Georgia DUI Crimes are prosecuted forcefully and severe consequences are imposed that can have a significant impact on your ability to work, attend school, and especially your finances. The DUI laws in Georgia criminalize driving under the influence of alcohol, drugs, whether illegal, prescription, or over-the-counter, and toxic vapors to the extent that it is less safe for the person to do so. Every year the legislature meets and adds additions sanctions and penalties to the DUI Laws in Georgia. The laws surrounding DUI can be difficult to navigate on your own.
O.C.G.A. §40-6-391 reads as follows
A person shall not drive or be in actual physical control of any moving vehicle while:
There are numerous facets of a DUI case and it can be difficult to navigate on your own. Some of the elements that make up a DUI are listed below.
The 30 day letter is a request for an administrative license hearing (ALS hearing). This letter is critical to saving your driver's privileges and it must be filed within thirty days of your arrest. If you do not file the letter, your driver's license will suspended.
An alco-sensor test is one of the tests that an officer may ask a person to submit to when pulled over for a suspected DUI. Alco-sensor tests are different from the mandatory state breath test and a person is not required to submit to them.
O.C.G.A. §40-5-67.1(2) sets out the parameters of an ALS hearing
The scope of the hearing shall be limited to the following issues:
(A)(i) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating O.C.G.A. §40-6-391; or
(ii) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
(B) Whether at the time of the request for the test or tests the officer informed the person of the person's implied consent rights and the consequence of submitting or refusing to submit to such test; and
(C)(i) Whether the person refused the test; or
(ii) Whether a test or tests were administered and the results indicated an alcohol concentration of .08 grams or more or, for a person under the age of 21, an alcohol concentration of .02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of .04 grams or more, and
(D) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Services or a test conducted by the Division on Forensic Services, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator's permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.
There are multiple ways an officer can test a person's BAC levels when pulled over for a suspected DUI. The officer can choose to utilize breath testing, blood testing, or urine tests. Blood testing is considered to be the most reliable of the three tests but only qualified individuals can administer a blood test.
Breath testing is another way that officers can test a person's blood alcohol concentration (BAC) in Georgia. Breath testing is often the most misunderstood test because people are not sure whether they are required to submit to the testing or not. It is critical to understand your rights so you don't agree to a voluntary test.
Child endangerment and DUI are two separate charges. Therefore, a person could be charged with DUI and multiple counts of child endangerment. Child endangerment can manifest in several ways.
You can receive a DUI for illegal drugs, over the counter (OTC), and prescription drugs. Even if you were taking the drugs according to the dosage given by the doctor, you could still be charged with a DUI. It is crucial to understand what the penalties are and how you can defend against them.
O.C.G.A. § 40-6-391(a)(1) states that a person shall not “drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.”
"Less safe" means that the driver is less safe to drive as a result of consuming alcohol before or while driving in comparison to not having ingested any drugs or alcohol.
A less safe DUI can be proven in three ways:
According to O.C.G.A §40-6-391(a)(5), A person shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is .08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.
In Georgia, it is illegal to operate a motor vehicle with a blood alcohol concentration of .08 or greater. If a person is found to have a blood alcohol concentration of .08 or higher, then the person should be found guilty of DUI per se because their BAC was over the legal limit. Therefore, impaired driving ability is not an element of driving under the influence per se. Dodds v. State, 288 Ga. App. 231, (2007). A conviction for driving under the influence (DUI) per se does not require proof that it was less safe for the defendant to drive; rather, an individual is guilty of DUI-per se where, within three hours after operating a motor vehicle, tests show that his blood alcohol concentration is 0.08 grams or more. Yeong Silk Oh v. State, 345 GA. App. 729, (2018).
It is important to understand that the BAC limit for minors and commercial vehicle drivers is significantly lower. For drivers under 21, it is .02 grams. For truck drivers, bus drivers, and others that drive with a Commercial Driver's License (CDL), the limit is .04.
Sobriety tests are often performed roadside and an officer is looking to see if they had probable cause to arrest the driver for DUI. The standard tests include the walk and turn test, one leg stand, and the horizontal nystagmus test. However, many people are familiar with other tests officers may ask, such as counting to a certain number or reciting the alphabet forwards and backwards.
Generally, a DUI is charged as a misdemeanor. But it certain situations, it will be charged as a felony. Felony DUI charges are not be taken lightly.
While a first DUI in Georgia is generally charged as a misdemeanor, it still comes with serious consequences.
O.C.G.A. §40-6-39(a) outlines what driving under the influence means in Georgia
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
The penalties for a DUI range greatly depending on if this was a first offense, second, third, etc. It is important to understand what the potential punishments will be. Because the penalties will have an effect on you, your family, your job, and your life, it is crucial to retain the very best representation.
In Georgia, habitual violation is not a crime, but is instead a status you receive after you have committed a certain amount and type of offenses. For example, if you have been convicted of three DUI offenses in a 5 year period, a fourth charge will result in you being a habitual violator if convicted.
License surrender is a consequence of certain DUI convictions. However, there are limited circumstances where you can apply for a hardship license plate. The application will need to be submitted to the Department of Driver Services.
Ignition interlock devices are breathalyzers that go in vehicles. They require that the driver give a breath sample before the car is started as well as during the drive. Georgia drivers that have been arrested for a second DUI in five years are required to have these devices installed on their vehicle.
O.C.G.A. §42-8-118 outlines three ways a person can tamper with an ignition interlock device:
Tampering with an ignition interlock device will have harsh consequences. As stated previously, IIDs have been modified over the past years to avoid someone else from starting the car for the offender. Requiring a sample while driving ensures that the same person provided the breath sample that started the car and that the driver is sober. The device will log attempts to circumvent blowing into the device to start the car and they will be forwarded to the driver's probation officer. Additionally, a failure to provide an adequate sample will also be logged and reported to the probation officer.
