What You Should Know About Misdemeanor and Traffic Probation in Georgia

One of my favorite judges in Georgia likes to describe probation as a jail sentence that you serve on the outside so long as you can abide by the terms of probation. He often warns folks that if they cannot follow the rules, he will order them to spend the remainder of probation behind bars. Although it may sound harsh, what I appreciate about this warning is that it is much more honest than a lot of other explanations of probation that are given in court.

Prosecutors sometimes describe probation as a mere formality which will *give* the person in court the additional benefit of extra time to save more money or complete community service – as if probation is a reward or gift. This explanation falls short in a variety of ways, and it is easy for people to under-appreciate the severity of what can happen when things do not go as planned while on probation.

And while there are cases where probation should be viewed as a gift, it is also frequently used as a way for the government to police behavior – including conduct that has little to do with the original charge.

One of the things attorneys, judges and prosecutors occasionally fail to mention is that probation also serves as a formal invitation to law enforcement to come into your home, search your property, and tell you what to do on a regular basis. This is because you give up important constitutional rights when you agree to probation – especially if you waive your 4th Amendment rights at the time of the plea.

Will the probation officer come to your home?
Happily, most probation officers do not make home visits for many common misdemeanor and traffic offenses, but most probation terms contemplate the possibility of it happening.

Will you be exposed to jail time when you go on probation?
Probation can also lead to unexpected jail time. For instance, if someone is on probation because they needed extra time to save money for the fine, and they are later charged with possession of marijuana, the judge who handled the speeding ticket could be authorized to put the driver in jail for the remainder of the speeding ticket probation. This is because almost all probation sentences include the rule against violating any laws (including new traffic ticket). An arrest for marijuana possession (or new traffic ticket) authorizes your original judge to put you in jail for the remainder of the speeding probation for simply being arrested on a new charge. Luckily it is rare to see traffic court judges exercise their power in this way, however, anyone considering probation should be aware of this power and act accordingly. Going on probation means giving a lot of power over your life to someone else.

Why is probation usually 12 months long for misdemeanor offenses in Georgia?
In Georgia, judges frequently sentence people 12 or more months of probation in connection with a misdemeanor or traffic offense. The length is 12 months because that is the maximum amount of jail time you could be facing on most traffic and misdemeanor offenses. If you are coming from another state, be cautious when thinking about going on probation as Georgia handles probation quite differently than other states.

In Georgia, probation is used far more frequently than some other states. People are put on probation for 12 months for seemingly non-punitive reasons. One of the most common examples of this is when it is used to facilitate payment plans for large court fines on simple traffic offenses. This can feel like a great way to buy some extra time when you are speaking with the deal, but it can have disastrous consequences down the road.

In Georgia, there are a number of reasons a judge might sentence someone to 12 months of probation.

One reason judges like probation is for efficiency reasons when it comes to managing the court calendar. Sometimes the judge wants to close a case early on even though the person has not yet had time to complete all of the special conditions relevant to the case. For instance, in a drug case, the person may have to pay a fine, complete community service, get treatment and take a class. Because those things are often not completed at the time of the plea, probation is used as a way to make sure that those things are done. The judge assigns the probation officer the task of monitoring your progress, and if things are not completed, or the person on probation is arrested on a new offense, then the judge has the power to put them in jail for the remainder of probation. A 12-month probation sentence can quickly become a lengthy jail sentence when things don’t go according to plan.

Another use of probation is when there is a victim in the case. Let’s say there was a traffic accident and the other driver incurred medical expenses, or property was destroyed. Although usually, insurance will take care of it, it is not uncommon for judges to put the driver on probation to give the prosecutor time to schedule a restitution hearing so that the judge can make a ruling on whether the victim should be compensated for any financial loss in connection with the offense.

Judges also like to use probation in order to ensure that a person on probation behaves a certain way. For instance, if someone is charged with being underage and consuming alcohol, the judge may want to put that person on probation for 12 months and have probation test that person regularly to make sure they are not drinking alcohol anymore. Some counties require probationers to call an automated line every morning to see if they have been randomly selected to come in that day and submit to a drug and alcohol test.
Other times judges will sentence someone to a lengthy probation period in order to get them into a court-ordered treatment program. Some of the DUI and Drug Court programs actually require 24 months or more of probation.

Finally, although in many cases misdemeanor probation can be designed to be anywhere between 0 and 365 days, there are certain offenses that actually require a minimum of 12 months on probation. For example, a conviction of DUI in Georgia requires 12 months of probation. In those cases, the judge would not be permitted to shorten the probation period – regardless of how compelling the reasons may be.

