2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 5 - Drivers' Licenses
Article 3A - Suspension of License for Being in Control of a Moving Vehicle Under the Influence of a Controlled Substance or Marijuana
§ 40-5-75. Suspension of Licenses by Operation of Law; Reinstatement

1. The driver's license of any person convicted of driving or being in actual physical control of any moving vehicle while under the influence of a controlled substance or marijuana in violation of paragraph (2), (4), or (6) of subsection (a) of Code Section 40-6-391, or the equivalent law of any other jurisdiction, shall by operation of law be suspended, and such suspension shall be subject to the following terms and conditions:
   1. Upon the first conviction of any such offense, with no arrest and conviction of and no plea of nolo contendere accepted to such offense within the previous five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be for not less than 180 days. At the end of 180 days, the person may apply to the department for reinstatement of his or her driver's license. Such license shall be reinstated only if the person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and pays to the department a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail;
   2. Upon the second conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, the period of suspension shall be for three years, provided that after one year from the date of the conviction, the person may apply to the department for reinstatement of his or her driver's license by submitting proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and paying to the department a restoration fee of $310.00 or $300.00 when such reinstatement is processed by mail; and
   3. Upon the third or subsequent conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, such person shall be considered a habitual violator, and such person's license shall be revoked as provided for in Code Section 40-5-58. A driver's license suspension imposed under this paragraph shall run concurrently with and shall be counted toward the fulfillment of any period of revocation imposed directly under Code Sections 40-5-58 and 40-5-62, provided that such revocation arose from the same act for which the suspension was imposed.
2. Except as provided in Code Section 40-5-76, whenever a person is convicted of driving or being in actual physical control of any moving vehicle while under the influence of a controlled substance or marijuana in violation of paragraph (2), (4), or (6) of subsection (a) of Code Section 40-6-391, or the equivalent law of any other jurisdiction, the court in which such conviction is had shall require the surrender to it of any driver's license then held by the person so convicted, and the court shall thereupon forward such license and a copy of its order to the department within ten days after the conviction. The periods of suspension provided for in this Code section shall be governed by subsection (e) of Code Section 40-5-61.
3. Application for reinstatement of a driver's license under paragraph (1), (2), or (3) of subsection (a) of this Code section shall be made on such forms as the commissioner may prescribe and shall be accompanied by proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail. Application for a three-year driving permit under paragraph (3) of subsection (a) of this Code section shall be made on such form as the commissioner may prescribe and shall be accompanied by proof of completion of an approved residential drug treatment program and a fee of $25.00 for such permit.
4. Reserved.
5. Except as provided in subsection (a) of this Code section, it shall be unlawful for any person to operate any motor vehicle in this state after such person's license has been suspended pursuant to this Code section if such person has not thereafter obtained a valid license. Any person who is convicted of operating a motor vehicle before the department has reinstated such person's license or issued such person a three-year driving permit shall be punished by a fine of not less than $750.00 nor more than $5,000.00 or by imprisonment in the penitentiary for not more than 12 months, or both.
6. Licensed drivers who are 16 years of age who are adjudicated in a juvenile court pursuant to this Code section may, at their option, complete a DUI Alcohol or Drug Use Risk Reduction Program or an assessment and intervention program approved by the juvenile court.
7. 1. 1. Effective July 1, 2016, the department shall be authorized to reinstate, instanter, a driver's license that was suspended pursuant to this Code section for a violation of Article 2 of Chapter 13 of Title 16, or the equivalent law of any other jurisdiction, that occurred prior to July 1, 2015, provided that the driver's license has not been previously reinstated. The provisions of this subparagraph shall not apply to a suspension imposed pursuant to this Code section for a violation of paragraph (2), (4), or (6) of subsection (a) of Code Section 40-6-391, or the equivalent law of any other jurisdiction, that occurred prior to July 1, 2015, unless ordered by a judge presiding in a drug court division, mental health court division, veterans court division, or operating under the influence court division in accordance with subsection (a) of Code Section 40-5-76.
      2. Effective July 1, 2017, the department shall be authorized to reinstate, instanter, a driver's license that was suspended pursuant to this Code section for a violation of Article 1 of Chapter 13 of Title 16, or the equivalent law of any other jurisdiction, that occurred prior to July 1, 2015, provided that the driver's license has not been previously reinstated. The provisions of this subparagraph shall not apply to a suspension imposed pursuant to this Code section for a violation of paragraph (2), (4), or (6) of subsection (a) of Code Section 40-6-391, or the equivalent law of any other jurisdiction, that occurred prior to July 1, 2015, unless ordered by a judge presiding in a drug court division, mental health court division, veterans court division, or operating under the influence court division in accordance with subsection (a) of Code Section 40-5-76.
   2. The department shall make a notation of a suspended driver's license that is reinstated pursuant to paragraph (1) of this subsection on a person's driving record, and such information shall be made available in accordance with Code Section 40-5-2.
   3. The driver's license or driving privileges of any person who has a driver's license reinstated in accordance with paragraph (1) of this subsection shall remain subject to any and all applicable disqualifications specified in Article 7 of this chapter.
   4. The department may promulgate rules and regulations as are necessary to implement this subsection.

