual violator, and the defendant contended on appeal that because the state issues a driver's license for operation of a motor vehicle "upon a highway in this state," O.C.G.A. § 40-5-20(a), and because the statutory provisions concerning license revocation refer to "public highways," O.C.G.A. §§ 40-5-1(10) (see now O.C.G.A. § 40-5-1(16)) and40-5-121(a), the defendant could not be convicted of the charged crime, the trial court did not err since O.C.G.A. § 40-5-58, under which appellant was convicted, evinces a clear legislative intent to prohibit a person who has been declared a habitual violator and whose license has been revoked from operating a vehicle anywhere in the state. Jarrad v. State, 195 Ga. App. 704, 394 S.E.2d 555 (1990).

- "Driver's" license is needed in Georgia, by the law's definition, not only to drive, but a license is needed more broadly to operate, which includes not only driving but also being in actual physical control short of driving. Miller v. State, 202 Ga. App. 414, 414 S.E.2d 326 (1992).

- O.C.G.A. § 40-5-58 prohibits driving a vehicle after receiving notice that one's license has been revoked as a habitual violator. Hester v. State, 159 Ga. App. 642, 284 S.E.2d 659 (1981); Hyde v. State, 205 Ga. App. 754, 424 S.E.2d 39 (1992).

Once a habitual violator has been notified under O.C.G.A. § 40-5-58 it is unlawful for that person to operate a motor vehicle until that person becomes eligible for, applies for, and receives a new license, regardless of the five-year limitation. Kimbrell v. State, 164 Ga. App. 344, 296 S.E.2d 206 (1982).

Although the defendant had been able to obtain a license under a different surname, the defendant had been notified after the defendant's third DUI violation under the defendant's other surname that the defendant was prohibited from driving as a habitual violator under O.C.G.A. § 40-5-58, and the license in another name was no defense to the defendant's habitual violator status. Munna v. State, 331 Ga. App. 410, 771 S.E.2d 106 (2015).

- Regardless of possession of a driver's license from any other state, one who has had one's Georgia driver's license revoked by the Department of Public Safety can legally thereafter operate a vehicle in Georgia only if the Department reauthorizes one to do so. Goblet v. State, 174 Ga. App. 675, 331 S.E.2d 56 (1985).

Once an individual has been declared a habitual violator, one may not thereafter avoid prosecution for driving a motor vehicle in this state by merely having in one's possession an ostensibly valid license from another state. Goblet v. State, 174 Ga. App. 675, 331 S.E.2d 56 (1985).

- Conviction against the defendant for driving without a valid license after being declared a habitual violator in violation of O.C.G.A. § 40-5-58(c)(1) could not stand because at the time of an accident that the defendant was involved in, the defendant had been issued a probationary driver's license pursuant to § 40-5-58(e). Christian v. State, 297 Ga. App. 596, 677 S.E.2d 767 (2009).

- Driving with a suspended or revoked license was a lesser included offense of operating a motor vehicle after revocation of one's license as a habitual violator, when the defendant had been stopped by the police while operating an automobile on an interstate highway at a time when the defendant's Georgia driver's license was revoked due to the defendant's having been declared a habitual violator. Parks v. State, 180 Ga. App. 31, 348 S.E.2d 481 (1986).

- Because the charge of being a habitual violator operating a vehicle without a valid driver's license, O.C.G.A. § 40-5-58(c)(1), demanded a verdict of acquittal as a matter of law and the trial court erred by denying the defendant's motion for a directed verdict; the defendant was not driving without a valid driver's license because the arresting officer testified that the defendant had a probationary driver's license on the day of the arrest. Murray v. State, 315 Ga. App. 653, 727 S.E.2d 267 (2012).

- Defendant's convictions for operating a motor vehicle under the influence of alcohol while having a probationary license and driving under the influence of alcohol could not both stand since, under the facts, the latter was a lesser included offense in the violation of the probationary license offense. Williams v. State, 223 Ga. App. 209, 477 S.E.2d 367 (1996).

Convictions under both O.C.G.A. §§ 40-5-58(c) and40-6-395(b)(5)(A) were proper under O.C.G.A. § 16-1-6 as the elements of both charged offenses required different proof. Under O.C.G.A. § 40-5-58(c), the state proved that the defendant was declared an habitual violator, was properly notified of such status, and that the defendant operated a vehicle without having obtained a valid driver's license; while under O.C.G.A. § 40-6-395(b)(5)(A), proof that the driver committed a misdemeanor while fleeing or attempting to elude, that the driver was trying to escape arrest for a felony offense other than road violations, and that the driver committed one of the statutorily enumerated acts was required. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003).

