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Informing a Criminal Defendant on Collateral Consequences of Taking a Plea

The Georgia Supreme Court requires defense attorneys to sufficiently inform and advise the defendant of any possible material collateral consequences that may result from the entry of a contemplated plea in a criminal case.  The possible collateral consequences in each case differ depending on many factors, such as the charged offense, the severity of the crime, and the defendant’s past criminal history.  A defense attorney should discuss all potential outcomes with the criminal client so that the defendant makes an informed decision on whether to accept or refuse a plea offer. 

       A. The Basics

            When a criminal defendant takes a plea, the state prosecutor goes through a long list of questions rather quickly to ensure the defendant understands what he or she is agreeing to, what rights he or she is giving up, and the potential consequences of the plea.  If during these questions the defendant indicates he or she does not understand or does not agree, the court will usually end the plea and require the defense attorney to clarify these issues with the defendant before proceeding.  The court does this because a defendant must knowingly and voluntarily enter a plea for it to be valid.  If the defendant does not understand or agree to any question asked by the prosecutor, this may halt the proceeding and slows down concluding one’s case.  It is therefore imperative that the defense attorney discuss these matters with the defendant prior to the defendant taking the plea in open court.  (For the specific questions that are generally asked by the state prosecutor see the “Plea Colloquy” sheets in the Index attached.) 

There are numerous types of pleas, each having a slightly different effect.  What type of plea is best for one defendant may not be the best—or even available—to another.  What type of plea is entered can also effect both the short and long-term consequences for the defendant.

 

Collateral Consequences

What are Potential Collateral Consequences?  Below is a list of typical collateral consequences.  This list is not exhaustive, so each defendant must communicate with his or her attorney to determine if any other consequences exist.

  • Loss of Civil and Political Rights

  • The denial of access to government assistance

  • Loss of parental rights

  • Deportation

  • Ability to obtain or retain a job

  • Loss of a professional license

  • Conditions of probation (i.e., no alcohol)

  • Adverse effect on current Probation or Parole status

  • Loss of Driving Privilege

The potential collateral consequences of a plea – or conviction – depend on many factors.  The following explains the typical potential collateral consequences in greater detail.  To see collateral consequences of specific charges, see the specific section related to that type of offense.  

      Loss of Civil and Political Rights

       The Right to Vote  

As per O.C.G.A. § 21-2-216, if convicted of a FELONY the defendant may not register, remain registered, or vote in any primary or election.  However, the deprivation of this civil right only lasts so long as the sentence.  The defendant’s right to vote is automatically restored upon the completion of the sentence—which includes any term of probation or parole and payment of all fines and restitution.  However, the defendant must re-register at the local county voting registrar’s office.  

Visit http://sos.ga.gov/index.php/Elections/register_to_vote for local registrar offices.

     

        The Right to Carry a Firearm

As stated in O.C.G.A. §16-11-131, a felony conviction also strips the defendant of the right to possess a firearm.  No convicted felon may receive, possess, or transport a firearm.  If the felon is found in possession of a firearm while on probation, parole, or without having this right restored by the State Board of Pardons and Paroles, he or she will face a mandatory term of incarceration anywhere from one to five years.  However, once the defendant completes his or her sentence and thereafter lives a law-abiding life for FIVE years, the defendant may petition the State Board of Parole and Pardons for reinstatement of the right to possess a firearm.  This is done through a form on the State Board of Pardons and Paroles’ website, found at https://pap.georgia.gov/pardons-restoration-rights.  There is no filing fee for this petition.  Along with the petition, the individual must submit a copy of his or her criminal history, certified dispositions of any charges not on the criminal history, and a self-addressed, stamped envelope. 

The concept of living a law-abiding life means there have been no additional arrests or convictions in the five years following completion of the sentence and that there are no pending charges against the individual.  Additionally, all fines and restitution must be completely paid.  Along with the petition, the individual must submit three reference letters from non-family member citizens of unquestionable integrity.  The letters must state how long the reference has known the individual and in what capacity, and why the reference believes this right should be restored to the individual.  The reference must also give an address and phone number where he or she may be reached.  The letter must be dated, signed, and notarized.  Following the petition and reference letters, the Board will conduct an in-person interview with the petitioner.  The petition process may take six to nine months, or longer.  The granting of this petition only results in the restoration of the right to carry a firearm; it does not affect the criminal history or erase the conviction.  To restore this right, the individual should contact an attorney to assist in the process.   

