hb336_HB_336_AP

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08 HB 336/AP

House Bill 336 ( AS PASSED HOUSE AND SENATE)

By: Representatives Levitas of the 82nd, Bearden of the 68th, Talton of the 145th, Bridges of the 10th, Chambers of the 81st, and others

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers´ licenses, so as to change certain provisions relating to clinical evaluations and substance abuse treatment programs for certain offenders; to amend Code Section 40-6-391 of the Official Code of Georgia Annotated, relating to driving under the influence of alcohol, drugs, or other intoxicating substances, so as to revise the punishment provisions related to driving under the influence of alcohol, drugs, or other intoxicating substances; to provide that a fourth violation of the crime of driving under the influence within ten years is a felony; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to drivers´ licenses, is amended by revising Code Section 40-5-63.1, relating to clinical evaluation and substance abuse treatment programs for certain offenders, as follows:

"40-5-63.1.

In addition to any and all other conditions of license reinstatement, issuance, or restoration under Code Section 40-5-58, 40-5-62, or 40-5-63, any person with two or more convictions of violation of for violating Code Section 40-6-391 within five ten 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, shall be required to undergo a clinical evaluation and, if indicated by recommended as a part of such evaluation, must shall complete a substance abuse treatment program, prior to such license reinstatement, issuance, or restoration; provided, however, that such evaluation and treatment shall be at such person´s expense except as otherwise provided by Code Section 37-7-120. Acceptable proof of completion of such a program must shall be submitted to the department prior to license reinstatement, issuance, or restoration. For purposes of this Code section, a plea of nolo contendere to a charge of violating Code Section 40-6-391 and all prior accepted pleas of nolo contendere within five ten years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a plea of nolo contendere is accepted, shall be considered and counted as convictions."

SECTION 2.

Code Section 40-6-391 of the Official Code of Georgia Annotated, relating to driving under the influence of alcohol, drugs, or other intoxicating substances, is amended by revising subsection (c) as follows:

"(c) Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor, and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:

(1) First conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous five ten years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $300.00 nor and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A period of imprisonment of not less fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender´s alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;

(C) Not less fewer than 40 hours of community service, except that for a conviction for violation of subsection (k) of this Code section where the person´s alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not less fewer than 20 hours;

(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program approved by the Department of Driver Services. The sponsor of any such program shall provide written notice of such the department´s approval of the program to the person upon enrollment in the program; and

(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; provided, however, that in the court´s discretion such evaluation may be waived; and

(E)(F) If the defendant person is sentenced to a period of imprisonment for less fewer than 12 months, a period of probation of 12 months less any days during which the defendant person is actually incarcerated;

(2) For the second conviction within a five-year ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $600.00 nor and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A period of imprisonment of not less fewer than 90 days nor and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not less fewer than 72 hours of actual incarceration;

(E) Undergoing a A clinical evaluation as defined in Code Section 40-5-1 and, if indicated by recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

(F) A period of probation of 12 months less any days during which the defendant person is actually incarcerated; or

(3) For the third or subsequent conviction within a five-year ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A mandatory period of imprisonment of not less fewer than 120 days nor and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not less fewer than 15 days of actual incarceration;

(F) A period of probation of 12 months less any days during which the defendant person is actually incarcerated.; or

(4) For the fourth or subsequent conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A period of imprisonment of not less than one year and not more than five years; provided, however, that the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose;

(C) Not fewer than 60 days of community service; provided, however, that if a defendant is sentenced to serve three years of actual imprisonment, the judge may suspend the community service;

(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department´s approval of the program to the person upon enrollment in the program;

(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

(F) A period of probation of five years less any days during which the person is actually imprisoned;

provided, however, that if the ten-year period of time as measured in this paragraph commenced prior to July 1, 2008, then such fourth or subsequent conviction shall be a misdemeanor of a high and aggravated nature and punished as provided in paragraph (3) of this subsection.

(5) If a person has been convicted of violating subsection (k) of this Code section premised on a refusal to submit to required testing or where such person´s alcohol concentration at the time of the offense was 0.08 grams or more, and such person is subsequently convicted of violating subsection (a) of this Code section, such person shall be punished by applying the applicable level or grade of conviction specified in this subsection such that the previous conviction of violating subsection (k) of this Code section shall be considered a previous conviction of violating subsection (a) of this Code section.

(6) For the purpose of imposing a sentence under this subsection, a plea of nolo contendere or an adjudication of delinquency based on a violation of this Code section shall constitute a conviction.

(7) For purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of this subsection, only those offenses for which a conviction is obtained or a plea of nolo contendere is accepted on or after July 1, 2008, shall be considered; provided, however, that nothing in this subsection shall be construed as limiting or modifying in any way administrative proceedings or sentence enhancement provisions under Georgia law, including, but not limited to, provisions relating to punishment of recidivist offenders pursuant to Title 17."

SECTION 3.

Said Code section is further amended by revising subsection (d) as follows:

"(d)(1) Notwithstanding the limits set forth in any municipal charter, any municipal court of any municipality shall be authorized to impose the misdemeanor or high and aggravated misdemeanor punishments provided for in this Code section upon a conviction of violating this Code section or upon a conviction of violating any ordinance adopting the provisions of this Code section.

(2) Notwithstanding any provision of this Code section to the contrary, any court authorized to hear misdemeanor or high and aggravated misdemeanor cases involving violations of this Code section shall be authorized to exercise the power to probate, suspend, or stay any sentence imposed. Such power shall, however, be limited to the conditions and limitations imposed by subsection (c) of this Code section."

SECTION 4.

Said Code section is further amended by revising paragraph (2) of subsection (g) as follows:

"(2) In the sole discretion of the judge, he or she may suspend up to one-half of the fine imposed under paragraph (2) or (3) of subsection (c) of this Code section for a second or subsequent conviction conditioned upon the defendant´s undergoing treatment in a substance abuse treatment program as defined in Code Section 40-5-1."

SECTION 5.

This Act shall become effective on July 1, 2008, and shall be applied to offenses occurring on or after July 1, 2008; provided, however, that for purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of subsection (c) of Code Section 40-6-391, only those offenses for which a conviction or a plea of nolo contendere is obtained on or after July 1, 2008, shall be considered.

SECTION 6.

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