08 LC 29
3406S
The
Senate Judiciary Committee offered the following substitute to HB
336:
A
BILL TO BE ENTITLED
AN ACT
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;
(C)
Not
less
fewer
than 30 days of community service;
(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;
(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;
(C)
Not
less
fewer
than 30 days of community service;
(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;
(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
(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.