A misdemeanor conviction does not necessarily strip one of the right to possess a firearm.  However, if the misdemeanor involves domestic violence, the defendant must surrender his or her carry permit and is denied the right to obtain one.  Additionally, a conviction for a misdemeanor involving the use or possession of a controlled substance prevents the defendant from obtaining a carry permit while still on supervision for that offense.  See O.C.G.A. § 16-11-129.  It is possible that the defendant does not lose the right to possess a firearm with a domestic violence charge when the defendant pleads nolo. The Georgia Attorney General issued an opinion finding that because a nolo plea is not deemed a guilty plea, it therefore does not affect civil disqualifications such as the right to possess a firearm. Op. Att’y Gen. 98-2 (1998).

       Other Political Rights  

A convicted felon also loses the right to sit on a jury, run for and hold a public office, and be a notary public.  These rights may be restored upon petition to the State Board of Pardons and Paroles, again found at https://pap.georgia.gov/pardons-restoration-rights.  The individual may petition the Board after successfully completing his or her sentence, paying all fines and restitution, and living a law-abiding life for at least TWO years.  There is no filing fee for this petition.  Along with the petition, the individual must submit a copy of his or her criminal history, certified dispositions of any charges not on the criminal history, and a self-addressed, stamped envelope.  The petition process may take six to nine months, or longer.  The granting of this petition only results in the restoration of said rights; it does not affect the criminal history or erase any conviction.

 

Denial of Access to Governmental Assistance

  1. Federal Student Aid

            Students with criminal convictions have limited eligibility for federal student aid. While incarcerated, a student cannot get a Federal Pell Grant or federal student loans. Typically, once the student is no longer incarcerated he or she is then again eligible for federal student aid. However, if the conviction is for a drug related offense, the answer is not so simple. If the drug related offense occurred while the student was receiving federal aid there are additional questions and a separate worksheet the student must submit to federal aid to determine eligibility. If convicted for a drug-related offense while receiving federal aid, the student may not only be stripped of his or her eligibility to receive aid, but also be liable for returning any funding received during a period of ineligibility.

See https://studentaid.ed.gov/sa/eligibility/criminal-convictions.

   

    2. Food Stamps

            In 2016, Georgia passed a law that now allows convicted felons access to federal aid through food stamps under certain circumstances.  A person convicted of a drug related offense is ineligible for assistance while incarcerated. However, once released, or if the entire sentence is to be served on probation, the convicted person will be eligible for food stamps so long as he or she is compliant with the terms and conditions of parole or probation.  O.G.C.A. § 49-4-22. It is important to note that anyone receiving food stamps (convicted felon or not) is subject to a drug test upon application for food stamps and at any time there is reasonable suspicion to believe the recipient is using illegal drugs. If the individual tests positive, he or she will be ineligible for food stamps in accordance with the time frames set out in O.C.G.A. § 49-4-20.

 

Loss of Parental Rights

            The main issue in every custody case is the best interest of the child(ren). This means that each parent’s character is in question. Not only a conviction, but even an arrest, can be used against one parent as evidence of being unfit. The judge in these circumstances has wide discretion and looks at many facts when making custody determinations. How much weight is given to a prior criminal offense will depend on numerous factors such as the type of offense, who the victim of the offense was, how long ago the offense occurred, and if there are other prior convictions. Obviously if a prior conviction includes violence, the court is allowed to presume the individual is an unfit parent. If there is a prior drug related conviction, the court may require the individual to submit to some drug testing. There is no set formula or clear line, but a criminal conviction could very well be the deciding factor in a child custody matter.

