Summary of Georgia DUI Law
COMMON ACRONOYM (S) USED TO DESCRIBE “DRUNK DRIVING”: DUI, Driving With An Unlawful Alcohol Concentration (“DUI Per Se”), “DUI Less Safe”
PROHIBITED VEHICULAR ACTIVITY: driving or being in actual physical control of a moving vehicle
COVERED VEHICLES OR DEVICES:
COVERED LOCATIONS: anywhere in Georgia – no published case in the Federal courts addressing whether our state DUI law will apply to those areas within the exclusive control and jurisdiction of the federal government
DUI Offenses: Within O.C.G.A. 40-6-391
(a)(1) Driving while under the influence of alcohol (DUI Less Safe – Alcohol) – this is an impaired driving subsection;
(a)(2) Driving while under the influence of any drug (prescription or non-prescription) – this is an impaired driving subsection; NOTE: DUI marijuana charges must be alleged under this subsection;
(a)(3) Driving while under the influence of toxic vapors (glue) – this is an impaired driving subsection;
(a)(4) Driving while under the influence of any two or more of the above – this is an impaired driving subsection;
(a)(5) Driving while under the influence of alcohol, with alcohol concentration 0.08 grams or more at any time within three hours after such driving ended – this is a per se offense;
(a)(6) Driving while under there is any amount of a controlled substance present in the person’s blood, urine or both, including the metabolites and derivatives and regardless of whether there is any alcohol in the breath or blood – this a per se offense; NOTE: although marijuana remains in the statute, DUI marijuana cannot be prosecuted as a per se offense.
(i) Driving, etc., a commercial vehicle, while under the influence of alcohol, with alcohol concentration 0.04 grams or higher;
(k) under-21 drivers, Driving, etc., while under the influence of alcohol, with alcohol concentration 0.02 grams or higher
DEGREE OF IMPAIRMENT REQUIRED:
For (a)(1) through (a)(4) and (a)(6)-marijuana: to the extent that it is less safe for the person to drive, or to the extent that the driver is rendered incapable of driving safely
For (a)(5), (a)(6) all other drugs, (i), (k) impairment is not required
PENALTIES FOR IMPAIRED DRIVING OFFENSES: 10-year “look back”
First conviction: $300 – 1,000 fine, 40 hours community service, 12 months probation less any actual days of incarceration, 10 days jail all of which may be suspended, etc., except 24 hours if the test is above 0.08; 1-year license suspension with Georgia-only work permit for first 120 days and full reinstatement after work permit if no violations. DUI School. No work permit if convicted of DUI-drugs. O.C.G.A. � 40-6-391 (c)(1)(A)-(E)
Second conviction: $600 – 1,000 fine, 30 days of community service, 12 months probation less any actual days of incarceration, 90 days jail all of which may be suspended, etc., except 72 hours; 3-year license suspension with one-year “hard” suspension followed by 6-month Georgia-only work permit with proof of ignition interlock and full reinstatement after work permit if no violations. DUI School followed by “clinical evaluation” for additional alcohol counseling; $25 publication fee for newspaper ad in the county of driver’s residence. O.C.G.A. � 40-6-391 (c)(2)(A)-(F) and (j)(1) and (2).
Third conviction: $1,000 – 5,000 fine, 30 days of community service, 12 months probation less any actual days of incarceration, 120 days jail all of which may be suspended, etc., except 15 days; 5-year license revocation with two-year “hard” suspension followed by three-year Georgia-only work permit with proof of ignition interlock. Full reinstatement after total of five years if no violations during that five-year period. DUI School followed by “clinical evaluation” for additional alcohol counseling; $25 publication fee for newspaper ad in the county of driver’s residence. O.C.G.A. � 40-6-391 (c)(3)(A)-(F) and (j)(1) and (2).
The Department of Driver Services, not the courts, controls license suspensions.
STATUTORY DRUNK DRIVING PRESUMPTIONS: O.C.G.A. � 40-6-392
(b)(1) 0.05 and under may infer the person is not under the influence
(b)(2) 0.05 – 0.079 no inference that the person is under the influence but consider with other evidence
(c)(1) 0.08 or more within 3 hours of driving …. if driver is driving regular vehicle
(c)(2) 0.04 or more within 3 hours of driving …. if driver is driving commercial vehicle
(c)(3) 0.02 within 3 hours of driving …. if driver is under 21
IMPLIED CONSENT LAWS:
Tests permitted: blood, breath, urine or other bodily substance, one or more samples as designated by arresting officer.
Type of advisement required: “substantial compliance” of reading printed card carried by all officers. The exact wording is O.C.G.A. 40-5-67.1. There are three warnings: under 21 (b)(1), commercial drivers (b)(3) and all other drivers (b)(2).
Penalties for refusal: “hard” administrative suspension, jury is instructed that it may infer that the test would have shown positive for the prohibited substance.
Admissibility of refusal: admissible.
Administrative Per Se law: Immediate license seizure, 10 business days to request hearing, 30-day, 3-year, 5-year suspension for first, second, third offenses within 5 years. As long as driver takes test, administrative suspension counts towards conviction suspension. All may have work permits same as Penalties” section above.
CHEMICAL TEST LAWS:
BREATH: test slip is admissible as long as test is performed according to Georgia Bureau of Investigation, Division of Forensic Sciences-approved methods. Georgia uses the CMI Intoxilyzer 5000 EN. An “adequate sample” means one sufficient to cause a readout on the machine. Two breath tests are required; must be within 0.020 of one another. Tests must be run within three hours of “driving.” O.C.G.A. 40-6-391(a)(1)(A)
BLOOD-DRAWING STATUTE: Physician, registered nurse, laboratory technician, EMT or other qualified person may draw blood. O.C.G.A. 40-6-392(a)(2)
INDEPENDENT TEST STATUTE: After first submitting to the state’s test, the driver is entitled to an independent test at his own expense and from qualified personnel of driver’s choosing. The person tested may have a physician or a qualified technician, chemist, RN or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of the state’s test. O.C.G.A. 40-6-392(a)(3)
PLEA BARGAINING STATUTE: no statute. Alternatives available for non-DUI disposition include plea to the moving violation (weaving) with “DUI sentence” or plea to Reckless Driving, a 4-point violation. Under 21 drivers are suspended if case is resolved as Reckless Driving WHILE THE DRIVER IS UNDER 21 YEARS OF AGE; drivers over the age of 21 at the time of conviction do not automatically lose license for reckless driving. In Georgia, there is no “lesser-included” offense to DUI.