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Rhodes v. State

O.C.G.A. § 40-6-391 f-prohibiting sentencing under the First Offender Act in DUI cases-is not unconstitutional, since the legislative classification is rationally related to a legitimate government interest-protecting the public from the threat of any person, who drives or has actual physical control of a moving vehicle in violation of the state's DUI laws.

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In 2007, William Todd Rhodes entered a negotiated plea of nolo contendere to DUI charges. Rhodes appeals, arguing that the exclusion of DUI offenses from the coverage of the First Offender Act1 violates his right to the equal protection of the laws guaranteed by the United States and Georgia Constitutions. Finding no merit in his argument, we affirm. In August 2005, Rhodes was charged by accusation with two offenses under OCGA § 40-6-391: 1 driving while under the influence of alcohol to the extent that it was less safe for him to drive;2 and 2 driving with a blood-alcohol concentration of .08 or more.3 Although Rhodes initially demanded a jury trial, he eventually entered into a negotiated plea agreement with the district attorney which was accepted by the trial court.

At the June 13, 2007 plea hearing, Rhodes admitted the factual basis of the charges against him and proffered a plea of nolo contendere to driving with a blood-alcohol concentration of .08 or more, with which the charge of driving less safe would then merge. However, Rhodes asked the trial court to sentence him under the First Offender Act, even though he acknowledged that OCGA § 40-6-391 f expressly prohibits sentencing under the First Offender Act in DUI cases. Rhodes argued that this restriction on the First Offender Act’s scope is unconstitutional because it violates his right to the equal protection of the laws guaranteed by the United States and Georgia Constitutions.4

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