 

Immigration Consequences

When it comes to immigration consequences from a plea, there are numerous factors at play, and this is a constantly changing area of law.  Federal law provides for the deportation of any alien convicted for any of the following offenses: an aggravated felony; a crime of violence; a crime involving moral turpitude; a crime for which a sentence of one year or longer may be imposed; any law relating to a controlled substance other than 30 grams of less of marijuana; certain firearm offenses; domestic violence; and crimes against children.  See Title 8, Chapter 12, of the United States Code.   

It is very important for a defendant to understand that a First Offender plea, a Nolo Contendere plea, or a plea under Conditional Discharge is usually considered a conviction under Federal law.  Typically, Pre-Trial Diversion programs are not considered a conviction.  However, every case is different and nothing is guaranteed.  The defendant must be aware that deportation is possible after any plea, even for a misdemeanor.  Additionally, just an arrest may trigger a hold from U.S. Immigration and Customs Enforcement (“ICE”).  This means that even if the pending criminal charges are dismissed, the individual may still be transferred to ICE custody and deported.  The recent shift and uncertainty in the political landscape makes this area of law very unstable.  An attorney must verify what the current status is on immigration and deportation with each new client who has this potential collateral consequence.      

Ability to Obtain or Retain Employment

            Many employers run background checks on potential new employees. Almost all criminal convictions will show up on that check. Additionally, depending on the type of background check the employer runs, arrests may even show on the report. If the individual pleads under First Offender or Conditional Discharge, the arrest and conviction will appear on a criminal background check while the individual is still completing the program. Once the terms and conditions of the First Offender program or Conditional Discharge program are successfully completed, a conviction will not show up on a background check; however, the arrest will likely still show.

All arrests, convictions, and record restrictions will show up on a background check if the employer is a government agency, such as the court system or law enforcement. It is important to be honest on an employment application, so it helps to know what your plea means—whether it is considered a conviction or not. Many companies have internal policies that prohibit illegal drug usage or arrests for driving under the influence. If these are the terms of employment, an employer can fire an employee for such a conviction or potentially even an arrest for that type of crime.

 

Loss of a Professional License

            There are numerous professional licenses that can be affected by a criminal conviction.  It is important for a defendant to communicate any such license with his or her attorney so that the attorney can look into the requirements of holding that license. Some licenses that may be affected are a commercial driver’s license (CDL), a real estate license, an accountant license, an insurance license, and many more. Each organization that oversees such licenses has individual rules and regulations regarding the qualifications to have a valid license in the field.

            Georgia laws allows any professional licensing board to deny a license if the applicant has been convicted of a felony or any crime involving moral turpitude. This is also the case if the person was given First Offender status and successfully completed the program.  O.C.G.A. § 43-1-19. If the defendant holds any professional license or plans to seek a professional license in the future, it is imperative to discuss this with the attorney prior to entering a plea.

 

 

Conditions of Probation (i.e., no alcohol)

            Following any plea, the defendant is either incarcerated or sentenced to a term on probation. If the defendant is incarcerated, that term is typically followed by a period on parole and/or probation. Probation and state parole both come with terms and conditions which must be strictly followed. The terms and conditions of parole are dictated by the Parole Board.  However, the terms and conditions of probation are entirely controlled by the sentencing court. Some probation conditions are pretty standard: monthly reporting to probation officer, paying a monthly reporting fee, no use of illegal drugs, no use of alcohol, agreeing to submit to random drug and alcohol tests, and community service hours. However, there are other more specific special probation conditions a judge may impose such as mandatory rehabilitation programs, drug treatment, anger management, ordering the defendant to stay away from a particular person or place, and a Fourth Amendment waiver.  

 

 

Adverse Effect on Current Probation or Parole Status

            One condition that everyone on parole or probation must follow is to not commit a new offense. When a probationer or parolee commits a new offense, he or she will be subject to probation revocation or parole revocation, whichever is applicable. A probation revocation is conducted through a hearing where the judge hears from the prosecutor, the probation officer, and the defendant (or defense attorney) to determine if the court should revoke the probation. What it means to revoke is that the freedom granted to the defendant, that being the opportunity to not be incarcerated while still serving a sentence, is taken away and the defendant will be ordered to be incarcerated for a period of time. This period of time could be the remaining time left on his or her probation sentence.