§§ 40-5-58 and40-5-121 charged. - When a defendant was convicted of driving with a suspended license in violation of O.C.G.A. § 40-5-121 and was later indicted for a violation of O.C.G.A. § 40-5-58, based upon the defendant's operation of a motor vehicle after the defendant had been notified that the defendant had been declared a habitual violator, the trial court was ordered to reconsider the court's denial of the defendant's double-jeopardy plea on grounds that the same conduct established the commission of all crimes. Whaley v. State, 260 Ga. 384, 393 S.E.2d 681 (1990).

- It is not necessary that a traffic offender have a driver's license to be classified as a "habitual violator," and when such habitual violator is notified of that classification, what is suspended is the driver's right "to operate a motor vehicle in this state." Mays v. State, 190 Ga. App. 390, 378 S.E.2d 145 (1989).

- Fact that a person had obtained a driver's license did not give the person permission to drive in contravention of that person's habitual violator status. Walls v. State, 167 Ga. App. 276, 306 S.E.2d 371 (1983).

One who has been properly notified that one has been declared a habitual violator by this state can thereafter lose that status and drive in Georgia only after the passage of five years and, pursuant to an application, the Department of Public Safety has determined that it will be safe to grant that person the privilege of driving a motor vehicle on the public highways. Goblet v. State, 174 Ga. App. 675, 331 S.E.2d 56 (1985).

- Date of offense is date used for purpose of determining habitual violator status under O.C.G.A. § 40-5-58. Hardison v. Boyd, 174 Ga. App. 71, 329 S.E.2d 198 (1985).

Crucial date, insofar as habitual violator status is concerned, is the date of driving, not the date on which the status is challenged or set aside. If the person is driving despite notification that the person may not do so because the person had been declared a habitual violator, the person is flaunting the law even if one or more of the underlying convictions is voidable. State v. Bell, 182 Ga. App. 860, 357 S.E.2d 596 (1987), cert. denied, 182 Ga. App. 911, 357 S.E.2d 596 (1988).

- Defendant's five-year revocation period began when the defendant was notified of the defendant's status as a habitual violator, not on the date when the defendant was stopped for driving under the influence. England v. State, 232 Ga. App. 842, 502 S.E.2d 770 (1998).

Trial court erred in ruling that the revocation of a licensee's driver's license as a habitual violator was effective in May 2006 when the Georgia Department of Driver Services (DDS) received official notice of the licensee's December 2004 conviction on a third driving under the influence charge; the habitual violator revocation was effective in December 2004 as at that time, pursuant to O.C.G.A. § 40-5-58(b), the licensee had been advised of the licensee's habitual violator status and DDS informed the licensee that the licensee's driver's license was revoked for five years. Lokey v. Ga. Dep't of Driver Servs., 291 Ga. App. 856, 663 S.E.2d 283 (2008).

- While it is illegal for a person to drive a motor vehicle after the person has received notice of habitual violator status, the five-year period of revocation prior to application for a new license begins to run only after the license is surrendered or the license's absence accounted for. Colquitt v. State, 176 Ga. App. 371, 336 S.E.2d 306 (1985).

- Department properly used the date of a driver's affidavit stating that the driver was unable to surrender a driver's license because the driver had never received the license from the examining board as the starting point for computing the driver's eligibility for probationary license. Earp v. Jordan, 197 Ga. App. 253, 398 S.E.2d 205 (1990).

- Person may be subjected to felony punishment as a habitual violator under subsection (c) of O.C.G.A. § 40-5-58, even though offenses giving rise to the person's having been declared a habitual violator are subject to collateral attack on constitutional grounds. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982); Todd v. State, 163 Ga. App. 814, 294 S.E.2d 714 (1982).

- It is notice of one's status as a nonlicensed habitual violator, not the driving record underlying that status, that is an "essential element" of O.C.G.A. § 40-5-58, and the entire driving record of the defendant is "immaterial" to a prosecution under that section. Hester v. State, 159 Ga. App. 642, 284 S.E.2d 659 (1981); Hyde v. State, 205 Ga. App. 754, 424 S.E.2d 39 (1992).

- License's cancellation, suspension, or revocation is not required for conviction for driving too fast. A conviction for driving too fast for conditions is not a conviction which singularly, or in combination with any other offense or offenses, statutorily requires the cancellation, suspension, or revocation, or authorizes a court or the department to impose the suspension or revocation of a driver's license as required by paragraph (a)(2) of former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58). Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980).