Misdemeanor and Traffic Court Probation in Georgia

One of my favorite judges in Georgia likes to describe probation as a jail sentence that you serve on the outside so long as you can abide by the terms of probation. He often warns folks that if they cannot follow the rules, he will order them to spend the remainder of probation behind bars. Although it may sound harsh, what I appreciate about this warning is that it is much more honest than a lot of other explanations of probation that are given in court.
Prosecutors sometimes describe probation as a mere formality which will *give* the person in court the additional benefit of extra time to save more money or complete community service – as if probation is a reward or gift. This explanation falls short in a variety of ways, and it is easy for people to under-appreciate the severity of what can happen when things do not go as planned while on probation.
And while there are cases where probation should be viewed as a gift, it is also frequently used as a way for the government to police behavior – including conduct that has little to do with the original charge.
One of the things attorneys, judges and prosecutors occasionally fail to mention is that probation also serves as a formal invitation to law enforcement to come into your home, search your property, and tell you what to do on a regular basis. This is because you give up important constitutional rights when you agree to probation – especially if you waive your 4th Amendment rights at the time of the plea.
Will the probation officer come to your home?
Happily, most probation officers do not make home visits for many common misdemeanor and traffic offenses, but most probation terms contemplate the possibility of it happening.
Will you be exposed to jail time when you go on probation?
Probation can also lead to unexpected jail time. For instance, if someone is on probation because they needed extra time to save money for the fine, and they are later charged with possession of marijuana, the judge who handled the speeding ticket could be authorized to put the driver in jail for the remainder of the speeding ticket probation. This is because almost all probation sentences include the rule against violating any laws (including new traffic ticket). An arrest for marijuana possession (or new traffic ticket) authorizes your original judge to put you in jail for the remainder of the speeding probation for simply being arrested on a new charge. Luckily it is rare to see traffic court judges exercise their power in this way, however, anyone considering probation should be aware of this power and act accordingly. Going on probation means giving a lot of power over your life to someone else.
Why is probation usually 12 months long for misdemeanor offenses in Georgia?
In Georgia, judges frequently sentence people 12 or more months of probation in connection with a misdemeanor or traffic offense. The length is 12 months because that is the maximum amount of jail time you could be facing on most traffic and misdemeanor offenses. If you are coming from another state, be cautious when thinking about going on probation as Georgia handles probation quite differently than other states.
In Georgia, probation is used far more frequently than some other states. People are put on probation for 12 months for seemingly non-punitive reasons. One of the most common examples of this is when it is used to facilitate payment plans for large court fines on simple traffic offenses. This can feel like a great way to buy some extra time when you are speaking with the deal, but it can have disastrous consequences down the road.
In Georgia, there are a number of reasons a judge might sentence someone to 12 months of probation.
One reason judges like probation is for efficiency reasons when it comes to managing the court calendar. Sometimes the judge wants to close a case early on even though the person has not yet had time to complete all of the special conditions relevant to the case. For instance, in a drug case, the person may have to pay a fine, complete community service, get treatment and take a class. Because those things are often not completed at the time of the plea, probation is used as a way to make sure that those things are done. The judge assigns the probation officer the task of monitoring your progress, and if things are not completed, or the person on probation is arrested on a new offense, then the judge has the power to put them in jail for the remainder of probation. A 12-month probation sentence can quickly become a lengthy jail sentence when things don’t go according to plan.
Another use of probation is when there is a victim in the case. Let’s say there was a traffic accident and the other driver incurred medical expenses, or property was destroyed. Although usually, insurance will take care of it, it is not uncommon for judges to put the driver on probation to give the prosecutor time to schedule a restitution hearing so that the judge can make a ruling on whether the victim should be compensated for any financial loss in connection with the offense.
Judges also like to use probation in order to ensure that a person on probation behaves a certain way. For instance, if someone is charged with being underage and consuming alcohol, the judge may want to put that person on probation for 12 months and have probation test that person regularly to make sure they are not drinking alcohol anymore. Some counties require probationers to call an automated line every morning to see if they have been randomly selected to come in that day and submit to a drug and alcohol test.
Other times judges will sentence someone to a lengthy probation period in order to get them into a court-ordered treatment program. Some of the DUI and Drug Court programs actually require 24 months or more of probation.
Finally, although in many cases misdemeanor probation can be designed to be anywhere between 0 and 365 days, there are certain offenses that actually require a minimum of 12 months on probation. For example, a conviction of DUI in Georgia requires 12 months of probation. In those cases, the judge would not be permitted to shorten the probation period – regardless of how compelling the reasons may be.

What Will Happen at Your First Court Date After Being Arrested for DUI in Georgia