            In order for a court to revoke there does not need to be a new conviction, or even a new arrest. The court only needs to find by the preponderance of the evidence that the probationer violated some term of probation in order to revoke. It is also important to note that the exclusionary rule does not apply in probation or parole revocation proceedings. Therefore, if a probationer is arrested on new charges that are subsequently dismissed because they were based on evidence obtained as a result of an illegal search, that evidence may still be considered in whether to revoke probation.

 

Loss of Driving Privilege

Certain offenses, such as DUI, are punished by the immediate suspension of one’s driver’s license upon conviction.  However, other offenses may result in the suspension of one’s driver’s license depending on certain circumstances.  Georgia works on a point system when dealing with traffic violations.  Once a driver has accumulated 15 points or more within any consecutive 24-month period, his or her driver’s license is immediately suspended without the opportunity for a hearing.  O.C.G.A. § 40-5-57 sets forth the point system, the offenses that result in the assessment of points, and the number of points for those offenses.  These include such offenses as unlawful passing of a school bus, not having a child in proper safety restraint, and texting while driving.  Many of these offenses are strictly fine based (i.e., speeding).  With the payment of the fine, the applicable points are assessed to one’s license.

The offenses that result in mandatory suspension of one’s driver’s license include DUI, homicide by vehicle, hit and run or leaving the scene of an accident, racing, and operating a vehicle with a revoked, canceled, or suspended license.  Additionally, failure to comply with a child support order results in the suspension of one’s driver’s license.

Many of the same offenses that impact a regular Class C driver’s privilege will also impact a driver’s privilege with a commercial driver’s license (“CDL”).  However, it is separate and distinct from a basic license as a CDL has more stringent requirements.  The Official Code of Georgia Annotated, Title 40, Chapter 5, Article 7, provides all the provisions concerning CDLs.  O.C.G.A. § 40-5-151 details time of suspension based on different charges.  For example, a conviction for DUI will not only suspend your regular Class C license to drive a personal vehicle, it will also suspend the use of a CDL for not less than a year. 

 

 

Different Ways to Plea

     

     First Offender* (available for felony or misdemeanor charges)

According to O.C.G.A. § 42-8-60, First Offender is a legislatively created opportunity for those who have not previously been convicted of a felony in this state or any other state for an offense that would be a felony in Georgia.  A defendant may use this for a felony or a misdemeanor charge.  When a defendant pleads under First Offender the court defers further proceedings and either places the defendant on probation or sentences the defendant to confinement.  The court does not enter a judgment or adjudicate guilt.  It is important to note that it is solely in the discretion of the trial court judge to accept a plea or sentence under First Offender status.  A defendant does not have a right to be sentenced under First Offender and aggravating factors, such as the specific facts of the case, the defendant’s criminal history, or the defendant’s behavior observed during the plea, can impact whether the judge allows a First Offender plea.

First Offender status has its advantages and disadvantages.  Its advantage is, upon successful completion of the term of confinement or the term of probation and its conditions, the defendant is exonerated of guilt and the case is discharged as a matter of law.  This means the defendant will not be considered to have a criminal conviction.  However, if the defendant violates the terms of probation or is convicted of another crime during the term of the first offender status, the court may adjudicate the defendant guilty of the original charge and sentence him or her according to law.  Should the court put the defendant on probation in accordance with the First Offender status, it is important that the defendant understand what this means.  The defendant will be on probation just as if he or she was found guilty.  The defendant will be required to adhere to all probationary conditions, which can include monthly reporting to a probation officer, random drug screens, rehab classes, anger management classes, and executing a Fourth Amendment waiver.  Probation also requires the defendant to refrain from illegal drugs and drinking alcohol.  A violation of any of these conditions may result in the court revoking the First Offender status and adjudicating the defendant guilty.