- Evidence of defendant's felony conviction for driving a motor vehicle after having been declared a habitual traffic violator was admissible despite the defendant's contention that the conviction might suggest to the jury that the defendant was a career criminal rather than merely a habitual traffic violator, since the state agreed with the defense that the court could include in the court's instructions a definition of the offense. Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 292 (1992).

- Felony punishment may be imposed for driving after being declared a habitual violator, even if the convictions on which the habitual violator status is based are subject to collateral attack on constitutional grounds, such as not having counsel when convicted. Love v. Hardison, 166 Ga. App. 677, 305 S.E.2d 420 (1983).

- Language of former Code 1933, § 68B-312 (see now O.C.G.A. § 40-5-63(a)(3)) permitted the department to rely upon a nolo contendere accepted prior to the effective date of this article as a conviction in classifying a person as a habitual violator. Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978).

- Term "operate" does not necessarily mean drive, although the term can include drive. Miller v. State, 202 Ga. App. 414, 414 S.E.2d 326 (1992).

To "operate" means "to drive" or "to be in actual physical control." Miller v. State, 202 Ga. App. 414, 414 S.E.2d 326 (1992).

- "Valid driver's license," referred to in O.C.G.A. § 40-5-58(c), means a license which is in the possession of a former habitual violator whose privilege to operate a motor vehicle in this state has been restored by the Department of Public Safety. Goblet v. State, 174 Ga. App. 675, 331 S.E.2d 56 (1985).

- Definition of "conviction" given in former Code 1933, § 68B-101 (see now O.C.G.A. § 40-5-1(6)) clearly evidenced the legislature's intention that a bond forfeiture arising from a driving under the influence of alcohol or drug offense committed prior to the enactment of former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58) was considered a conviction for the purpose of those provisions. Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978).

O.C.G.A. § 40-5-1(4) (see now O.C.G.A. § 40-5-1(6)) treats bond forfeiture as a "conviction" for purposes of O.C.G.A. § 40-5-58. Haley v. Hardison, 247 Ga. 750, 279 S.E.2d 712 (1981).

Neither state nor federal procedural due process bars the General Assembly from defining "conviction" in O.C.G.A. § 40-5-1 to include forfeiture of bail or collateral. Haley v. Hardison, 247 Ga. 750, 279 S.E.2d 712 (1981).

§ 40-5-34(c). - Former Code 1933, § 68B-216 (see now O.C.G.A. § 40-5-34(c)) applied only when a medical condition formed the basis for not issuing or reissuing a license, not where the action of the department in revoking a driver's license was based on the driver's repeated convictions of driving while under the influence of alcohol. Camp v. Department of Pub. Safety, 241 Ga. 419, 246 S.E.2d 296 (1978).

- Felony charge of driving after having been declared a habitual violator may be tried on an accusation preferred by a district attorney rather than on an indictment returned by a grand jury. State v. Gilstrap, 230 Ga. App. 281, 495 S.E.2d 885 (1998).