(Code 1981, §40-5-75, enacted by Ga. L. 1990, p. 1149, § 1; Ga. L. 1990, p. 1097, § 1.5; Ga. L. 1991, p. 1767, § 1; Ga. L. 1992, p. 779, § 25; Ga. L. 1992, p. 2785, § 13; Ga. L. 1994, p. 97, § 40; Ga. L. 1994, p. 730, §§ 3-5; Ga. L. 1997, p. 143, § 40; Ga. L. 2000, p. 20, § 23; Ga. L. 2000, p. 951, § 5-39; Ga. L. 2004, p. 471, § 7; Ga. L. 2005, p. 334, § 17-16/HB 501; Ga. L. 2006, p. 449, § 11/HB 1253; Ga. L. 2007, p. 47, § 40/SB 103; Ga. L. 2007, p. 117, § 1/HB 419; Ga. L. 2009, p. 679, § 7/HB 160; Ga. L. 2010, p. 932, § 15/HB 396; Ga. L. 2011, p. 355, § 10/HB 269; Ga. L. 2013, p. 222, § 15/HB 349; Ga. L. 2013, p. 294, § 4-47/HB 242; Ga. L. 2015, p. 60, § 4-18/SB 100; Ga. L. 2016, p. 443, § 4-7/SB 367; Ga. L. 2017, p. 608, § 4/SB 176; Ga. L. 2017, p. 774, § 40/HB 323; Ga. L. 2020, p. 345, § 1/HB 799.)

The 2016 amendment, effective July 1, 2016, inserted "'three-year driving" throughout; in subsection (a), added a comma following "Code Section 40-6-391", and inserted "equivalent" in the middle of the introductory language, added the second sentence in paragraph (a)(3), and, in the ending paragraph, inserted "such" in the first sentence, substituted "three-year driving permit" for "limited driving permit" in the third sentence, and added the last sentence; in subsection (b), inserted a comma following "Code Section 40-6-391", inserted "equivalent" in the first sentence, and substituted "be governed by subsection (e) of Code Section 40-5-61" for "begin on the date of surrender of the driver's license or on the date that the department processes the conviction or citation, whichever shall first occur" in the last sentence; substituted "(1), (2), or (3)" for "(1) or (2)" near the beginning of first sentence of subsection (c); and substituted the present provisions of subsection (g) for the former provisions, which read: "Notwithstanding any other provision of this chapter to the contrary, the suspension imposed pursuant to this Code section shall be in addition to and run consecutively to any other suspension imposed by the department at the time of the conviction that results in said suspension. If the person has never been issued a driver's license in the State of Georgia or holds a driver's license issued by another state, the person shall not be eligible for a driver's license for the applicable period of suspension following his or her submission of an application for issuance thereof."

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, rewrote paragraph (a)(3); designated the existing provisions of paragraph (g)(1) as subparagraph (g)(1)(A); in subparagraph (g)(1)(A), substituted "Effective July 1, 2016," for "Upon July 1, 2016," at the beginning of the first sentence, in the second sentence, substituted "subparagraph" for "paragraph" near the beginning and inserted "other" near the middle; and added subparagraph (g)(1)(B). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "Effective July 1, 2016," for "Upon July 1, 2016," at the beginning of paragraph (g)(1).

The 2020 amendment, effective July 29, 2020, substituted "Reserved." for "Notwithstanding any other provision of this Code section or any other provision of this chapter, any person whose license is suspended pursuant to this Code section shall not be eligible for early reinstatement of his or her license and shall not be eligible for a limited driving permit, but such person's license shall be reinstated only as provided in this Code section or Code Section 40-5-76." in subsection (d).