There are numerous charges for which First Offender cannot be used including driving under the influence and certain serious violent felonies.  (For a full list of excluded crimes, see O.C.G.A. § 42-8-60(j)).  Additionally, a defendant can only use First Offender once and so it is very important for a defendant to understand all the consequences prior to utilizing this option if it is available to him or her.

 

     Conditional Discharge* (available for certain drug related charges)

As per O.C.G.A. § 16-13-2, Conditional discharge is potentially available to a defendant who does not have a prior drug conviction who is now facing certain drug related charges.  Much like First Offender, the court will withhold adjudication, defer further proceedings, and place the defendant on probation.  The term of probation cannot exceed three years.  O.C.G.A. § 16-13-2(a).  Probation will include drug-intensive rehabilitation including medical treatment if necessary.  Should the defendant successfully complete the probationary period, the court will discharge the defendant and the charges will be dismissed.  This results in the defendant not having a conviction.  However, should the defendant violate one of the terms of probation, the court will adjudicate the defendant guilty of the original charge and impose a sentence according to the law.  A defendant can only use Conditional Discharge once and so it is very important for a defendant to understand all the consequences prior to utilizing this option if it is available to him or her.

 

      Pre-Trial Diversion*

Pre-trial diversion is a program offered for misdemeanor and felony offenses.  This program, if successfully completed, results in a dismissal of criminal charges.  This program is an agreement between the defendant and the prosecutor, not the court.  The program requires a one-time fee as well as supervision fees.  There are also similar conditions to probation, such as treatment and counseling, community service, random drug and alcohol screens, and any other applicable fines.  If completed, not only are the charges dismissed but the record is restricted such that no one (other than law enforcement) will see the arrest on a background check.  If the defendant violates one of the terms of the diversion program, the state may proceed in prosecuting the case just as if the diversion program did not happen at all.  This means that if found guilty, there is no credit given for time done during community service or the random drug and alcohol screens. 

 

     Alford Plea (available for felony or misdemeanor charges)

Under North Carolina v. Alford, 400 U.S. 25 (1970), an Alford plea is a guilty plea.  However, the defendant maintains that he or she is innocent but acknowledges there is overwhelming evidence showing guilty such that if it went to trial, the state would likely meet their burden of proving guilt beyond a reasonable doubt.  Because the defendant maintains his or her innocence and does not admit the alleged facts, the court must ensure there is a strong factual basis in order to accept this type of plea.  The consequences of an Alford plea are the same as a guilty plea, in theory.  However, some judges may impose a harsher sentence when a defendant declines to accept responsibility for the alleged charges and pleads under Alford.  Like a guilty plea, an Alford plea is admissible in a subsequent prosecution as similar evidence.

 

     Nolo Contendere (available for any misdemeanor or felony other than capital felony)

A plea of Nolo Contendere is entirely statutory in nature and is found in O.C.G.A. § 17-7-95. Entering a nolo plea, as it is commonly referred to, is a privilege rather than a right, as it is completely within the court’s discretion whether to accept such a plea.  A nolo plea is neither a guilty nor not guilty plea.  It is essentially an assertion by the defendant that he or she does not wish to contest the truth of the charges.

A nolo plea may be entered in any criminal case except a capital felony offense.  This plea however, does not have any bearing on the sentence imposed.  A judge may sentence the defendant under a nolo plea to any sentence provided by law for the crime charged, just as if the defendant had pled guilty or been convicted by a jury.  This may include jail time, probation, rehabilitation classes or programs, license suspension, and fines.

It is important to note that a nolo plea is different from an Alford Plea (see that section).  A nolo plea cannot be used as an admission of guilt and can therefore cannot be used as an admission of guilt in a criminal or civil case.  Generally, a defendant can only use a nolo plea once every five years.  However, depending on the judge sometimes a defendant can use a second nolo plea in a five-year period when it is for a different offense.

 

* When a defendant pleads into one of these programs, the attorney must make sure there is an accusation or indictment filed.  If there is not, there is a chance it will not be considered a prosecution for double jeopardy purposes.  See Palmer v. State, 341 Ga. App. 433, 438 (2017).

