On August 11, 2002, Mark Vincent Villella was indicted for driving under the influence of alcohol to the extent that he was a less safe driver OCGA § 40-6-391 a 1 and driving with an unlawful alcohol concentration OCGA § 40-6-391 a 5. Villella entered a negotiated plea of guilty to the DUI less safe charge and the State nolle prossed the second count. He was sentenced to, among other things, 12 months probation and 240 hours of community service, fined $1000, and required to turn in his license plate. The State appeals, contending that the trial court erred in omitting an ignition lock order from Villella’s sentence as required by OCGA § 42-8-111 a. The evidence shows that the DUI conviction was Villella’s second in five years. After he entered his negotiated plea, the State offered its sentencing recommendation for Villella to serve a period of twelve months, pay a fine in the amount of a thousand dollars. Serve sixty days either in confinement or through the work release program, thirty days work alternative program, alcohol and drug evaluation, victim impact panel, ignition interlock order, tag forfeiture order and publication order. Villella responded that he was in the process of relocating to Florida and liquidating all of his assets, including his home and vehicle. He said that he had an unrelated buyer for his car and that his new job in Florida would not require him to drive. He also asked that “whatever time he does to be straight time,” “start anytime after July first,”and “instead of work alternative, community service.” Villella then asked the trial court not to implement the interlock device. His counsel argued that
since he is relocating, interlock won’t do him any good in Florida, I prefer that he just do the straight suspension and he will have to wait eighteen months for application. I’m sort of in a situation where I think he is better off to not have the order and have the eighteen months of hard suspension and then he can apply for reinstatement. The State responded that “I could be wrong, but I believe an interlock order is required in a second in five DUI.” Villella said that it was optional, “because it wouldn’t make any sense to have that required on out-of-state drivers.” The court agreed that the statutory requirement of an interlock device was discretionary, stating that the statute “says may order,” and imposed the above-mentioned sentence, which did not include an ignition interlock order.
