2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 5 - Drivers' Licenses
Article 3 - Cancellation, Suspension, and Revocation of Licenses
§ 40-5-67. Seizure and Disposition of Driver's License of Persons Charged With Driving Under the Influence; Issuance of Temporary Driving Permit; Disposition of Cases

1. Whenever any resident or nonresident person is charged with violating Code Section 40-6-391, the law enforcement officer shall take the driver's license of the person so charged. The driver's license shall be attached to the court's copy of the uniform traffic citation and complaint form and shall be forwarded to the court having jurisdiction of the offense. A copy of the uniform traffic citation and complaint form shall be forwarded, within ten days of issue, to the department. Taking the driver's license as required in this Code section shall not prohibit any law enforcement officer or agency from requiring any cash bond authorized by Article 1 of Chapter 6 of Title 17.
2. 1. At the time the law enforcement officer takes the driver's license, the officer shall issue a temporary driving permit to the person as follows:
      1. If the driver refuses to submit to a test or tests to determine the presence of alcohol or drugs as required in Code Section 40-5-55, the officer shall issue a 45 day temporary driving permit;
      2. If the driver's license is required to be suspended under Code Section 40-5-67.1, the officer shall issue a 45 day temporary driving permit; or
      3. If the test or tests administered pursuant to Code Section 40-5-55 indicate an alcohol concentration in violation of Code Section 40-6-391 but less than the level for an administrative suspension of the license under subsection (c) of Code Section 40-5-67.1, the officer shall issue a 180 day temporary driving permit.
   2. A temporary driving permit issued under this subsection shall be valid for the stated period or until the person's driving privilege is suspended or revoked under any provision of this title. The department, at its sole discretion, may delay the expiration date of such temporary driving permit, but in no event shall this delay extend beyond the date when such person's driving privilege is suspended or revoked under any provision of this title. The department shall by rules and regulations establish the conditions under which the expiration of a temporary driving permit may be delayed.
3. 1. If the person is convicted of violating or enters a plea of nolo contendere to a charge of violating Code Section 40-6-391, the court shall, within ten days, forward the person's driver's license and the record of the disposition of the case to the department. At this time, the court shall also require the person to surrender the temporary driving permit issued pursuant to subsection (b) of this Code section.
   2. If the person is not convicted of violating and does not enter a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the court is in possession of the driver's license, the court shall return the driver's license to the person unless the license is in suspension for any other offense, in which case the court shall forward the license to the department for disposition.

(Code 1981, §40-5-69, enacted by Ga. L. 1983, p. 1000, § 1; Code 1981, §40-5-67, as redesignated by Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2564, § 5; Ga. L. 1994, p. 1600, § 2; Ga. L. 1997, p. 760, § 19; Ga. L. 2000, p. 951, § 5-28; Ga. L. 2016, p. 323, § 1-3/HB 205.)

The 2016 amendment, effective July 1, 2017, designated the existing provisions of the introductory paragraph of subsection (b) as paragraph (b)(1); redesignated former paragraphs (b)(1) through (b)(3) as present subparagraphs (b)(1)(A) through (b)(1)(C), respectively; substituted "45 day" for "30 day" in subparagraphs (b)(1)(A) and (b)(1)(B); designated the ending paragraph of subsection (b) as paragraph (b)(2), and, in paragraph (b)(2), in the first sentence, substituted "A temporary" for "This temporary" at the beginning, and inserted "issued under this subsection", substituted "such temporary" for "the temporary" in the second sentence, and substituted "expiration of a temporary driving permit" for "expiration of the temporary permit" in the last sentence.

- Ga. L. 1994, p. 1600, § 11, not codified by the General Assembly, provides that the provisions of the Act shall apply only to cases arising out of arrests occurring on or after January 1, 1995, except that the provisions amending subsection (a) of Code Section 40-6-391.1, restricting the acceptance of a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the provisions amending subsection (c) of Code Section 40-6-391, changing the criminal penalties for violations of the section, shall become effective July 1, 1994, and except that the provisions amending subsection (g) of Code Section 40-5-67.1, relating to the time for requesting a hearing on an administrative suspension, the stay of a suspension pending such hearing, and the early termination of an administrative suspension under certain conditions shall apply to cases pending on July 1, 1994.

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

Ga. L. 1997, p. 760, § 27, not codified by the General Assembly, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and shall not apply to offenses committed prior to that date.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992). For note, "Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-English-Speaking Drivers," see 54 Mercer L. Rev. 1253 (2003).

JUDICIAL DECISIONS

Double jeopardy.

- Suspension of a driver's license at an administrative hearing is not punishment, nor is the hearing a prosecution for the purposes of double jeopardy. Kirkpatrick v. State, 219 Ga. App. 307, 464 S.E.2d 882 (1995).

- Defendant's constitutional claims to the implied consent statutes were without merit since the defendant, a Spanish speaking person, was not similarly situated to a hearing impaired person and, although similarly situated to an English speaking person, there was a rational basis for requiring the implied consent warnings to be read in English. Rodriguez v. State, 275 Ga. 283, 565 S.E.2d 458 (2002).

- Plaintiff, whose license was confiscated by an officer at the time of arrest for DUI and who was issued a citation allowing the plaintiff to drive pending resolution of the plaintiff's case, did not have standing to challenge the administrative suspension procedures established by O.C.G.A. § 40-5-67.1. McGraw v. State, 230 Ga. App. 843, 498 S.E.2d 314 (1998).

- Upon conviction for driving under the influence, the defendant was properly required to surrender the defendant's driver's license and temporary permit to the trial court pending appeal; the seizure and forwarding of the license to the Department of Public Safety was not part of the defendant's sentence or a condition of the defendant's bond but a requirement imposed by statute on the court. Wells v. State, 212 Ga. App. 15, 440 S.E.2d 692 (1994).

Due process was not violated by the failure to return the defendant's plastic license following a license suspension hearing which was resolved in defendant's favor since the rationale for confiscation of the license in the first place was a pending charge under O.C.G.A. § 40-6-391. Wright v. State, 228 Ga. App. 717, 492 S.E.2d 581 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code Section 40-5-69, which was renumbered as Code Section 40-5-67 by Ga. L. 1990, p. 2048, § 4, are included in the annotations for this Code section.

- Georgia law requires that, when a non-resident is convicted of driving under the influence, the court forward the non-resident's driver's license to the Georgia Department of Public Safety with the license to be forwarded to the non-resident's home state along with the record of conviction and record of any action taken by the Department of Public Safety. 1986 Op. Att'y Gen. No. U86-15 (decided under former § 40-5-69).

Georgia law requires that, when a non-resident person is charged with driving under the influence, the arresting officer is to take the driver's license, attach the license to the court's copy of the citation, and forward the license to the appropriate court as would be done with a Georgia driver. 1986 Op. Att'y Gen. No. U86-16 (decided under former § 40-5-69).

Defense to Charge of Driving Under the Influence of Alcohol, 17 POF2d 1.

Negligent Failure to Detain Intoxicated Motorist, 1 POF3d 545.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Breath Alcohol Testing, 4 POF3d 229.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 POF3d 459.