Specific Collateral Consequences Based on Type of Charge

Sex Offender Conditions

When convicted as a sex offender, the main collateral consequence of that conviction is registering as a sex offender. However, there are numerous other conditions that the convicted sex offender must comply with.  For instance, the convicted sex offender:

  • cannot use any “900” telephone numbers;

  • cannot rent a post office box without advance permission and in writing from your probation officer;

  • cannot purchase, possess, or consume alcohol;

  • cannot have any contact, direct or indirect, with any child under the age of 18, this includes his or her own children.  If the offender has any incidental contact with children, he or she must be civil and courteous to the child and immediately remove himself or herself from the situation.  Additionally, the offender must discuss it with his or her probation officer at their next meeting;     

  • must abide by any curfew set by the probation officer;

  • is never allowed to drive alone, especially through parks, playgrounds, school zones, or other areas where children commonly are located;

  • must keep a driving log and make it available to the probation officer as requested; 

  • cannot consume any drugs unless pursuant to a legal doctor’s prescription;

  • must submit to, and if necessary pay for, any testing for alcohol or drugs;

  • must have approval from his or her probation officer for any employment;

  • must attend and participate in sex offender evaluation and treatment at a program approved by the probation officer, and is financially responsible for these programs and must complete them successfully;

  • cannot hitchhike or pick up a hitchhiker;

  • cannot create, possess, access or control any type of photograph, video, rendering, or digital imagery of any minor;

  • must submit to any program of psychological or physiological assessment the probation officer directs, and do so at your own expense; 

  • cannot marry or date someone who has a child or children under 18, unless approved in advance and in writing by the probation officer.  The offender is also required to notify such individual of his or her criminal history; 

  • must sign releases to give the probation officer the ability to communicate with other professionals involved in the offender’s treatment, including a therapist;

  • cannot change his or her residence without prior approval of the probation officer;

  • may not live in the same home with a child under 18, including his or her own children, unless approved in advance and in writing by the Court;

  • waives his or her Fourth Amendment rights and must allow a search by officers or probation officer should there be reasonable cause to believe he or she is in violation of some term of probation.  Additionally, the offender agrees that any discovered evidence during such a search can be used as evidence in any judicial proceedings or trial;

  • cannot possess or subscribe to any sexually oriented or sexually stimulating material to include mail, computer, or television, nor visit any place where such material or entertainment is available;

  • may have absolutely no contact with the victim, including written communication, telephone communication, electronic communication, or communication through a third party except under circumstances approved in advance and in writing by the Court; and

  •  cannot enter, travel past, or loiter near where the victim resides.

In addition to these, the Judge may also include other specific restrictions depending on the case.

 

Gang Related Charges

If convicted of a gang related offense, there are normally special gang conditions of probation in addition to the general conditions of probation. They include:

  • No communication or associations with any street gang, a member of any street gang, or person associated with any street gang.  This means that if the defendant’s brother is in a gang, he or she is not allowed to have any communication or association with him. 

  • The defendant must have a valid Georgia driver’s license or ID card on his or her person at all times and must show it to an officer if asked.  If an officer asks for the defendant’s name, address, and/or date of birth, he or she must give truthful responses. 

  • If the defendant is arrested or has any contact with any law enforcement agency he or she must provide notice of that contact or arrest to his or her probation officer within 24 hours.  The notice must be in writing and include the date, time, name of agency, name of officer, and what, if any, charges were made, including traffic charges. 

  • The defendant also may not be present in any courtroom unless he or she is a party or witness to the proceeding.  That means the defendant cannot even attend a friend’s trial for moral support. 

  • He or she cannot visit or frequent any school grounds unless the defendant is a registered student at that school. 

  • The defendant cannot be the driver or occupant of a stolen vehicle;

  • He or she cannot own, possess, sell, transport, or even be in the same location as an explosive device, weapon, firearm, replica of a weapon, or ammunition. This includes places where these objects lawfully are (i.e., hunting grounds, target range). 

  • The defendant may carry a cell phone but the probation officer may ask, and the defendant must allow him or her, to check it.  Otherwise, the defendant may not possess any pager, cell phone, or other similar portable device. 

