Judges in Georgia have broad discretion in imposing jail sentences subject to the maximum sentencing limitations of a particular statute and minimum sentencing limitations which are provided by statute and can be probated unless expressly prohibited from being suspended or probated by statute. The Georgia DUI Statute, O.C.G.A. Sec. 40-6-391, is such a statute as it allows a maximum of one year in jail for a DUI, even a first lifetime DUI, as a misdemeanor and a minimum of ten days in jail for a first DUI in ten years. However, the DUI statute goes on to say that all but 24 hours of the statutory minimum of ten days may be probated. It is important to remember that a judge can give up to a year in prison for infractions as small as speeding or failing to maintain lane as they are technically misdemeanor crimes as well.
O.C.G.A. Sec. 17-10-1(a)(1) Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including service of a probated sentence in the sentencing options system, as provided by Article 9 of Chapter 8 of Title 42, and including the authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has begun, subject to the conditions set out in this subsection; provided, however, that such action shall be subject to the provisions of
Code Section 17-10-6.1.
In Hwang v. State, 293 Ga.App. 815, 668 S.E.2d 325 (2008), The Court of Appeals reversed the trial court, DeKalb County State Court, Judge Wong, for sentencing a person to tens days in jail on a suspended license charge and held that the trial court had discretion to probate or suspend defendant’s ten-day sentence for driving with a suspended license, despite statute providing that defendant “shall” be punished by imprisonment for no less than ten days, in view of other statute providing that judge “may” suspend or probate all or any part of sentence unless crime punishable by life imprisonment, life without parole, or death, or unless a statute explicitly prohibited trial court from probating or suspending the sentence. See generally, O.C.G.A. Sec. 17-10-1.