- Pursuant to Code Section 28-9-5, in 1994, in the first sentence in subsection (b), "paragraph (2), (4), or (6)" was substituted for "paragraphs (2), (4), or (6)."

Pursuant to Code Section 28-9-5, in 2016, "July 1, 2016" was substituted for "the effective date of this subsection" in paragraph (g)(1) (now subparagraph (g)(1)(A)).

- Ga. L. 1990, p. 1097, § 2, not codified by the General Assembly, provides that subsection (h) applies to all adjudications on or after July 1, 1990.

Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2015, p. 60, § 6-1/SB 100, not codified by the General Assembly, provides that: "Section 4-9 of Part IV of this Act shall become effective on January 1, 2016, and all other parts of this Act shall become effective on July 1, 2015, and shall apply to offenses which occur on or after that date."

- For annual survey on criminal law and procedure, see 44 Mercer L. Rev. 165 (1992). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 139 (2016). For note on 1990 enactment of this Code section, see 7 Ga. St. U.L. Rev. 337 (1990). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 126 (1992).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 40-5-75 does not violate the due process or equal protection clauses of the United States or Georgia Constitutions. Quiller v. Bowman, 262 Ga. 769, 425 S.E.2d 641, cert. denied, 510 U.S. 818, 114 S. Ct. 72, 126 L. Ed. 2d 41 (1993).

Construction with O.C.G.A. § 17-10-7. - Because O.C.G.A. § 40-5-75 is a recidivist statute and not a habitual traffic offense violator statute it should be construed together with the general recidivist statute, O.C.G.A. § 17-10-7, such that multiple counts of a single indictment are deemed as a single conviction. Bowman v. Griffith, 204 Ga. App. 851, 420 S.E.2d 795 (1992).

- Defendant who is given first offender treatment has not been "convicted" within the meaning of O.C.G.A. § 40-5-75 and mandatory driver's license suspension is not required. Priest v. State, 261 Ga. 651, 409 S.E.2d 657 (1991).

- Trial court did not err by reducing the suspension of the defendant's license to 180 days since it was undisputed that the defendant had no prior conviction of possession of a controlled substance or marijuana and therefore the three-year suspension for recidivists was inapplicable. Bowman v. Griffith, 204 Ga. App. 851, 420 S.E.2d 795 (1992).

- Since, in most cases, a driver must wait a minimum of 30 days after the driver's license is suspended before applying for reinstatement and, in some cases, up to five years, a police officer was not required to verify that the information the officer received within the few weeks preceding a stop regarding the suspension of the driver's license was still accurate before making a brief stop of the car. State v. Harris, 236 Ga. App. 525, 513 S.E.2d 1 (1999).

- Assuming arguendo that the defendant's license was suspended for only 120 days, and the defendant did not have to wait to reapply for reinstatement for 180 days under O.C.G.A. §§ 40-5-63 and40-5-75, the defendant was pulled over and arrested 122 days after the suspension, which was the first business day on which the defendant could have applied for reinstatement under § 40-5-63(a)(1), and based on that timeline, it was reasonable for the officers to believe the defendant had not yet applied for reinstatement, especially in light of the fact that the officers knew the defendant had not even appeared for the DUI hearing that caused the suspension, thus, the suspended license provided a valid basis for the traffic stop. United States v. Woods, F.3d (11th Cir. July 2, 2010)(Unpublished).

- Letters to the department that were not on forms prescribed by the commissioner, were not accompanied by proof of completion of a risk reduction program, and were not accompanied by a restoration fee did not constitute applications for reinstatement. Department of Pub. Safety v. Schueman, 243 Ga. App. 369, 532 S.E.2d 487 (2000).

After a second conviction of violating the Georgia Controlled Substances Act, O.C.G.A. § 16-13-1 et seq., for an application for reinstatement to initiate the start of a new suspension, it is not required that the applicant must be eligible for reinstatement from the prior suspension. Department of Pub. Safety v. Schueman, 243 Ga. App. 369, 532 S.E.2d 487 (2000).

Additional penalties called for in O.C.G.A. §§ 15-21-100 and 40-5-75 are to be imposed upon convictions for drug-related felonies and misdemeanors. 1990 Op. Att'y Gen. No. U90-21.

RESEARCH REFERENCES

ALR.

- Validity and application of statute or regulation authorizing revocation or suspension of driver's license for reason unrelated to use of, or ability to operate, motor vehicle, 18 A.L.R.5th 542.