Cited in State v. Gilder, 145 Ga. App. 731, 245 S.E.2d 3 (1978); State v. Gilder, 242 Ga. 285, 248 S.E.2d 659 (1978); Crosby v. State, 148 Ga. App. 215, 251 S.E.2d 81 (1978); Cofer v. Gibson, 148 Ga. App. 572, 252 S.E.2d 6 (1978); Flakes v. State, 243 Ga. 699, 256 S.E.2d 379 (1979); Kelly v. Cofer, 150 Ga. App. 24, 256 S.E.2d 635 (1979); Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979); Benton v. State, 150 Ga. App. 647, 258 S.E.2d 298 (1979); Akin v. Hardison, 245 Ga. 57, 262 S.E.2d 814 (1980); Magruder v. Cofer, 153 Ga. App. 7, 264 S.E.2d 506 (1980); Hight v. State, 153 Ga. App. 196, 264 S.E.2d 717 (1980); Moon v. State, 156 Ga. App. 877, 275 S.E.2d 813 (1981); Beasley v. State, 157 Ga. App. 94, 276 S.E.2d 144 (1981); Wallace v. State, 158 Ga. App. 338, 280 S.E.2d 385 (1981); Gilstrap v. State, 159 Ga. App. 11, 282 S.E.2d 644 (1981); Hill v. State, 159 Ga. App. 589, 284 S.E.2d 92 (1981); Rowland v. State, 161 Ga. App. 525, 289 S.E.2d 15 (1982); Sampson v. Hardison, 291 S.E.2d 134 (1982); Hardison v. Hall, 162 Ga. App. 342, 291 S.E.2d 416 (1982); Williams v. State, 162 Ga. App. 415, 291 S.E.2d 732 (1982); Noles v. State, 164 Ga. App. 191, 296 S.E.2d 768 (1982); Stewart v. State, 165 Ga. App. 62, 299 S.E.2d 134 (1983); Carroll v. Holt, 251 Ga. 144, 304 S.E.2d 60 (1983); Hunt v. State, 166 Ga. App. 524, 304 S.E.2d 576 (1983); Sultenfuss v. State, 169 Ga. App. 618, 314 S.E.2d 459 (1984); Webster v. State, 170 Ga. App. 102, 316 S.E.2d 503 (1984); Parker v. State, 170 Ga. App. 333, 317 S.E.2d 209 (1984); Luke v. State, 177 Ga. App. 518, 340 S.E.2d 30 (1986); Schofill v. State, 183 Ga. App. 251, 358 S.E.2d 651 (1987); Pitts v. State, 184 Ga. App. 220, 361 S.E.2d 234 (1987); Hale v. State, 188 Ga. App. 524, 373 S.E.2d 250 (1988); Earp v. Brown, 260 Ga. 215, 391 S.E.2d 396 (1990); Metheny v. State, 197 Ga. App. 882, 400 S.E.2d 25 (1990); Curry v. State, 206 Ga. App. 350, 425 S.E.2d 389 (1992); Turner v. State, 210 Ga. App. 303, 436 S.E.2d 229 (1993); Hastings v. State, 211 Ga. App. 873, 441 S.E.2d 83 (1994); Funderburk v. State, 221 Ga. App. 438, 471 S.E.2d 535 (1996); Lanier v. State, 238 Ga. App. 875, 517 S.E.2d 106 (1999); Tharpe v. Head, 272 Ga. 596, 533 S.E.2d 368 (2000); Dozier v. Jackson, 282 Ga. App. 264, 638 S.E.2d 337 (2006); Brantley v. State, 290 Ga. App. 764, 660 S.E.2d 846 (2008); Petway v. State, 291 Ga. App. 301, 661 S.E.2d 667 (2008); Hicks v. Gabor, 354 Ga. App. 714, 841 S.E.2d 42 (2020).

Notice

Notice provisions of section constitutional.

- Notice provisions in former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58) meet the constitutional standards of due process. Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980).

- Service of notice of revocation of a driver's license as a habitual violator under O.C.G.A. § 40-5-58 was not service of a civil process under former O.C.G.A. § 24-10-1 (see now O.C.G.A. § 24-13-1). Hill v. State, 162 Ga. App. 637, 292 S.E.2d 512 (1982).

§ 40-5-53 inapplicable. - Department's jurisdiction and authority to declare a driver a habitual offender does not depend on court's compliance with ten-day notice requirements of O.C.G.A. § 40-5-53(b) (relating to reports of convictions) but depends on the information contained within the department's files as provided by O.C.G.A. § 40-5-58(b). Hardison v. Orndorff, 173 Ga. App. 630, 327 S.E.2d 497 (1985).

- Date upon which notice was given to a habitual violator is relevant to whether the subsequent act of driving is punishable as a felony or a misdemeanor; a nonlicensed habitual violator who drives within five years of notification of that person's status as such is punishable for a felony, whereas a violator who drives more than five years after the notification is punishable for a misdemeanor. Hyde v. State, 205 Ga. App. 754, 424 S.E.2d 39 (1992).

- Since the misdemeanor offense defined in O.C.G.A. § 40-5-58(c)(1) did not contain the element of operating a motor vehicle within five years of notice of revocation, any allegations regarding the time at which the defendant committed the offense of operating a motor vehicle after revocation of the defendant's license and before issuance of a new license were unnecessary. Woody v. State, 212 Ga. App. 186, 441 S.E.2d 505 (1994).

- Provision for notice by certified mail affords due process in the administrative function of giving notice that a driver's license is revoked as a habitual violator. Weaver v. State, 242 Ga. 8, 247 S.E.2d 749 (1978).

