Hale v. State

• Decision Date: 08 September 1988
• Docket Number: No. 76451,76451
• Citation: 188 Ga.App. 524,373 S.E.2d 250
• Parties: HALE v. The STATE.
• Court: Georgia Court of Appeals

Page 250

373 S.E.2d 250

188 Ga.App. 524

HALE v. The STATE.

No. 76451.

Court of Appeals of Georgia.

Sept. 8, 1988.

Rehearing Denied Sept. 23, 1988.

Certiorari Denied Oct. 26, 1988.

William L. Reilly, Ellijay, for appellant.

Roger Queen, Dist. Atty., Angela A. Byne, Asst. Dist. Atty., for appellee.

POPE, Judge.

Jeffery Dennis Hale appeals his conviction of charges of driving with a suspended license and driving under the influence of alcohol.

1. Hale contends that proof of his conviction of driving with a suspended license was insufficient because "[o]ne of the elements of [the offense] is notice to the defendant of action in suspending the license, and absent proof by the State of actual or legal notice to the defendant a conviction for that offense cannot be sustained. [Cits.]" Sumner v. State, 184 Ga.App. 374, 375, 361 S.E.2d 536 (1987). At issue here is what constitutes legal notice, if no actual notice has been shown.

The Administrative Procedure Act provides that "[n]o revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has sent notice, by certified mail to the licensee, of individual facts or conduct which warrant the intended action and the licensee has been given an opportunity to show compliance with all lawful requirements for the retention of the license except where: ... [t]he agency's order is expressly required, by a judgment or a statute, to be made without the right to a hearing or continuance of any type." OCGA § 50-13-18 (c) (2).

OCGA § 40-5-70 (a) expressly requires that "[t]he driver's license of any person convicted of violating Code Section 40-6-391 [the DUI provision] shall by operation of law be suspended, and such suspension shall be subject to the terms and conditions provided in subsection (b) of this Code section." (Emphasis supplied.) The italicized language does not appear in other code sections governing driver's license suspensions. See OCGA §§ 40-5-51 through 40-5-63. Indeed, each of these provisions delineates the specific notice to be given. OCGA § 40-5-70 (b) sets forth the lengths and terms of suspensions upon the first, second and third convictions of DUI, and subsection (c) states that the period of suspension begins on the date of the DUI conviction. It thus appears that the legislature intended OCGA § 40-5-70 to effectuate suspension or revocation automatically upon a conviction for DUI, the notice being the trial for violation of OCGA § 40-6-391; i.e., notice "by operation of law." Such a legislative intent is clearly contemplated in OCGA § 50-13-18 (c) which dispenses with notice requirements "where ... [suspension] is expressly required by ... statute."

Hale was charged with notice of this law by OCGA § 1-3-6. Consequently, due process does not require that he be afforded a hearing before the decision suspending his license was made, because his driver's license was suspended "not by a decision to revoke but by operation of law by his [conviction for DUI]" City Council of St. Marys v. Crump, 251 Ga. 594, 595(2), 308 S.E.2d 180 (1983). "The term 'legal notice' has been referred to as the same as 'constructive notice.' " 66 C.J.S. Notice, § 8 (1950). "Constructive notice is information or knowledge of a fact imputed by law because the fact could have been discovered by proper diligence and the situation was such as to cast upon a person the duty to inquire into it. Implied notice is that notice which is inferred or imputed to a party by reason of his knowledge of facts or circumstances collateral to the main fact, of such a character as to put him upon inquiry, and which, if inquiry were followed up with due diligence, would lead him directly to the knowledge of the main fact. [Cits.]" Hamilton v. Edwards, 245 Ga. 810, 811-812, 267 S.E.2d 246 (1980). We therefore conclude that the State met its burden of proving that Hale received legal notice, as contemplated by the statutory scheme, that he was driving with a suspended license.

2. The second element of proof necessary for a conviction of this offense is evidence showing that the defendant's license has in fact been suspended. See Barrett v. State, 173 Ga.App. 452(1), 326 S.E.2d 816 (1985). The State offered Hale's record of driving offenses as such evidence. This record showed at the top that the status of Hale's license was suspended and listed nine offenses, including two DUI convictions. Hale objected to admission of the entire record as irrelevant and prejudicial in light of the fact that he was on trial for a third DUI offense. Although the State indicated that it would...