  • The defendant cannot wear, display, use or possess any insignias, emblems, badges, buttons, caps, hats, jackets, shoes, flags, scarves, bandanas, shirts, or other articles which are evidence of affiliation with or membership in any street gang; cannot display any gang signs or even gestures; and

  • Must comply with any curfew imposed by the probation officer. 

  • The court may even require the defendant to stay away from a particular area or residence.

Violent Offense

This type of offense typically comes with some type of anger management, family violence intervention, or similar treatment program.  In addition, there is almost always the special condition of no contact with the victim.  This means the defendant cannot directly or indirectly communicate with or see the victim.  A violent offense typically precludes the defendant from entering some treatment courts, such as Mental Health Court. Whether the charge is a misdemeanor offense or felony offense will also determine how stringent the conditions of probation are.

 

Insurance/Driver’s License Charges

There is mandatory suspension of one’s driver’s license if convicted of: (1) Driving under the Influence (OCGA 40-6-391); (2) Homicide by vehicle (OCGA 40-6-393); (3) any felony in the commission of which a motor vehicle is used; (4) hit and run or leaving the scene of an accident in violation of OCGA 40-6-270; (5) racing on highways and streets; (6) using a motor vehicle in fleeing or attempting to elude an officer; or (7) operating a motor vehicle with a revoked, canceled, or suspended registration in violation of OCGA 40-6-15 (6 months).  There is also typically a fee associated with reinstating a license once the sentence is over.  This fee usually runs about $200.  

If convicted of failing to show proof of or have the required minimum insurance, a defendant’s license will be suspended for 60 days. OCGA 40-5-70.  If it is a second or subsequent offense, suspension would be for 90 days.  Some types of pleas will not count as a conviction, refer to statute.

A commercial driver’s license can also be suspended upon the conviction of certain offenses.  See 40-5-151.  A CDL will be suspended for a year for a conviction of DUI (40-6-391), hit and run, racing on highways or streets, operating on a suspended registration, and many more violations.

Please remember this is not a complete and exhaustive list of all potential collateral consequences.  A defendant must discuss personal circumstances with an attorney to determine if more or others apply.

 

 

INDEX

  1. Misdemeanor Plea Colloquy

  2. Felony Plea Colloquy

 

 

I. Misdemeanor Plea Colloquy[2]

The prosecutor will ask the defendant the following questions under oath:

  • State your name for the record

  • Have you read the accusation and do you understand the charges?

  • Have you reviewed the waiver of rights form and do you understand it?

  • Is it your intention to plead guilty/nolo to the counts of the accusation?

  • Do you understand that by entering a plea you are giving up your right to a trial by jury?

  • Do you understand that the rights to a trial by jury include:

    • The right to be tried by a jury;

    • The right to be presumed innocent;

    • The right to be represented by your attorney throughout your case;

    • The right to subpoena witnesses into court on your behalf;

    • The right to confront witnesses against you;

    • The right to not incriminate yourself.

  • Are you entering the plea freely and voluntarily?

  • Are you under the influence of any drugs, alcohol, or medication that may affect your judgment?

  • Are you currently on probation or parole?

    • If so, a plea may have an adverse effect on your probation or parole

  • Are you a US citizen?

    • If no, a plea may have an adverse effect on your immigration status

  • If you feel your rights have been violated or there were errors in the plea proceedings, you have 180 days to challenge a traffic offense, 12 months to challenge a misdemeanor, and 4 years to challenge a felony by way of Habeas Corpus Petition.

  • If DRUG or VIOLENT offense: Do you have a permit to carry a concealed weapon?

(If pleading Nolo, Alford, or into conditional discharge, diversion, or First Offender, there will be more questions related to the specific plea.)

 

 

II. Felony Plea Colloquy[3]

The prosecutor will ask the defendant the following questions under oath:

  • State your name, your age, and your date of birth

  • Are you now under the influence of any drugs, medicine, or alcohol?

  • How far did you go in school?

  • Can you read and write the English language?

  • Have you read and examined the indictment or accusation charging you in this case?