If charged with tampering with an IID device, the accused will be charged with a misdemeanor punishable by a $1,000, up to one year in jail, or both. Additionally, it will likely result in a probation revocation hearing where the judge forgoes the rest of probation and requires the driver to finish their sentence in jail. Another possible outcome is that the judge may extend the amount of time the IID will remain on your vehicle.
A person can be charged under is O.C.G.A. 40-6-10 which states it is illegal to drive a motor vehicle without adequate insurance on the vehicle. It does not matter whether the driver owns the car or not. The vehicle must have, at the minimum, the state required insurance on it. A person convicted under O.C.G.A. §40-6-10 will be charged with a misdemeanor. Misdemeanor convictions in Georgia come with a penalty of up to 12 months in jail, a fine between $200 and $1,000, or both. It is also a crime to make a false statement concerning insurance coverage. For example, if a driver told the officer there was insurance on the vehicle knowing there was none. This violation will also be treated as a misdemeanor.
O.C.G.A. §40-6-253 (a)(2) defines an open container as any bottle, can, or other receptacle that contains any amount of alcoholic beverage and is open or has a broken seal and the contents are partially removed. Containers that have been resealed will not constitute an open container.
Georgia's open container law reads as follows: A person shall not consume any alcoholic beverage or possess any open alcohol beverage in the passenger area of any motor vehicle which is on the roadway or shoulder of any public highway. O.C.G.A. §40-6-253(b)
Only the person possessing the alcohol will be charged with the violation. However, if there are no passengers, then only the driver will be charged. The statute outlines that if the seal has been opened and the contents have been partially removed, then that will constitute an open container. It does not explicitly state how much has to be removed, but courts have found that even if a small amount is gone, a charge will be justified.
This occurs when a person is arrested for a DUI while taking prescription drugs. Even if you are taking your prescription according to the directions, you could still be charged with a DUI.
One of the lesser known consequences of a second DUI is that the accused's license will have a red stripe along the top. This stripe stays on the license for seven years as long as there have been no more DUI convictions.
According to O.C.G.A. § 40-5-85:
Any person convicted within five years of his or her first conviction as measured in paragraph (2) of subsection (c) of Code Section 40-6-391 for a second time of the offense of driving under the influence of alcohol or drugs in violation of Code Section 40-6-391 shall, upon compliance with all other requirements for reinstatement of his or her license as provided for in this chapter, be issued a driver's license which may bear a red stripe thereon. After seven years with no additional convictions for driving under the influence of alcohol or drugs any such person shall be issued a regular driver's license without such red stripe provided that he or she is otherwise entitled to such license under the laws of this state.
A refusal to take the state administered chemical test will result in a one year suspension of your Georgia driver's license. This is not to be confused with the alco-sensor test administered on the side of the road. We can help avoid the one year license suspension even if you refused testing.
The penalties for a second DUI in Georgia are intense and life-altering. Extended jail terms, 240 hours of community service, and an 18 month license suspension are common punishments for a second DUI.
Individuals who drive under the influence and cause a serious injury to another person can be charged under O.C.G.A. § 40-6-394.
O.C.G.A. § 40-6-394 reads as follows:
Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless by reckless driving or DUI shall be guilty of the crime of serious injury by vehicle.
A person could be charged with multiple counts of serious injury by vehicle if several individuals were seriously injured in the accident. Unlike other offenses, these counts will not merge even though they all arose out of the same instance.
However, a person cannot be convicted of both DUI/reckless driving and serious injury by vehicle. This would violate double jeopardy. While they can't be convicted for those crimes together, they could still be convicted of any other underlying traffic offenses that led to the injury. These can include following too closely, failure to maintain lane, or speeding as they are lesser included offenses to serious injury by vehicle.
A third DUI comes with serious consequences. It is critical that you hire a lawyer to help assist with your case. Large fines, extended jail sentences, and a license suspension are all punishments that accompany a third DUI in Georgia.
First-degree vehicular homicide is considered a felony conviction in Georgia. It generally indicates the person was also driving under the influence or committed one of the other serious driving offenses that support the felony. All other traffic violation cases resulting in death should be prosecuted as misdemeanor vehicular homicide, or second-degree.
O.C.G.A. § 40-6-393(a) and (b) states that a person commits homicide by vehicle in the first degree when:
Without malice aforethought, a person causes the death of another by
Georgia DUI penalties can be very harsh. Some of the consequences could include you losing your license for a long period of time, paying significant fines, or spending prolonged time in jail. The DUI laws are complicated but we are up to date on all the laws and know how to properly defend your case. You do have options to avoid these heavy penalties.
There are tons of defenses available to you for your Georgia DUI case. A couple of them are:
These are just a few of the defenses your attorney will explore to see what works best for your case.
A DUI charge in Georgia is serious, however, there are many defenses that can be explored with the help of an attorney. As soon as possible in the wake of a DUI arrest, you need to contact an attorney to begin gathering evidence and keeping your driver's license from suspension or your privileges to drive in Georgia if you are an out-of-state driver with a DUI in Georgia.
If you do not seek help from an attorney, you could find yourself facing suspension of your driver's license simply by virtue of failing to meet the statute of limitations for appeal. Georgia DUI law enforcement officers must have a reason to pull you over. If you were stopped without the officer having observed a traffic violation, or you were stopped at roadblock considered unlawful in Georgia, you may have solid ground for your case to be won.