Jury could find that the Department of Public Safety had complied with all the statutory requirements of O.C.G.A. § 40-5-58 when notice was sent by certified mail, return receipt requested, to the licensee at the licensee's last known address, and the return receipt showed that someone at that location accepted delivery of the certified letter addressed to the licensee. King v. State, 179 Ga. App. 184, 345 S.E.2d 902 (1986).

Defendant's contention that there was no evidence that the defendant received notice of the defendant's habitual violator status was without merit, since notice of the defendant's habitual violator status was sent by certified mail to the defendant's last known address and the return receipt indicates that the notice was signed for by the defendant. Johnson v. State, 194 Ga. App. 501, 391 S.E.2d 132 (1990).

Because the state provided evidence that notice of habitual violator status was sent to the defendant at the defendant's last known address and the return receipt clearly had the defendant's printed name and signature under the "received by" section of the return receipt, and because the defendant failed to rebut this evidence, the jury was authorized to conclude that the Department of Public Service complied with the statutory notice requirements. West v. State, 300 Ga. App. 583, 685 S.E.2d 486 (2009).

- Proper notice was effected after the defendant was personally served by a county police officer with the notice of revocation and declaration as a habitual offender, and personally signed that notice, and the document was returned and placed in the files of the Department of Public Safety. Stowe v. State, 176 Ga. App. 169, 335 S.E.2d 431 (1985).

After a police officer read the notice to the defendant, who in turn refused to sign the notice, and this service and refusal was witnessed by another police officer, such personal service was sufficient to satisfy the intent and notice requirements of O.C.G.A. § 40-5-58(b). Waits v. State, 194 Ga. App. 284, 390 S.E.2d 296 (1990).

- When a state trooper attempted to personally serve the defendant with an "Official Notice of Revocation" and the defendant refused to accept, the service comported with the notice requirements. Wellons v. State, 152 Ga. App. 523, 263 S.E.2d 212 (1979).

- When a state patrol officer read the defendant the contents of a request which stated that the defendant had been declared a habitual violator, told the defendant that the defendant would be unable to drive a vehicle, and that if the defendant did the defendant would be subject to imprisonment, there was sufficient compliance with the notice requirements of former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58). Cooper v. State, 156 Ga. App. 108, 274 S.E.2d 112 (1980).

- Notice relied on by the state to establish the "essential element" of notification was actively misleading insofar as the notice specified that the defendant's exposure to felony sanctions for operating a motor vehicle without a valid driver's license would last only five years; however, the notice was sufficient to support a conviction for the misdemeanor offense of driving without a license. Connelly v. State, 181 Ga. App. 261, 351 S.E.2d 702 (1986).

- Evidence was insufficient as to the habitually impaired driving charge because, as the state conceded, the defendant did not receive sufficient notice of the defendant's status as a habitual violator. Clinton v. State, 340 Ga. App. 587, 798 S.E.2d 101 (2017).

- There was sufficient evidence to convict the defendant of a habitual violator offense since a habitual violator notice revoking the defendant's driver's license was sent by registered mail to the address the defendant provided and was signed for in the defendant's name at that address, and since the defendant admitted surrendering the defendant's driver's license, and admitted knowing the defendant was not supposed to be driving. Allain v. State, 202 Ga. App. 706, 415 S.E.2d 315 (1992).

- Though the notice of revocation of licenses was materially defective in that the notice did not contain any information about the revoked licensee's right to request a departmental hearing and the licensee's subsequent appellate rights, this oversight was rendered harmless when the licensee was granted an out-of-time hearing and pursued the licensee's appellate rights by bringing the adverse department decision to the superior court. Hardison v. Booker, 179 Ga. App. 693, 347 S.E.2d 681 (1986).

Practice and Procedure

Prosecutorial discretion.

- Even if the defendant admits notice that the defendant had the legal status of habitual violator, the state is not bound to charge the defendant with a felony under O.C.G.A. § 40-5-58 and is not precluded from charging the defendant with a O.C.G.A. § 40-5-121 misdemeanor. The decision of whether to prosecute and what charges to file are decisions that rest in the prosecutor's discretion. Noeske v. State, 181 Ga. App. 778, 353 S.E.2d 635 (1987).

- An indictment on November 18, 1986, for alleged offenses occurring on May 10 and August 22, 1986, based on the operation of a motor vehicle on those dates after being declared a habitual violator on February 7, 1986, is not defective and is not subject to a motion to quash since the offenses upon which the habitual violator status was based were set aside as "null and void" on September 18, 1986, since driving a motor vehicle after revocation of a license upon being declared a habitual violator is an offense separate and distinct from the offenses which led to the driver's being declared a habitual violator. State v. Tart, 183 Ga. App. 737, 359 S.E.2d 722 (1987).

