duistatelaws.com Georgia charges you to ask for a hearing on your own license: a $150 filing fee, set in the statute itself. The request has to reach DDS within 30 days of the notice and it has to arrive with a filing fee attached. Miss either half and the suspension proceeds with no review of the stop.
Key takeaways
- Georgia charges DUI less safe and DUI per se under the same section, 40-6-391, and a single arrest usually produces both counts.
- The per se figure is 0.08, measured at any time within three hours after driving.
- 30 days and a $150 filing fee to request the license hearing, or an interlock permit instead — and choosing the permit waives the hearing.
- The criminal lookback is 10 years, measured from arrest dates. The license code uses a different, shorter window of five years.
- A third conviction inside ten years is a high and aggravated misdemeanor with fifteen days that cannot be suspended.
- A Georgia DUI conviction cannot be restricted or sealed, at any point, under any program.
to demand a hearing from Georgia Department of Driver Services, counted from the notice you were served. O.C.G.A. § 40-5-67.1(g)(1). This proceeding is separate from the criminal charge, it is decided by DDS rather than by a judge, and nothing about it happens automatically.
The same diagram as a table
| State | Days | Authority |
|---|---|---|
| Colorado | 7 | C.R.S. § 42-2-126(6)(d), (7)(b) |
| Virginia* | 7 | Va. Code § 46.2-391.2(A), (C) |
| Washington | 7 | RCW 46.20.308(7) |
| California | 10 | Cal. Veh. Code § 13558(b) |
| Florida | 10 | Fla. Stat. § 322.2615(1)(b)3. |
| Texas | 15 | Tex. Transp. Code §§ 524.031, 724.041 |
| Arizona | 30 | A.R.S. § 28-1321(F), (G) |
| Georgia | 30 | O.C.G.A. § 40-5-67.1(g)(1) |
| South Carolina | 30 | S.C. Code § 56-5-2951(B)(1) |
| Minnesota* | 60 | Minn. Stat. § 169A.53, subd. 2 |
Two charges, one section, one arrest
O.C.G.A. section 40-6-391(a) lists five ways of committing the offense and a Georgia accusation routinely pleads two of them for the same stop. Paragraph (a)(1) is the one practitioners call DUI less safe: under the influence of alcohol to the extent that it is less safe for the person to drive. Paragraph (a)(5) is DUI per se: an alcohol concentration of 0.08 grams or more at any time within three hours after driving, from alcohol consumed before or while driving.
The difference decides what a defense is about. Per se is a fight about the machine, the sample, the three hours and the chain of custody. Less safe is a fight about the video, the driving and the officer's opinion, and it does not need a number at all — which is why a Georgia driver who successfully excludes a breath result can still be tried and convicted on the other count from the same stop.
Paragraphs (a)(2) through (a)(4) extend the same less-safe standard to drugs, to glue, aerosol and other toxic vapours taken intentionally, and to combinations. Georgia has no separate drugged driving statute; it is the same section with a different substance named.
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The ladder, and the part of it that cannot be suspended
Subsection (c) of 40-6-391 sets the punishment for each count of convictions inside the ten-year window. Georgia writes its sentences as a range plus a carve-out: the range looks survivable, and then a clause says how much of the minimum the judge is not allowed to suspend, stay or probate. That clause is the number that actually decides whether somebody goes to jail.
The same diagram as a table
| Offense | Confinement | Authority |
|---|---|---|
| First conviction | 10 days to 12 months | § 40-6-391(c)(1) |
| Second conviction in 10 years | 90 days to 12 months | § 40-6-391(c)(2) |
| Third conviction in 10 years | 120 days to 12 months | § 40-6-391(c)(3) |
| Fourth conviction in 10 years | set by the felony sentencing provisions | § 40-6-391(c) |
| Offense | Level | Confinement | Fine | License | Also required |
|---|---|---|---|---|---|
| First conviction | Misdemeanor § 40-6-391(c)(1) | 10 days to 12 months the judge may suspend all but 24 hours where the test read 0.08 or more | $300 to $1,000 § 40-6-391(c)(1) | 12 months § 40-5-63(a)(1) | 40 hours of community service |
| Second conviction in 10 years | Misdemeanor § 40-6-391(c)(2) | 90 days to 12 months 72 hours of it cannot be suspended | $600 to $1,000 § 40-6-391(c)(2) | 3 years § 40-5-63(a)(2) | 30 days of community service |
| Third conviction in 10 years | High and aggravated misdemeanor § 40-6-391(c)(3) | 120 days to 12 months 15 days of it cannot be suspended | $1,000 to $5,000 § 40-6-391(c)(3) | Habitual violator revocation § 40-5-62 | 30 days of community service |
| Fourth conviction in 10 years | Felony § 40-6-391(c) | set by the felony sentencing provisions the misdemeanor ladder stops at the third conviction | set by the felony sentencing provisions § 40-6-391(c) | Habitual violator revocation § 40-5-62 | — |
A third conviction inside ten years is not a worse misdemeanor. It is a high and aggravated misdemeanor, which changes how the sentence is served as well as how long it is, and it comes with fifteen days of actual incarceration that the judge cannot suspend. A fourth inside the window is a felony. Georgia's ladder is steeper at the top than most people expect from a state whose first offense can end in 24 hours.