  • Do you fully understand the charges pending against you today?

  • Do you understand that there are certain rights you would have at trial and that by pleading guilty today you are giving up those rights?

  • Those rights are:

    • The right to a Trial by jury

    • The right to be presumed innocent

    • The right to confront witnesses against you

    • The right to subpoena witnesses for your defense

    • The right to testify yourself and to offer other evidence

    • The right to have an attorney to assist you throughout all the proceedings

    • The right not to incriminate yourself

  • Do you understand that if you plead “not guilty” or if you remain silent and enter no plea at all, the state would be required to try you on these charges by jury?

  • [if applicable] Do you understand that you are not required to plead guilty or not guilty to the felony charge unless the Grand Jury has heard sworn testimony and then charged you in an indictment?

  • Do you understand that for the offense of ______ you can be sentenced from ____ to ___ years? Listing the maximum sentence.

  • Are you now serving any sentence in confinement, or are you now on probation or parole?

  • [if applicable] Do you understand that any sentence given by this court can be made to start after the completion of any sentence you may now be serving?

  • [if applicable] Do you understand that if you are on probation or parole, any plea of guilty in this case could possibly result in a revocation of your probation or parole?

  • The state has recommended a sentence of _______ (or state that it is a non-negotiated or capped plea). Do you understand that the court is not required to follow this recommendation but can sentence you to the maximum permitted by law?

  • Do you understand that if the court does not follow the stat’s recommendation you have the right to withdraw your guilty plea?

  • Should the court’s sentence include time to be served on probation, you will be required to obey the following general conditions of probation:

    • Do not violate the criminal laws of any governmental unit

    • Avoid injurious and vicious habits, especially alcohol and narcotics and other dangerous drugs unless lawfully prescribed

    • Avoid persons or places or disreputable or harmful character

    • Report to your probation supervisor as directed and permit that supervisor to visit you at home or elsewhere

    • Work faithfully at suitable employment insofar as may be possible

    • Do not change your place of abode or work, move outside the jurisdiction of the court, or leave the state for any period of time without the prior permission of your probation supervisor. If you are permitted to leave the state of Georgia, you agree to waive extradition from wherever you are and not contest any effort by that state to return you to Georgia.

    • Support your legal dependents to the best of your ability

    • Submit to evaluations and testing relating to rehabilitation and participate in and successfully complete rehabilitative programing as directed by probation or parole

  • The state’s sentence recommendation includes the following special conditions of probation: (if applicable)

    • Restitution

    • 4th waiver

    • Sex offender registry

    • Treatment

  • Are you entering your plea of guilty with an understanding of these conditions?

  • Has anyone used force, threats, or promises which caused you to plead guilty against your will?

  • Are you satisfied with what your lawyer has done for you in this case?

  • Do you need any additional time to talk to your lawyer before we continue with this plea?

  • Have you understood all the questions you have answered so far?

  • Understanding all of your rights, do you wish to enter a guilty plea to this/these offenses?

  • Is your decision to plead guilty made freely and voluntarily?

  • Did you in fact commit the offenses to which you are now pleading guilty?

  • Are the facts of this case, as previously outlined to the court by the state, true and correct?

  • [First Offender or Alford if applicable]

  • Are you a citizen of the United States?

    • If No: Do you understand that you will be deported even though you may be here legally?

  • Do you understand that if you wish to challenge this plea you may do so by means of a habeas corpus petition and that you only have Four years (for Felony counts) and One year (for Misdemeanor counts) from today’s date within which to file that petition?

  • Do you have a GA weapons carry license? 

(If pleading Nolo, Alford, or into conditional discharge, diversion, or First Offender, there will be more questions related to the specific plea.)

 

This article is to help defense attorneys in counseling clients.  By no means should any attorney rely solely on this document for informing a client on pleas, as each client’s situation is unique.  This article is not exhaustive of all potential plea consequences, and every attorney should inquire of the client to determine if individualized circumstances give rise to different or additional plea consequences.

THIS ARTICLE CREATED FOR SOLE USE BY THE GEARY LAW FIRM, P.C.