- Defendant waived the defendant's claim that the defendant should have been sentenced for a misdemeanor rather than a felony on the basis that the language of the accusation did not specify felony because the defendant's argument addressed a defect in the accusation and should have been raised by special demurrer. England v. State, 232 Ga. App. 842, 502 S.E.2d 770 (1998).

- Elements required for the offense of operating a motor vehicle after having been declared to be a habitual violator do not include any specific location in which the motor vehicle is operated; therefore, the state did not have to prove that the defendant operated a vehicle on the street named in the indictment since the location named in the indictment, with the exception of the county, is immaterial and pure surplusage. Stacey v. State, 214 Ga. App. 130, 447 S.E.2d 339 (1994).

- Indictment under subsection (c) of former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58) was not deficient if the indictment failed to set out prior convictions, but stated that the defendant was a habitual violator because this gave notice that the defendant's past record of traffic offenses will be used to prove the commission of the crime. Weaver v. State, 242 Ga. 8, 247 S.E.2d 749 (1978).

- State is not required to prove previous convictions which led to a party being declared a habitual violator. Bollen v. State, 155 Ga. App. 181, 270 S.E.2d 227 (1980); Hester v. State, 159 Ga. App. 642, 284 S.E.2d 659 (1981).

Conviction under O.C.G.A. § 40-5-58 need not be based upon proof of prior traffic offenses as such proof is immaterial in a prosecution under that section. Hester v. State, 159 Ga. App. 642, 284 S.E.2d 659 (1981).

- In determining whether appellee was a habitual violator, appellee's conviction of the offense of driving with an unlawful blood alcohol level in Florida constituted conviction of an offense "substantially conforming to an offense" in O.C.G.A. Art. 15, Ch. 6, T. 40. Hardison v. Haslam, 250 Ga. 59, 295 S.E.2d 830 (1982).

- Driver who is declared a habitual violator and who has driver's license revoked, based on three convictions for driving under the influence within five years, is not permitted to collaterally attack one's habitual violator status by attacking the validity of one of the driver's prior convictions. Love v. Hardison, 166 Ga. App. 677, 305 S.E.2d 420 (1983).

- An essential element of the offense under subsection (c) of former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58), was that the defendant operated a motor vehicle after receiving notice that the defendant's license had been revoked. On the trial of the case, the state has the burden of proving this notice. Weaver v. State, 242 Ga. 8, 247 S.E.2d 749 (1978).

In a prosecution under subsection (c) of O.C.G.A. § 40-5-58, the state has the burden of proving that the defendant was given notice of revocation of the defendant's driver's license because of the defendant having been declared a habitual violator. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

- When the defendant driver injured a pedestrian while under the influence of alcohol and lacked a license because of a previous revocation, the driver was correctly sentenced under O.C.G.A. § 40-5-58 as a habitual violator notwithstanding that the five-year license revocation period expired prior to the moment of the offense. Cody v. State, 170 Ga. App. 712, 318 S.E.2d 503 (1984).

- Plea of former jeopardy under former Code 1933, § 26-506 (see now O.C.G.A. § 16-1-7), based upon the fact that the habitual violator charge was known to the prosecuting officer to arise out of the same conduct as other offenses to which the defendant had previously pled guilty and which laid within the jurisdiction of a single court, required that the state press these matters in a single prosecution, and prohibited belatedly bringing a habitual offender charge. Carnes v. State, 242 Ga. 286, 248 S.E.2d 660 (1978).

- Conviction under O.C.G.A. § 40-5-58(c) requires no proof that the vehicle was actually moving. Mazo v. State, 224 Ga. App. 744, 481 S.E.2d 831 (1997).

Proof of operation of a vehicle for a nonbusiness purpose was not required in a prosecution for operating a motor vehicle under the influence of alcohol while having a probationary license. Williams v. State, 223 Ga. App. 209, 477 S.E.2d 367 (1996).

- Trial court correctly denied the defendant's motion for directed verdict of acquittal on the charge of habitual violator since the state submitted evidence of all material allegations by means of a properly certified document which was admissible as evidence in any civil or criminal proceeding as proof of the document's contents. Brown v. State, 201 Ga. App. 98, 410 S.E.2d 196 (1991).

