Unconstitutional...

Judicial Council of Georgia

Administrative Office of the Courts
David L. Ratley Reply to:
Director Research
RESEARCH ANALYSIS MEMORANDUM
DATE: March 8, 2004
RE: Driver’s Licenses

QUESTION PRESENTED
IS IT UNCONSTITUTIONAL TO TAKE A DUI DEFENDANT’S LICENSE AND SEND IT TO THE STATE WITHIN 30 DAYS WITHOUT THERE FIRST BEING A HEARING OR ADJUDICATION OF THE CASE?

BRIEF ANSWER
Yes, it can be considered unconstitutional.

ANALYSIS
Due process is relevant to a discussion on the constitutionality of taking a DUI defendant’s license and sending it to the state within 30 days without any prior hearing. Due process refers to guaranteeing a person fair procedures and protecting an individual’s property from unfair governmental influence1. In Bell v. Burson2, the U.S. Supreme Court said that the state must generally afford a prior hearing before a driver’s license is suspended or terminated. The only apparent caveat to that rule is when a post-suspension hearing is allowed to satisfy due process where a statute mandates suspension of a driver’s license for refusing to take a breathalyzer test upon arrest for drunk driving3.
Furthermore, although, O.C.G.A. § 40-5-67 states that “whenever any resident or nonresident person is charged with violating Code Section 40-6-391 (DUI), the law enforcement officer shall take the driver’s license of the person so charged”. This code section does not provide that a law enforcement officer shall take a DUI defendant’s driver’s license and forward it to the state. It does provide, however, that the license be attached to the court’s copy of the uniform traffic citation and complaint form forwarded to the court having jurisdiction of the offense. It also provides that a copy of the uniform traffic citation and the complaint form be forwarded, within ten days of issue, to the department. The Code mentions nothing about a law enforcement officer forwarding the driver’s license of a DUI defendant to the state, per se.

CONCLUSION
Seizing a DUI defendant’s driver’s license before any prior hearing may be deemed a violation of that defendant’s due process rights. Therefore, it can be considered unconstitutional. Furthermore, in situations where the driver’s license of a DUI defendant is seized, the Code mentions nothing of forwarding that license to the state.

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