ALS and Implied Consent is a complicated subject.  You should always consult an attorney after a DUI arrest especially if you have been given notice of an Administrative License Suspension.  Below is a list of some of the most common questions related to this subject:

How is the Administrative Hearing different from the trial of my case? 

The administrative license suspension process is handled separately from the prosecution of the criminal charge and may result in a driver losing his or her driving privilege before the criminal charge is resolved.  The ruling made by the Administrative Law Judge in an ALS hearing does not affect the prosecution of the criminal charge, even if the administrative law judge reverses the suspension.  A conviction for DUI will result in a separate suspension of the driving privilege.  O.C.G.A. 40-5-63(a) or 40-5-58.  However, the defendant is entitled to credit the period of the administrative suspension toward satisfaction of the suspension for the conviction.  O.C.G.A. 40-5-67.2(b).

What is Implied Consent?

When a driver is arrested for driving under the influence, the arresting officer reads the violator the appropriate implied consent notice and asks him or her to submit to a test of his or her blood, breath or urine for the purpose of determining whether he or she is under the influence of alcohol or drugs. The language of the implied consent notice is found in O.C.G.A. 40-5-67 (b) and is copied on the implied consent cards used by law enforcement officer.  The current cards are orange.

How do I know if I have a pending ALS suspension?

The officer takes possession of the driver’s license, and the Form 1205 contains a thirty-day temporary driving permit for the driver to carry in lieu of his or her license.  O.C.G.A. 40-5-67.  If the defendant does not appeal the suspension, it will go into effect thirty days from the date the Form 1205 is issued to the driver by the officer.

How do I contest an ALS suspension?

You have ten days to respond to notice of an ALS suspension and send in the required filing fee.  There is a $150.00 filing fee that must be sent with the appeal.  The date on which the appeal is postmarked rather than the date on which it is mailed, is determinative of its timeliness.  If you do not respond within 10 days, your license will be suspended.  If you do respond then a hearing will be scheduled in front of an Administrative Law Judge.  This will be in a different “court” then where your actual DUI case will be heard.  Typically, this administrative hearing will be heard prior to your actual court date.

How long will the ALS suspension last?

This Administrative License Suspension per se DUI (based upon BAC over .08) is for one year with early reinstatement allowed after 30 days.  ALS suspensions based upon refusals will last one year.  No permit is allowed and no early reinstatement.

What happens at the Administrative License Hearing

The DDS sends the Defendants appeal to the Office of State Administrative Hearings (OSAH) and the suspension effective date is delayed until the appeal is resolved.  DDS then issues a 90-day extension of the temporary driving permit and further extensions can be granted.  At the hearing, the case will be heard by an Administrative Law Judge and he arresting officer will represent DDS.  Many attorneys negotiate resolutions to both the administrative suspension and the pending criminal case while meeting with the officer at the ALS hearing.  The officer can withdraw the Form 1205 if an agreement is reached.  If an agreement is not reached then a hearing will be held.

What is the State’s Burden of Proof at the ALS hearing

In assessing whether the defendant’s driver’s license was suspended properly, the Administrative Law Judge must determine that the arresting officer has proven the following four elements: DUI arrest, correct implied consent read, test or refusal and if test the per se results.  If all was done properly, the Judge will issue a suspension.

What happens if my license is suspended at the ALS hearing but my case is later dismissed or I win at trial?

The ALS suspension ends upon proper notice by the trial court.  The defendant can then go to DDS and have their license returned.

Posted on: 1 Aug, 2012          under: Criminal Law, DUI