Drug Possession Charges and the New Landscape of License Suspensions (or Lack Thereof)

Every July brings certain things: a celebration of our Nation’s independence, fireworks, the mid-point to summer vacation, and changes to Georgia law.  This past July 1, 2015, was no different, so make sure you are up-to-date on the latest changes.  For example, prior to July 1, 2015, under the former version of O.C.G.A. § 40-5-75 (2014), a plea or conviction to the crime of possession of marijuana (misdemeanor or felony) resulted in the automatic suspension of a person’s driver’s license, even if the offense did not involve the operation of a vehicle.  However, with the passage of House Bill 283 and Senate Bill 100, as of July 1, 2015, if a person is charged with possession of marijuana (or other specific charges as cited in the code) and a vehicle was not involved in the commission of the alleged crime, that person no longer faces the loss of their driver’s license.  O.C.G.A. § 40-5-75 (2015), as amended.  For complete review of the updated law as it relates to license suspensions and possession charges, see a partial listing of the revised law as implemented on July 1, 2015, below:

“Sb 100 Motor Vehicles and Traffic; provide for applicability with current federal reg. in the safe operations of motor carriers and commercial motor vehicles

Senate Bill 100

By: Senators Harper of the 7th, Albers of the 56th, Williams of the 19th, Dugan of the 30th, Seay of the 34th and others

AS PASSED

A BILL TO BE ENTITLED AN ACT

To amend Article 2 of Chapter 3 of Title 3 of the Official Code of Georgia Annotated, relating to prohibited acts regarding the regulation of alcoholic beverages generally, so as to repeal certain provisions for driver’s license suspensions not directly related to traffic safety; to amend Article 1 of Chapter 11 of Title 19 of the Official Code of Georgia Annotated, relating to the Child Support Recovery Act, so as to require certain notifications to delinquent obligors; to amend Chapter 2 of Title 20 of the Official Code of Georgia Annotated, relating to elementary and secondary education, so as to revise certain reporting requirements by the Department of Education to the Department of Driver Services; to amend Title 40 of the Official Code of Georgia Annotated, relating to motor vehicles and traffic, so as to revise provisions regarding licensing for the operation of motor vehicles and the operation of motor vehicles; to provide for applicability with current federal regulations in the safe operations of motor carriers and commercial motor vehicles; to provide for definitions; to provide for registration and regulation of for-hire intrastate motor carriers and intrastate motor carriers; to provide for the dissemination of certain information by the Department of Driver Services; to provide for participation in an anatomical gift donation program when obtaining a personal identification card through the department; to provide for the designation of such participation on personal identification cards; to provide for the dissemination of identifying information for applicants making such election; to repeal certain provisions for driver’s license suspensions not directly related to traffic safety; to provide for a waiver of the application fee for instruction permits in certain instances; to provide for legislative findings; to provide for the use of paper eye charts for the testing of noncommercial driver’s vision; to provide for the issuance of limited driving permits to noncommercial drivers in certain instances; to change provisions relating to a plea of nolo contendere; to prohibit the offering of items of monetary value for the enrollment of students by any driver improvement clinic or DUI Alcohol or Drug Use Risk Reduction Program licensed by the department; to allow photographs on drivers’ licenses and identification cards to be in black and white; to provide for the conditions under which limited driving permits shall be issued; to allow photographs on drivers’ licenses and identification cards to be in black and white; to provide for related matters; to provide for effective dates and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

. . .

SECTION 4-18.

Said title is further amended by revising Code Section 40-5-75, relating to suspension of licenses by operation of law, as follows:

“40-5-75.
(a) 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 Except as provided in Code Section 40-5-76, the driver’s license of any person convicted of any violation of Article 2 of Chapter 13 of Title 16, the ‘Georgia Controlled Substances Act,’ including, but not limited to, possession, distribution, manufacture, cultivation, sale, transfer of, trafficking in, the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, transfer or traffic in a controlled substance or marijuana , in violation of paragraph (2), (4), or (6) of subsection (a) of Code Section 40-6-391 or the 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 . For purposes of this paragraph, a plea of nolo contendere by a person to a charge of any drug related offense listed in this subsection shall, except as provided in subsection (c) of this Code section, constitute a conviction ;
(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 . For purposes of this paragraph, a plea of nolo contendere and all previous pleas of nolo contendere within such five-year period of time shall constitute a conviction ; 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’s license shall be suspended for a period of five years. At the end of two years, the person may apply to the department for a three-year driving permit upon compliance with the following conditions:

