Misdemeanor and Traffic Court Probation in Georgia

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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

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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 opt to represent yourself at your first court date, here are some tips to keep in mind as you prepare.

  • Let the Judge know you want an attorney. At the first court date, it is 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 extra time to find and hire a lawyer or apply for the Public Defender. And 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. However, her patience may evaporate if you show up a second time without doing what you promised. Judges usually keep notes of your initial conversation and follow up at your next appearance – so don’t assume they won’t remember what was said. If you don’t have a lawyer by the second court date, the Judge may have questions about how much you have done to get representation. If money is an issue, this includes whether you have applied for the Public Defender.
  • Do not waive your right to a jury trial. 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. It is best to wait to speak with an attorney before waiving any of your constitutional rights. And read everything you sign very carefully because the waiver will be in writing. If you pay attention, you see that very few attorneys waive the jury trial at the first appearance.
  • Manage your expectations. You may notice that the prosecutor will not have a lot of information about the case at the first court date. It is typical for the video or blood test to take weeks or months. So do not be disappointed when the prosecutor does not have much information about the case at that first court date.
  • Budget enough time. Sometimes the process takes a lot longer than anyone expects. Depending on the calendar size, the entire court appearance could be over quickly or last several hours. And many judges will see cases that have an attorney first – making it frustrating for those who represent themselves. But you can reduce your stress and avoid missing critical events by freeing up your calendar for the day.
  • 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. But 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. Impatience and ugly attitudes with court staff or the prosecutor makes a bad situation worse and creates 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. For example, it is common to see folks in scrubs on their way to the hospital.
  • Timing matters. Whether you hire a private attorney or apply for a Public Defender, remember the clock is ticking. Prioritize making decisions about your representation, and do not drag your feet. The most important decision you 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! Avoid rushing the process, but do not run from the task either because it is critical to invest in finding the right attorney for you. Your future self will thank you!

Understanding these basic tips is a good start for preparing for your court date. But do not let unanswered questions cause you more stress or anxiety! Contact us today for a free consultation.

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

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If you have been arrested for DUI in Atlanta or anywhere in Georgia and the police officer wrote you up for 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 to monitor your blood alcohol content while the vehicle is on. This option can be a great alternative to a twelve-month license suspension as long as you can afford the installation and monitoring fees and don’t mind that your passengers see the device.

Historically, in Georgia, when a driver refused, she had no options other than to challenge the year-long 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 makes more sense to request an Administrative License Hearing and challenge the suspension.

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 you could have an IID if you downgraded your license 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 receives a mobile notification that a change has been made to their driving history if the driver 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.

How to Resolve a Bench Warrant and Failure to Appear (FTA) in Georgia

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Solving FTAs quickly and painlessly is one of our favorite ways to help people get back to normal!

 

One of the biggest fears our clients have is that they will be arrested when they return to court to clear up an FTA case. This fear is reasonable since it is common for the judge to issue a bench warrant when someone misses traffic court in Georgia.

It is rare, however, for a person to be arrested when she is there to resolve an FTA in traffic court.  After all, the whole purpose of issuing a bench warrant on an FTA case is to extend a formal (and exceptionally unpleasant) invitation to return to court and close the case.

In the outlier cases when someone is detained upon returning to court to address an FTA, it is usually because there is a warrant in a different jurisdiction, or related to a separate matter. That being said, it may be wise to speak with a local attorney before taking the leap if you are worried about being arrested.

You can also reach out to someone in the clerk’s office to find out how that particular court handles FTA cases. Some courts have a specific day/time for FTA cases. For instance, some courts handle FTA cases every morning on the 8 AM calendar, but you have to arrive as early as 7 AM on that day in order to get on the docket and you cannot sign up in advance. Other courts handle FTA cases in the afternoons and require that you need to sign up in advance. Other courts will lift the warrant when you go in and sign for a new date.

When you return to court to clear up the FTA, the judge will usually lift the bench warrant without much fanfare. If you had a valid excuse for missing court, such as a medical emergency, make sure you bring the paperwork showing as much with you. Usually, physical printouts are strongly preferred over digital copies (showing them your phone screen).

FTA License Suspension

If more than 30 days have passed since you missed court then you should think about requesting a DDS 912 Form upon closing out your case in order to prevent a suspension of your license.

In addition to the bench warrant, the other unpleasant side effect of missing traffic court is the suspension of your driver’s license. If you are quick to return to court then you may not have to worry about it, but it is better to be safe than sorry. If you think there is a possibility that the court may have sent in the suspension information to either the Georgia Department of Driver Services or your home licensing state (whichever was listed on your original ticket) then you should pick up a certified 912 form from the clerk’s office on your way out of traffic court.

You can always check the status of your license to find out if it is suspended at the DDS website. If you are an out-of-state license holder and you want to find out which Georgia court suspended your license, you can get that information from your home driver’s license agency (DMV).

Bench Warrant Arrest

Sometimes you don’t realize there is a bench warrant out for your arrest until you are advised by a law enforcement officer as she is taking you into custody. Something as mundane as a missed court date for a broken headlight can lead to spending days in custody under the wrong circumstances.

There are two ways to get arrested for a traffic court bench warrant. The first is when you are arrested in the “original jurisdiction.” For example, you missed court at Atlanta Municipal Court and then you are pulled over in Atlanta for a new traffic offense. If you are arrested on the bench warrant (and there are no other holds) then you are probably going to be released quickly and given a new court date for both the old and new tickets.

The second way to be arrested on a traffic court bench warrant is when it happens out of the original jurisdiction. If you are very far away from the original jurisdiction, clients have reported that they are not always arrested on a traffic FTA bench warrant. We have heard a lot of these reports from out-of-state clients. Rather, the out-of-state law enforcement officer simply advises them of the fact that there is a warrant and that they should call a lawyer to clear it up.

On the other hand, if you are stopped in an area nearby the original jurisdiction then you are likely going into custody and it could take longer than you may hope. For example, if you miss a traffic court date in Atlanta and are later stopped in Cobb County, the officer will not return you directly to Atlanta. Rather, she will bring you back to the Cobb County Detention Center where you will have to wait for Atlanta to send a transport vehicle to pick you up. You often cannot bond out and they will not always share the transport schedule. Sometimes the wait is merely a handful of hours, but other times it can be quite a bit more. In that scenario, you can wait it out or talk to an attorney to see if they can help by getting the warrant lifted in the original court.

Very few people intend to miss traffic court, but many do every year. In fact, nearly 40,000 people miss traffic court in the Atlanta Municipal Court per year. More frequently than not, it is the result of a simple oversight. The good news is that it can usually be resolved with a (sometimes quick) court appearance.