Articles
The ALS Dilemma in a “Refusal” Case
The typical DUI matter in this State ends up in two separate and very different courts. Most people are familiar with the regular criminal court and have a good idea about the issues involved there. Few people are acquainted with the other court, the Office of State Administrative Hearings (OSAH) where the court holds a proceeding called “Administrative License Suspension” hearing (ALS). DUI proceedings in the criminal court are typically initiated by the State with one or more uniform traffic citation(s) (UTC). Proceedings in the OSAH are typically initiated when a police officer files a Department of Transportation Form 1205 with the OSAH (see an example DS-1205 below).
In the criminal court, the central issue in cases is whether the person charged is guilty of the offense charged beyond a reasonable doubt. The accused in a criminal court has the right to have a jury of six (6) persons from the local community listen to the evidence and decide if they are convinced, beyond a reasonable doubt, of the accused's guilt. If they are so convinced, it is up to the judge in the case to meet out punishment up to a maximum of 12 months in jail and/or $1000 in fines and may impose certain other requirements.
Because the accused can go to jail, he or she is afforded multiple Constitutional rights that are designed to make the State prove guilt with real evidence and make the State play fair.
In the ALS hearing before the OSAH, the central issue in cases is whether the person charged should have his or her license suspended (or privilege to drive within Georgia if the accused is a licensee of another state) and for how long. Since there is no possibility of jail time and there's not even the possibility of a fine, the standards and procedures are much different than in criminal court and much less favorable to the accused. There are no juries in cases before the OSAH; a judge makes all the decisions about the outcome of a case by himself or herself. Further, the judge need only be convinced of the State's case by a “preponderance of the evidence” standard which only requires that he or she find that the overall weight of the evidence is slightly more favorable to the State's position than to the accused. In the far majority of cases heard by the OSAH, a police officer testifies to whatever he or she wrote on his or her arrest report. Unless the officer is completely unprepared for the hearing or the entire case is very weak, the State usually wins these hearings no matter the quality or quantity of opposition of the accused.
The issue of suspension of a driver's license/loss of driving privileges is especially critical in a case where the accused “refused” to take the State's chemical test (blood, breath or urine). If the State wins, the accused looses his or her license/privilege for a period of one year, early re-instatement is possible only if the accused manages to win his or her case before the year is over.
The lawyer at an ALS hearing where the accused is alleged to have “refused” the State's chemical test will, in consultation with his or her client:
- Try to have the 1205 petition thrown out because the police officer doesn't show up for the hearing.
- If the police officer does show up, the lawyer and the client have to decide if they want to go forward with the hearing and let the judge decide whether the license/privilege will be suspended for a year or if they want to try to make an agreement with the police officer to get him or her to withdraw the petition so there won't be a hearing and the accused can keep driving as before, the issue of suspension of license/privilege left to the criminal court.
- Sometimes police officers will withdraw their 1205 petitions “unilaterally,” or without any conditions for the withdrawal. If the police officer elects to do this for whatever reason, the accused finds himself or herself in the same posture as if the officer had never filed a 1205 petition.
- Often police officers are not willing to just drop the 1205 petition and let the accused continue driving without getting something in return. Usually, if an officer is willing to withdraw the 1205 at all, he or she will only do so if the accused agrees to enter a plea of guilty to DUI (occasionally an officer will consent to a reckless driving plea in the criminal court provided the criminal prosecutor agrees; the police officer may not substitute his judgment for that of the criminal prosecutor).
- If an agreement is made to withdraw the 1205 for a plea, the accused gets to keep driving as before and does not loose his or her license/privilege (for an entire year before there's even been a hearing in the criminal court). Many people faced with a “refusal” charge and the very real possibility of having no legal way to drive for an entire year will enter into this type of agreement (see “Final Decision” below for the specific wording of the agreement).
- If an agreement to enter a plea is broken by the accused, the State may use the fact of the agreement itself as evidence of guilt against the accused in the criminal trial of the case AND the officer may re-file the 1205 petition and seek the one year's suspension of the accused's license/privilege.
Many people with a “refusal” case end up making an agreement with the police officer at the ALS hearing to save the license/privilege from the one year suspension because having the ability to drive legally for work, school or just life in general is more important than any particular outcome of their underlying case. Because the ALS hearing is usually held relatively soon after a person's arrest and the criminal case is often heard much later, often a year or more later, the agreement made at the ALS hearing is a dim memory and the rationale behind the agreement is completely forgotten.
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