(A) Such person has not been convicted or pleaded nolo contendere to any drug related offense, including driving under the influence, for a period of two years immediately preceding the application for such permit;
(B) Such person submits proof of completion of a licensed drug treatment program. Such proof shall be submitted within two years of the license suspension and prior to the issuance of the permit. Such licensed drug treatment program shall be paid for by the offender. The offender shall pay a permit fee of $25.00 to the department;
(C) Such person submits proof of financial responsibility as provided in Chapter 9 of this title; and
(D) Refusal to issue such permit would cause extreme hardship to the applicant. For the purposes of this subparagraph, the term ‘extreme hardship’ means that the applicant cannot reasonably obtain other transportation, and, therefore, the applicant would be prohibited from:

(i) Going to his or her place of employment or performing the normal duties of his or her occupation;
(ii) Receiving scheduled medical care or obtaining prescription drugs;
(iii) Attending a college or school at which he or she is regularly enrolled as a student; or
(iv) 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.

Any permittee who is convicted of violating any state law or local ordinance relating to the movement of vehicles or any permittee who is convicted of violating the conditions endorsed on his or her permit shall have his or her permit revoked by the department. Any court in which such conviction is had shall require the permittee to surrender the permit to the court, and the court shall forward it to the department within ten days after the conviction, with a copy of the conviction. Any person whose limited driving permit has been revoked shall not be eligible to apply for a driver’s license until six months from the date such permit was surrendered to the department. At the end of five years from the date on which the license was suspended, 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 $410.00 or $400.00 when such reinstatement is processed by mail. For purposes of this paragraph, a plea of nolo contendere and all previous pleas of nolo contendere within such five-year period of time shall constitute a conviction.

(a.1) Any permittee who is convicted of violating any state law or local ordinance relating to the movement of vehicles or any permittee who is convicted of violating the conditions endorsed on his or her permit shall have his or her permit revoked by the department. Any court in which such conviction is had shall require the permittee to surrender the permit to the court, and the court shall forward it to the department within ten days after the conviction, with a copy of the conviction. Any person whose limited driving permit has been revoked shall not be eligible to apply for a driver’s license until six months from the date such permit was surrendered to the department.
(b) Except as provided in Code Section 40-5-76, whenever a person is convicted of possession, distribution, manufacture, cultivation, sale, transfer of, the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or transfer a controlled substance or marijuana, or driving or being in actual physical control of any moving vehicle while under the influence of such substance a controlled substance or marijuana in violation of subsection (b) of Code Section 16-13-2, subsection (a), (b), or (j) of Code Section 16-13-30, or Code Section 16-13-33; paragraph (2), (4), or (6) of subsection (a) of Code Section 40-6-391 ; or the 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 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.
(c)(1) The decision to accept a plea of nolo contendere to a misdemeanor charge of unlawful possession of less than one ounce of marijuana shall be at the sole discretion of the judge. If a plea of nolo contendere is accepted as provided in this subsection, the judge shall, as a part of the disposition of the case, order the defendant to attend and complete a DUI Alcohol or Drug Use Risk Reduction Program. The order shall stipulate that the defendant shall complete such program within 120 days and that the defendant shall submit evidence of such completion to the department. The judge shall also notify the defendant that, if he or she fails to complete such program by the date specified in the court’s order, his or her driver’s license shall be suspended, by operation of law, as provided in this Code section. The record of the disposition of the case shall be forwarded to the department.
(2) If a plea of nolo contendere is accepted and the defendant’s driver’s license has not been suspended under any other provision of this title and if the defendant has not been convicted of or has not had a plea of nolo contendere accepted to a charge of violating this Code section within the previous five years, the court shall, subject to paragraph (1) of this subsection, return the driver’s license to the person; otherwise, such driver’s license shall be forwarded to the department.
(d) (c) Application for reinstatement of a driver’s license under paragraph (1) or (2) 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.
(e) (d) 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.
(f) (e) 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.
(g) Notwithstanding the provisions of Code Section 15-11-606 and except as provided in subsection (c) of this Code section, an adjudication of a minor child as a delinquent child for any offense listed in subsection (a) of this Code section shall be deemed a conviction for purposes of this Code section.
(h) (f) Licensed Notwithstanding the provisions of subsection (a) of this Code section, 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.
(i) (g) 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.”

 

. . .

 

PART VI SECTION 6-1.

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.

SECTION 6-2.

All laws and parts of laws in conflict with this Act are repealed.”

S.B. 100, 2015-2016 Reg. Sess. (Ga. 2015).

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