Every level also carries a DUI Risk Reduction Program requirement, to be completed within 120 days of the conviction, and a clinical evaluation with substance abuse treatment if the evaluation recommends it. Those are conditions of the sentence, not optional extras, and failing to complete them inside the window is its own problem.
The license case: thirty days, and a fee
Georgia's administrative license suspension runs on a longer fuse than California's or Florida's and charges for the privilege of contesting it. Section 40-5-67.1(g)(1) requires a written request for a hearing to reach the department within 30 days of personal notice or receipt of notice by certified mail, accompanied by a $150.00 filing fee. No fee, no hearing.
The statute offers an alternative that is genuinely a choice rather than a formality. A driver may instead apply for an ignition interlock device limited driving permit under section 40-5-64.1 — and doing so operates as a waiver of the right to the hearing. You get to keep driving, under a device, and you give up the proceeding in which the stop would have been examined. Which of those is worth more depends entirely on the facts of the stop, and it is a decision with a thirty-day fuse on it.
Refusing the test carries its own consequence under subsection (d): a one-year suspension, imposed administratively and separately from whatever the criminal case does.
The same diagram as a table
| Step | Criminal case — decided by a court | License case — decided by a state agency |
|---|---|---|
| 1 | Arrest and booking, hour 0 | Notice of suspension served, day 0 |
| 2 | Charge filed by the prosecutor | Deadline to demand a hearing: 7 to 30 days in the eight states on this site that use an agency hearing |
| 3 | First court setting, on a date the court picks | Hearing held if the request was filed — whether the suspension waits for the ruling is set by each state's statute |
| 4 | One or more pretrial settings | Suspension takes effect automatically with no hearing |
| 5 | Trial, plea or dismissal | — |
| Clock | Weeks to months. No filing deadline runs against the driver. | Counted in days from the notice, and fixed by statute. |
| What happened | First time | With a prior | Authority |
|---|---|---|---|
| Convicted, first in five years | 12 months | — | O.C.G.A. § 40-5-63(a)(1) |
| Convicted, second in five years | — | 3 years | O.C.G.A. § 40-5-63(a)(2) |
| Refused the test | 1 year | — | O.C.G.A. § 40-5-67.1(d) |
The criminal code counts priors over ten years. The license code, in section 40-5-63, counts them over five. So a conviction from eight years ago can make today's case a second offense for sentencing while leaving the license consequence at the first-offense level. People read one number somewhere and apply it to both. It does not work that way.
Arrest to arrest, not conviction to conviction
Georgia's ten-year window is measured in an unusual way and it is the single most consequential detail on this page. Subsection (c) counts the 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”.
Read that again with a calendar. The clock runs from the arrest date of the old case, not from the conviction date. A case that was arrested in 2017 and finally resolved in 2019 stops counting in 2027, not 2029. Court delay on the earlier case works in the driver's favour here, which is the opposite of what almost everyone assumes, and it is worth checking the old arrest date before accepting that today's charge is a second or a third.
Note also what else counts. A plea of nolo contendere that was accepted is inside the definition, so the plea that felt like it avoided a conviction is a prior for this purpose.
The interlock permit, and what it costs you
Georgia's interlock provision is not primarily a punishment. Section 40-5-64.1 is a permit scheme: it is how a driver facing an administrative suspension keeps driving. That framing is why the trade in the license section above exists at all, and why the device shows up before any conviction rather than after one.
| Situation | Term | Authority |
|---|---|---|
| First DUI, administrative suspension | Interlock permit in place of the suspension | § 40-5-64.1 |
| Second DUI, after 120 days | Interlock permit, 12 months of monitoring | § 40-5-64.1 |
It does not come off. Ever.
Georgia's record restriction statute, O.C.G.A. section 35-3-37, is the mechanism that in other states would be called sealing. Subsection (j) sets out when a conviction record can be restricted, and then lists what the provision does not reach. Item (xviii) on that list is “any serious traffic offense in violation of Article 15 of Chapter 6 of Title 40”.
Article 15 of Chapter 6 of Title 40 is where section 40-6-391 lives. A Georgia DUI conviction is therefore outside record restriction by name, and no amount of elapsed time, program completion or good behavior moves it. This is not a long wait. It is a permanent exclusion, and it is the reason the disposition of a Georgia DUI matters more than the sentence attached to it.
