Official Opinion 2017-4

October 20, 2017
To: 

President, Council of Superior Court Clerks

Re: 

Convictions for violations of O.C.G.A. §§ 40‑6‑391(2), (4), (6), and 40‑5‑151 (2016) should be reported by the Clerk to the Department of Driver Services (“DDS”).  Convictions for violations of O.C.G.A. §§ 16‑13‑30(b), 16‑13‑31, and 16‑13‑31.1 (2016) should be reported to DDS only upon the clerk’s determination that the conviction meets the mandate of O.C.G.A. § 40‑5‑54(a)(2).

You have requested my opinion regarding which violations of various Georgia driving‑related statutes should result in the reporting by a superior court clerk’s office to the Department of Driver Services (“DDS”) for suspension of a driver’s license.  After review of the applicable law, it is my opinion that convictions for violations of O.C.G.A. §§ 40‑6‑391(2), (4), (6), and 40‑5‑151 (2016) should be reported by the Clerk to DDS and violations of O.C.G.A. §§ 16‑13‑30(b), 16‑13‑31, and 16‑13‑31.1 (2016) should be reported to DDS only upon the clerk’s determination that the conviction meets the mandate of O.C.G.A. § 40‑5‑54(a)(2).  See Appendices A and B.

Specifically, you have inquired as to convictions for violations of O.C.G.A. §§ 40‑6‑391(2), (4), (6), 40‑5‑151, 40‑5‑54(a)(2), 16‑13‑30(b), 16‑13‑31, and 16‑13‑31.1 (2016), as they relate to drug‑related offenses.  You note in your request that the legal department of DDS has concluded that the intent of amendments made to various statutes during the 2015 legislative session through Act No. 21 (hereinafter “S.B. 100”) was to no longer suspend a driver’s license for any possession of drugs, but only to suspend a license if a vehicle was used for distribution, sale, etc. of a drug.  See 2015 Ga. Laws 60, 74-76.  You also note that superior court clerks generally believe that the mandatory suspension for any felony offense where a motor vehicle is used pursuant to O.C.G.A. § 40‑5‑54(a)(2) would include felony drug offenses under O.C.G.A. § 16‑13‑30(a) (Possession) or (b) (Distribution), or any other felony drug code section. 

O.C.G.A. § 40‑5‑54(a)(2) (2016) directs DDS to “suspend, as provided in Code Section 40‑5‑63, the license of any driver upon receiving a record of such driver’s conviction of . . . [any] felony in the commission of which a motor vehicle is used.”  It further provides that “[the] period of suspension shall be determined by [DDS] for the term authorized by law.  The court shall forward the notice of suspension and the defendant’s driver’s license to the department within ten days from the date of conviction. The department shall notify the defendant of the period of suspension at the address provided by the defendant.”  O.C.G.A. § 40‑5‑54(b) (2016).  This statute requires the reporting to DDS of any and all felony convictions in which a motor vehicle is used.  There is no limitation to drug offenses mentioned in the code section.

O.C.G.A. § 40‑5‑63 (2016) dictates the periods of suspension for those persons convicted of offenses which are listed in O.C.G.A. § 40‑5‑54 (2016) and for some convictions under O.C.G.A. § 40‑6‑391 (2016); drug-related offense convictions under O.C.G.A. § 40‑6‑391 (2016), which include subsections (a)(2), (4), and (6), are governed by O.C.G.A. § 40‑5‑75 (2016), which dictates appropriate periods of suspension.

O.C.G.A. § 40‑5‑75 (2016) was amended by S.B. 100 to remove the mandatory suspension when a person is convicted for a drug-related offense, except for impaired driving offenses under O.C.G.A. § 40‑6‑391 (2016) or its out-of-state equivalent.  2015 Ga. Laws at 74, § 4‑18; see also Appendix A.  The amendment also altered O.C.G.A. § 40‑5‑54 (2016), but the language in O.C.G.A. § 40‑5‑54(a)(2) (2016) remained unchanged.  Id.

As a result, a person who is convicted of a felony violation of O.C.G.A. §§ 16‑13‑30, 16‑13‑31, or 16‑13‑31.1 (2016) does not automatically receive a license suspension for such a conviction, as such person would have before O.C.G.A. § 40‑5‑75 was amended.  See Appendix B.  Rather, any suspension resulting from such a felony conviction would only be mandated if the conviction falls within the narrowed parameters of O.C.G.A. § 40‑5‑54(a)(2) (2016).  Therefore, if a motor vehicle was used during the commission of a felony crime, such as a conviction for violating O.C.G.A. §§ 16‑13‑30, 16‑13‑31, or 16‑13‑31.1 (2016), the clerk would be required to report the conviction to DDS pursuant to O.C.G.A. § 40‑5‑54(a)(2) (2016).  A conviction based solely on O.C.G.A. §§ 16‑13‑30, 16‑13‑31, or 16‑13‑31.1 (2016), without otherwise meeting the parameters set forth under O.C.G.A. § 40-5-54(a)(2)(2016), no longer triggers an automatic, mandatory suspension.