One of the difficult things about a DUI arrest in Georgia is not understanding what comes next. There is a lot of anticipation and anxiety connected with the first court date, particularly if you do not yet have an attorney.
If you find yourself in the position of representing yourself at the first court date here are some tips that you may want to keep in mind as you prepare.
  • Let the Judge know you want an attorney. At the first court date, it is very common for people to come without an attorney because they haven’t had time to hire one yet. If you don’t have an attorney, you can ask the Judge for some extra time to find and hire a lawyer or apply for the Public Defender. If the Judge asks you how much time you need – be honest! Tell the Judge what the hold up is – maybe you need to save money, or the attorney you want is not available yet. Usually, the Judge will be flexible at that first appearance and give you time to find a lawyer. Keep in mind that her patience may evaporate if you show up a second time without doing what you promised. The Judge may have notes of your initial conversation and follow up with you at the next appearance – so don’t assume she won’t remember what she told you or what you told her. If you don’t have a lawyer by the second court appearance the Judge may have a lot of questions about how much you have done to try and get representation, including whether or not you have applied for the Public Defender if money is an issue.
  • Do not waive your right to a jury trial. The waiver will be in writing, so read everything you sign very carefully. Most people without an attorney in court are intimidated by the prospect of a jury trial. They don’t think twice before waiving their right to one, but many attorneys would advise against it. If you pay attention you will see very few attorneys waiving the jury trial at the first appearance. It is best to wait to speak with an attorney before waiving any of your constitutional rights.
  • Manage your expectations. Do not be disappointed when the prosecutor does not have much information about the case. It is typical for the video or blood test to take weeks or months. You may notice that very few attorneys have a meaningful conversation with the prosecutor at the first DUI court date about the facts of the case. The reason for this is that attorneys understand that very little of the evidence s going to be ready at that first appearance.
  • Budget enough time. Depending on the size of the calendar the entire court appearance could be as quick as a few minutes or as long as many hours. This can be frustrating when you don’t have an attorney because many Judges will hear the attorney cases first. Plan in advance and reschedule any critical event that you have on the calendar for later that day. Sometimes the process will take a lot longer than anyone expects and if you have something important scheduled later, you may end up missing it.
  • Be patient. Courtrooms can be scary and intimidating, and they are certainly not designed with an orientation toward customer service. When people feel treated poorly, ignored, or rushed – all of which are everyday experiences in court, it does not bring out the best in them. If you prepare for this in advance, it will be easier to keep your wits about you and remain cool, calm and collected. One of the worst things you can do is to be *memorable* to the prosecutor because you lose your cool. Being impatient and ugly with court staff or the prosecutor will make a bad situation worse and create unnecessary friction for you moving forward.
  • Wear something that honors the formality of the occasion. It doesn’t need to be a suit, but it shouldn’t be flip flops and shorts. If you wear a uniform for work, then that is usually perfectly fine, and it is common to see folks in scrubs on their way to the hospital.
  • Timing matters. Whether you are going to hire a private attorney or apply for a Public Defender, don’t forget that the clock is ticking. Prioritize making decisions about your representation and don’t drag your feet.  The most important decision you will make after your arrest is deciding which DUI attorney to hire. We all have different strengths – as opposed to a one-size-fits-all approach. Ask thoughtful questions, and do your research! Don’t rush it, but don’t run from the task either. Invest in finding out if this attorney is right for you. Your future self will thank you!

What You Should Know About the Ignition Interlock Device Permit in Georgia

If you have been arrested for DUI in Georgia and the police officer wrote you up for a refusing a breath, blood or urine test (even if you do not agree that you refused), then you should know your options when it comes to the Ignition Interlock Device (“IID”).

The IID is a device that is installed in your car and will monitor your blood alcohol content while the vehicle is on. It can be a great alternative to a twelve-month license suspension – as long as you can afford the installation and monitoring fees and you don’t mind that your passengers will see it.

Historically, in Georgia, when a driver refused, she had no options other than to challenge the year license suspension by requesting a hearing through the Department of Driver Services. Now, a handful of drivers have the second option of installing an IID instead of a suspension. For some, this option makes a lot of sense. For others, it may make more sense to the challenge the suspension directly by requesting an Administrative License Hearing.

Who is eligible for the 12-month IID permit after being arrested for DUI in Georgia?*

  • Georgia license holders
  • Age 21 or older
  • No other license suspensions or revocations
  • Drivers who have not had a prior DUI in the past five years

Who is not eligible for the 12-month IID permit after being arrested in Georgia?* 

  • Out-of-state licensed drivers
  • Drivers with active suspensions or revocations on their Georgia license
  • Drivers with a prior DUI conviction within the past five years (measured by date of the previous arrest)
  • Drivers with a prior ALS suspension within five years
  • Drivers whose DUI arrest involved an accident with death or serious injury
  • Drivers who have not applied for the permit with DDS within 30 days of being served the notice of suspension
  • CDL drivers – but could have IID if license downgraded to non-commercial driving privileges for the duration of the suspension period

IID Step-by-Step*

  • Get IID installed in the vehicle and apply for a permit within 30 days of 1205 issuance (usually issued at the time of arrest)
  • Department of Driver Services approved locations can be found on the DDS website at this link
  • Driver must have the interlock device installed before applying for the IID permit
  • Driver must apply in person at any DDS office within 30 days of the 1205 serve date and must waive the right to an ALS OSAH hearing
  • Driver will receive a mobile notification that a change has been made to the driving history if the driver has signed up for services on the DDS mobile app.

Deciding whether to install an IID in your vehicle is one of the first strategic decisions you will make with your lawyer.  Be sure you ask your attorney about any additional permit limitations that may apply, including how it will impact out-of-state driving privileges and the ability to drive rental cars.

*You should discuss the specifics of your case with your attorney as some exceptions may apply that are not discussed here.