What a Georgia DUI lawyer is actually working with
A thirty-day fee-bearing deadline, a ten-year window measured from arrest dates, and a conviction that is permanent. Those three facts shape everything about how a Georgia case is run.
The permanence is the reason the fight is usually about the disposition rather than the sentence. In a state where the record can be sealed after a few years, accepting a conviction to end a case is a defensible trade. In Georgia it is not a trade; it is a permanent entry, and that changes the arithmetic on every offer.
The arrest-date rule is the reason the first thing worth checking is the paperwork on the old case rather than the new one. A second-offense sentencing exposure that turns out to be a first offense is the largest single swing available in most Georgia DUI files, and it turns on a date that is frequently two years earlier than the one everybody is looking at.
Where the case is actually heard
Common questions about Georgia DUI law
How long do I have to appeal a Georgia license suspension?
Thirty days from personal notice, or from receipt of notice sent by certified mail, and the request has to arrive with a $150.00 filing fee under O.C.G.A. section 40-5-67.1(g)(1). You can instead apply for an ignition interlock device limited driving permit under section 40-5-64.1, but the statute treats that application as a waiver of the hearing.
What is the difference between DUI less safe and DUI per se in Georgia?
They are two paragraphs of the same section, 40-6-391(a). Per se, in (a)(5), is an alcohol concentration of 0.08 grams or more within three hours of driving. Less safe, in (a)(1), is being under the influence to the extent that it is less safe to drive, and it needs no test result. Both are usually charged from the same stop, so winning on the machine does not by itself end the case.
How far back does Georgia look for prior DUIs?
Ten years for the criminal sentencing ladder, and the statute measures it from the dates of the previous arrests to the date of the current arrest rather than from conviction dates. The license code in section 40-5-63 uses a separate five-year window for the suspension consequence, so the two can give different answers about the same prior.
Can a Georgia DUI be expunged?
No. Record restriction under O.C.G.A. section 35-3-37 expressly does not apply to any serious traffic offense in violation of Article 15 of Chapter 6 of Title 40, which is where the DUI statute sits. A Georgia DUI conviction stays on the record permanently.
Will I actually go to jail for a first Georgia DUI?
The statutory range is 10 days to 12 months, but for a first conviction where the test read 0.08 or more the judge may suspend, stay or probate all but 24 hours of it. The 24 hours is the part that is not discretionary. On a second conviction within ten years the non-suspendable portion rises to 72 hours, and on a third to 15 days.
Does a nolo contendere plea keep a DUI off my record in Georgia?
No. Subsection (c) of 40-6-391 counts a prior arrest for which a plea of nolo contendere was accepted the same way it counts one that produced a conviction, for the purpose of deciding whether today's charge is a second or a third offense.
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More for Georgia
- Atlanta and Fulton County — which court hears the case, and what the first weeks look like on the ground
- Savannah and Chatham County — which court hears the case, and what the first weeks look like on the ground
- Marietta and Cobb County — which court hears the case, and what the first weeks look like on the ground
- Columbus and Muscogee County — which court hears the case, and what the first weeks look like on the ground
- Gwinnett County — which court hears the case, and what the first weeks look like on the ground
- What the charge is called in each state — the terminology table, and why searching the wrong acronym returns the wrong penalty
- How long it stays on your record — the three separate records a single arrest creates
- Expungement, sealing and set aside — which of the three, if any, exists in Georgia
- Refusing the test — what implied consent costs here against what it buys
- SR-22 insurance after a Georgia suspension — what the filing certifies and how long the state holds you to it
- Ignition interlock requirements — when Georgia orders the device, for how long, and what driving without it costs
- DUI classes and evaluations — the program attached to the sentence, its deadline, and what not finishing costs
- Are DUI checkpoints legal in Georgia? — five conditions, per LaFontaine (1998)
- Field sobriety tests in Georgia — no BAC from clues without a foundation, per Spencer (2017)
- Device cost and providers in Georgia — our sister site, written around the SR-22 filing
Sources
- O.C.G.A. § 40-6-391(a)(5) — read reproduction current as of 2024-03-28 — the authoritative text is published by the state at the official portal
- O.C.G.A. § 40-5-67.1(g)(1) — read reproduction current as of 2024-03-28 — the authoritative text is published by the state at the official portal
- O.C.G.A. § 40-5-63(a) — read reproduction current as of 2024-03-28 — the authoritative text is published by the state at the official portal
- O.C.G.A. § 40-5-64.1 — read reproduction current as of 2024-03-28 — the authoritative text is published by the state at the official portal
- O.C.G.A. § 35-3-37(j)(4)(B)(xviii) — read reproduction current as of 2024-03-28 — the authoritative text is published by the state at the official portal
Each entry names the section that carries the figure and the document that was actually opened to read it. Where the two differ, the state’s own publication is linked as well. Statutes change; check the linked text before relying on a number from any website, including this one.