The onus is on the clerk to first determine whether the conviction is reportable to DDS, and then to report such conviction pursuant to O.C.G.A. § 40‑5‑54 (2016) to DDS.  The responsibility then shifts to DDS to determine the period of the mandatory suspension required by O.C.G.A. § 40‑5‑54 (2016) in each instance reported by the clerk.

In addition, pursuant to O.C.G.A. § 40‑5‑151(e) (2016), a “person is disqualified from driving a commercial motor vehicle for life” if he or she “knowingly uses a motor vehicle in the commission of any felony involving the manufacture, distribution, cultivation, sale, transfer of, trafficking in, or dispensing of a controlled substance or marijuana, or possession with intent to manufacture, distribute, cultivate, sell, transfer, traffic in, or dispense a controlled substance or marijuana.”  As this code section places a lifetime disqualification on a convicted individual, a qualifying conviction must be reported to DDS in every such case, regardless of whether the person convicted currently holds a commercial driver’s license.  Every person has a commercial driving “privilege” that, in essence, lies dormant until such time as that person may apply for a commercial driver’s license; every driver possesses the possibility of becoming a commercial driver if he or she is otherwise qualified and applies for such a license.  See O.C.G.A. §§ 40‑5‑147 and 149 (2016).  Thus, convictions which qualify pursuant to O.C.G.A. § 40‑5‑151(e) (2016) for disqualification from driving a commercial motor vehicle must be reported by the clerk to DDS in order to prevent a person who is so disqualified from obtaining a commercial driver’s license at any point in the future.  The responsibility lies with the clerk to determine if the offense qualifies pursuant to O.C.G.A. § 40‑5‑151(e) (2016) or § 40‑5‑54(a)(2) (2016), such that the clerk must report the conviction to DDS.  See O.C.G.A. § 40‑5‑54 (2016).  DDS then bears the responsibility for determining the length of any suspension or disqualification for the convicted individual based upon the report by the clerk.  Id.

Therefore, it is my official opinion that convictions for violations of O.C.G.A. §§ 40‑6‑391(2), (4), (6), and 40‑5‑151 (2016) should be reported by the clerk to the DDS and violations of O.C.G.A. §§ 16‑13‑30(b), 16‑13‑31, and 16‑13‑31.1 (2016) should be reported to DDS pursuant to O.C.G.A. § 40‑5‑54(a)(2) only when the clerk determines that the requirements of O.C.G.A. § 40-5-54(a)(2) have been met.

Prepared by:

Amy M. Radley

Assistant Attorney General

 

APPENDIX A

Automatic suspensions by virtue of conviction alone include:[1]

O.C.G.A. § 40-6-391(a)(2):  Driving under the influence of drugs less safe

O.C.G.A. § 40-6-391(a)(4):  Driving under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this statute to the extent that it is less safe for the person to drive

O.C.G.A. § 40-6-391(a)(6):  Driving under the influence of drugs per se (where there is any amount of a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether any alcohol is present in the person's breath or blood).

APPENDIX B

Suspensions pursuant to O.C.G.A. § 40-5-54(a)(2), by virtue of both a conviction of a felony and a determination by the clerk that a motor vehicle was used in the commission of said felony,  include:[2]

O.C.G.A. § 16-13-30(b):  Unlawful manufacture, delivery, distribution, administration, sale, or possession with intent to distribute any controlled substance.

O.C.G.A. § 16-13-31:  Trafficking in cocaine, illegal drugs, marijuana, or methamphetamine

O.C.G.A. § 16-13-31.1:  Trafficking in ecstasy

O.C.G.A. § 40-5-151(e):  Disqualification from operating a commercial motor vehicle for life is the person convicted of any felony involving the manufacture, distribution, cultivation, sale, transfer of, trafficking in, or dispensing of a controlled substance or marijuana, or possession with intent to manufacture, distribute, cultivate, sell, transfer, traffic in, or dispense a controlled substance or marijuana (and knowingly used a motor vehicle in the commission of said crime)

[1] There are many statutes which provide for an automatic driver’s license suspension upon conviction, but only these three were germane to the request.

[2] There are many statutes which, upon conviction, may result in a driver’s license suspension pursuant to the mandate of O.C.G.A. § 40-5-54(a)(2), such as a felony conviction for carjacking, for kidnapping where a motor vehicle was used to confine or transport the victim, or for aggravated assault where the motor vehicle is the “weapon” used against the victim.  Only the convictions pursuant to the statutes listed above were made part of the request.