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Posted: Thursday, November 1st 2012 at 3:14pm

Gainesville attorney representing appellant in challenge to Ga. driver's license law

By Staff
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ATLANTA - A Mexican citizen who has been living in Georgia is challenging as unconstitutional the state law that requires driver’s licenses, arguing that it discriminates against undocumented immigrants and creates an incentive for law enforcement officers to racially profile.

The state Supreme Court will hear arguments in the case Monday.

According to court documents, in January 2010, Officer David Cesar with the Gwinnett County Police Department pulled over a van driven by Fernando Castillo-Solis after determining from a computer check that the vehicle’s registration had been suspended.

Castillo-Solis is represented by Gainesville attorney Arturo Corso.

When Cesar discovered Castillo-Solis was also driving without a license, he issued two citations, and in August 2010, the State filed a two-count accusation against Castillo-Solis, charging him with No Valid Driver’s License and Failure to Register Vehicle.

Castillo-Solis then filed motions to suppress the evidence and void or “quash” the No License statute as unconstitutional. At a hearing on the motion, the parties agreed that Castillo-Solis was a citizen of Mexico who had been living in Georgia for 10 years.

The state called an attorney as a witness who testified that undocumented immigrants who encounter U.S. Immigration and Customs Enforcement through the 287(g) program are subject to deportation. She also testified that an undocumented immigrant can be deported for driving without a driver’s license. The 287(g) program is a joint federal and state program that allows local law enforcement agencies to partner with ICE to receive delegated authority for immigration enforcement within their jurisdictions.

In Georgia, Cobb, Gwinnett, Hall and Whitfield counties’ sheriffs’ offices, as well as the Georgia Department of Public Safety, have 287(g) agreements with ICE. In September 2010, the trial court denied Castillo-Solis’ motion to suppress the evidence and find the statute unconstitutional. Prior to trial on the charges, Castillo-Solis now appeals to the state Supreme Court.


His attorney argues that the trial court erred in denying the motion.

He argues that 2008 amendments to the No License statute, which increased penalties and required fingerprinting upon conviction, along with the 287(g) program at the Gwinnett jail “work in concert to create a discriminatory scheme to target undocumented immigrants for arrest and deportation from the U.S.”

The attorney argues the statute, Official Code of Georgia § 40-5-20, is unconstitutional because it contains a “retroactive amnesty provision” for Georgia citizens only, which constitutes an “irrevocable special privilege” that is prohibited by the Georgia Constitution. Under the statute, it is a crime to drive without a Georgia driver’s license after being a resident for 30 days. However, if a Georgia citizen commits this crime but obtains a license prior to trial, the statute says “he or she shall not be guilty.

” As an undocumented immigrant, Castillo-Solis may not ever obtain a license. Therefore, he is denied the right to defend his cause, his attorney argues. The No License statute violates his due process and equal protection rights by denying him a right to a fair trial through the denial of a defense as a result of his not being able to obtain a Georgia driver’s license prior to trial. “[U]ndocumented aliens are denied this absolute defense when they are denied the right to obtain a Georgia license prior to trial,” the attorney argues in briefs.

“This was the very purpose of the new law – to round up undocumented aliens in a dragnet of license enforcement, and set free any Georgia citizens caught up in the process. However, a bare desire to harm a politically unpopular group is not a legitimate state interest.” The law, he says, is “arbitrary an irrational; it creates a statutory directive for ‘selective prosecution.’”

He further contends "The No License statute has created a new 'suspect class' of undocumented immigrants and “has failed to demonstrate a compelling state interest in treating undocumented aliens differently than others similarly situated and being prosecuted for driving without a license. Suspect classes have traditionally been defined as those categories of people who have been the targets of discrimination born of deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. There can be no doubt of the marked increase in legislative efforts in Georgia and across the country to target a politically unpopular group, undocumented aliens….

While there may be legitimate reasons for government to treat undocumented aliens differently than other persons in particular processes such as the voting booth, there is no reason to uniquely deprive them of a fair trial and an absolute defense when they would otherwise be capable of safe driving practices.” If an unscrupulous officer conducts an illegal stop as a pretext to inquire into the motorist’s license status and thus his immigration status, “what judge will ever hear the suppression motion if the motorist is deported by the expedited process known as 287(g)?” the attorney argues. “It creates an incentive for officers to racially profile and unreasonably stop motorists.”


The state argues that Castillo-Solis has no right or standing to challenge the Georgia statute as unconstitutional.

“In the case at bar, Appellant never had a driver’s license, nor did he have a right to a license,” the solicitor-general argues in briefs on behalf of the state. “The Appellant did not qualify for a Georgia driver’s license because he is not lawfully present in the United States of America.”

Only Georgia residents lawfully in this country are eligible to obtain a Georgia driver’s license under state law. Castillo-Solis has not demonstrated how he was denied the right to a fair trial or to a defense because under the law, he did not qualify for the defense.

The state contends Castillo-Solis has misconstrued the statute’s “safe harbor” or amnesty provision as discriminatory because it applies equally to all drivers. Under previous court decisions, “the charge can only be dismissed if the person, whatever their legal status, presents proof at trial that he or she actually was validly licensed to drive at the time of the traffic stop,” the state writes in briefs.

The trial court properly denied Castillo-Solis’ motion to throw out the statute because the No License statute does not violate the Georgia or U.S.Constitutions, the state contends. Driving is a privilege, not a right, the state argues, and driving without a license is against the law.

“Therefore, the Appellant’s argument that § 40-5-20 interferes with a fundamental right is without merit,” the state argues. Furthermore, undocumented immigrants are neither a “protected class” nor a “suspect class.”

“Using the words of the U.S. District Court of the Northern District of Georgia, ‘the Appellant’s argument begins with a remarkable presumption that an illegal and undocumented alien should be afforded the same fundamental rights as a citizen or a lawful resident alien.’”

Georgia has a legitimate government interest in regulating who drives on its public roadways, the state argues. Finally, Castillo-Solis has presented no evidence that the goal of § 40-5-20 is the deportation of undocumented immigrants. The amendments to the statute have been in place for more than three years, “yet still, the Appellant has presented no evidence of any illegal stops or racial profiling,” the state argues.
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