- Entry into evidence of the defendant's entire driving history, which contains not only facts essential to the conviction but also irrelevant additional material, is not reversible error unless prejudice appears and it can be shown that the irrelevant material contributed to the conviction. Harper v. State, 175 Ga. App. 702, 334 S.E.2d 30 (1985).

When the state introduced, over the defendant-appellant's objection, the notice of revocation sent to the appellant, to which was attached appellant's entire driving history (exhibit 1), and two prior habitual violator convictions (exhibits 2 and 3), and each exhibit contained evidence of prior driving under the influence (DUI) convictions, and exhibit 2 also included a conviction for public indecency, appellant did not testify at trial, and the prior convictions at issue were unrelated and irrelevant to the charged crime, there was no proper purpose for admission of the public indecency and DUI convictions, thereby necessitating a reversal of the judgment. Jarrad v. State, 195 Ga. App. 704, 394 S.E.2d 555 (1990).

In a prosecution under O.C.G.A. § 40-5-58(c), the admission of the defendant's entire driving record when only a portion of the driving record is admissible is reversible error. Ragan v. State, 264 Ga. 190, 442 S.E.2d 750 (1994).

- Under O.C.G.A. § 40-5-65, possession of a valid license from another state was not a defense to a habitual violator charge and created no presumption that the defendant was authorized to drive in Georgia; since the defendant testified that the defendant never inquired about reinstating the defendant's Georgia driving privileges, the evidence supported the defendant's habitual violator conviction. Stripling v. State, 279 Ga. App. 856, 632 S.E.2d 747 (2006).

- Certified copies of records of the Department of Public Safety constituted sufficient evidence to convict the defendant of operating a motor vehicle after receiving notice that the defendant's license was revoked as a habitual violator. Hill v. State, 223 Ga. App. 493, 478 S.E.2d 406 (1996).

Evidence, including the fact that the defendant's driving was unrelated to the limited lawful purposes of a habitual violator's probationary driver's license, was sufficient to sustain conviction. Kingree v. State, 228 Ga. App. 71, 491 S.E.2d 123 (1997).

Defendant's admissions that the defendant was at a bar with the defendant's car and too drunk to remember how the defendant got home the evening before the defendant's arrest and proof that the defendant's car was wrecked within a block and a half of the defendant's home, that the defendant had possession of the defendant's car keys shortly after the collision, and that the defendant's driver's license had been revoked based on the defendant's status as a habitual violator at the time of the collision was sufficient to find the defendant guilty of violating O.C.G.A. § 40-5-58(c)(1). Sams v. State, 239 Ga. App. 715, 521 S.E.2d 848 (1999).

Evidence that the defendant's license was revoked in 1989, that the license was never reinstated or renewed, and that the defendant drove an automobile on April 9, 1998, without a valid license, was sufficient for conviction. Brady v. State, 241 Ga. App. 387, 527 S.E.2d 214 (1999).

Defendant was properly convicted of causing death while operating a vehicle after having been declared a habitual violator (O.C.G.A. § 40-6-393(c)) although the defendant was eligible to apply for a license under O.C.G.A. § 40-5-62(a)(1), the failure to apply for reinstatement of the license after five years elapsed meant that the revocation remained in effect. Greene v. State, 278 Ga. App. 848, 630 S.E.2d 123 (2006).

- Jury is not required to accept the defendant's explanation that an emergency required the defendant to drive on the occasion in question. Cape v. State, 165 Ga. App. 825, 303 S.E.2d 77 (1983).

- Testimony that the defendant drove an automobile coupled with evidence that the defendant's driver's license had been revoked as a habitual offender is sufficient to authorize a rational jury to find guilt beyond a reasonable doubt. Hester v. State, 159 Ga. App. 642, 284 S.E.2d 659 (1981).

- When the defendant was arrested for driving without a license after an earlier revocation of the defendant's license for being a habitual violator, it was not error for the trial court to charge the jury upon the habitual offender offense alleged in the indictment. Kelly v. State, 182 Ga. App. 7, 354 S.E.2d 647 (1987).

Supersedeas does not stay delivery of the defendant's driver's license to Department of Public Safety following the defendant's driving under the influence conviction. Arnold v. State, 163 Ga. App. 94, 292 S.E.2d 891 (1982).

Sentence and Appeal

Crime of moral turpitude.

- Violation of O.C.G.A. § 40-5-58 reflects a callous and repeated disregard for the safety and welfare of other people, conviction for which is a crime of moral turpitude within the meaning of Ga. Const. 1983, Art. II, Sec. I, Para. III(a). Jarrard v. Clayton County Bd. of Registrars, 262 Ga. 759, 425 S.E.2d 874 (1993), overruled on other grounds, Cook v. Board of Registrars, 291 Ga. 67, 727 S.E.2d 478 (2012).

Former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58) was not a recidivist statute. Bollen v. State, 155 Ga. App. 181, 270 S.E.2d 227 (1980).

Subsection (c) of former Code 1933, § 68B-308 (see now O.C.G.A. § 40-5-58), was not a recidivist statute and in a prosecution under that section it was not necessary to prove the defendant's prior convictions. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

- Habitual violator statute allowing for the consideration of offenses which occurred before the enactment of the statute 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).

- Appellate court erred in affirming the trial court's ruling that the trial court could consider the defendant's prior convictions in sentencing the defendant as the state conceded at the sentencing hearing before the trial court that the prior convictions, based on guilty pleas, could not be used to enhance the defendant's sentence because the convictions were uncounseled, and, thus, only offered the prior convictions for the trial court to consider how much of the defendant's sentence should be probated. Thompson v. State, 276 Ga. 701, 583 S.E.2d 14 (2003).

- Mandatory one-to-five-year sentence for driving with revoked license is neither barbaric nor excessive under the federal Constitution. Cox v. State, 241 Ga. 154, 244 S.E.2d 1 (1978).

Trial court properly upheld the decision of the Georgia Department of Driver Services (DDS) revoking a driver's license as of September 11, 2007, based on the driver's status as a habitual offender under O.C.G.A. § 40-5-58(b) due to the driver's 2004 convictions for vehicular homicide, driving under the influence, racing, and failure to maintain lane and DDS' determination that the five-year revocation period commenced from that date as the five-year period could not be reduced by the driver's incarceration time. While the driver's license may have been held by the Department of Corrections while the driver was incarcerated, the five-year revocation period was not subject to reduction by that time because the driver had not been declared a habitual violator by DDS until September 11, 2007. Eason v. Dozier, 298 Ga. App. 65, 679 S.E.2d 89 (2009), cert. denied, No. S09C1605, 2009 Ga. LEXIS 794 (Ga. 2009).

- Court had authority to impose as a condition of probation the requirement that the defendant wear a fluorescent pink plastic bracelet imprinted with the words "D.U.I. CONVICT." Such requirement did not impose cruel and unusual punishment or deprive the defendant of equal protection and the condition was not an impermissibly indeterminate condition. Ballenger v. State, 210 Ga. App. 627, 436 S.E.2d 793 (1993).

- Georgia scheme of administrative appeal and de novo review in the superior court meets due process hearing requirements of the state and federal Constitutions. Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980).

- Person whose driver's license has been revoked under O.C.G.A. § 40-5-58 by the Department of Public Safety has a right to obtain administrative review of the department decision followed by a de novo appeal to superior court. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

- Revocation of a license pursuant to former Code 1933, § 68B-303 (see now O.C.G.A. § 40-5-58) was clearly not a criminal sentence. Cofer v. Hawthorne, 154 Ga. App. 875, 270 S.E.2d 84 (1980).

- Defendant did not object at trial to the Georgia Department of Public Safety documents that were admitted to show the defendant's receipt of notice that the defendant's license had been suspended as a habitual violator nor did the defendant object to any failure of the Department to meet the relevant statutory requirements; thus, the defendant waived argument on appeal concerning their admission into evidence. Keller v. State, 271 Ga. App. 79, 608 S.E.2d 697 (2004).

- As a violation of O.C.G.A. § 40-5-58(c)(1) (operating a vehicle by a habitual offender whose license has been revoked) is punishable by one to five years' imprisonment, the offense is a felony. Since a defendant had four prior convictions for violations of § 40-5-58(c)(1), the defendant was properly sentenced as a recidivist under O.C.G.A. § 17-10-7(c). Hollis v. State, 295 Ga. App. 529, 672 S.E.2d 487 (2009).

- When the driver was declared a habitual violator under provisions of former Code 1933, § 68B-308(a), then was convicted for operating a motor vehicle while the person's license was still revoked pursuant to that action, after the Official Code of Georgia Annotated became effective on November 1, 1982, the revocation of the driver's license was effected "under this Code section" within the meaning of O.C.G.A. § 40-5-58(c), and the driver could be sentenced to a five-year confinement pursuant to that. Ketchum v. State, 167 Ga. App. 858, 307 S.E.2d 742 (1983).

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.