GA DUI WINS

DUI – WHAT IS IT? WHAT DO “LESS SAFE” AND “PER SE” MEAN?

O.C.G.A. § 40-6-391.  Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for second time; endangering a child

   (a) A person shall not drive or be in actual physical control of any moving vehicle while:

   (1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

   (2) Under the influence of any drug to the extent that it is less safe for the person to drive;

   (3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

   (4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

   (5) The person's alcohol concentration is 0.08 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; or

   (6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.

Alcohol alone is not the only substance that may impair your ability to drive; the majority of DUI arrests, however, result from the belief of an officer that you may have had “too much to drink”. The truth is - while it is NOT against the law to have a drink and then drive - any time a police officer smells alcohol on your breath, the odds are high you will be asked to perform roadside field sobriety tests, submit to a chemical test of your breath or blood, and possibly even be arrested for DUI. What, then, does DUI really mean?

Georgia law makes it a crime to “drive or be in actual physical control of any moving vehicle” if:

ANY alcohol, drugs (including prescription medication), or glues or aerosols in your system affect your driving in any way, making you a “less safe” driver;
Any COMBINATION of those same compounds that makes you a “less safe” driver; or
The alcohol concentration in your body is 0.08 grams or more within three hours of operating a vehicle.

Arrests that fall in the “less safe” category (numbers 1 and 2) are usually arrests where the officer suspects alcohol but cannot verify the amount (either where a motorist will refuse to submit to a blood or breath test or the officer for whatever reason cannot or will not perform the test), or arrests where drugs are suspected to have diminished the driver’s abilities, making him (or her) “less safe” to drive than if he had not had any alcohol or drugs in his system. “Per se” arrests, on the other hand - arrests where a chemical test for alcohol alleges a concentration of 0.08 grams of alcohol or higher - occur when a driver submits to a breath, blood, or urine test and the results indicate an alcohol concentration above that “per se” limit.

Based on the individual facts of a case, if you are arrested for DUI, you may find yourself charged with more than one DUI offense, depending on what the officer believes affected your ability to drive a car. Most commonly, if you submit to a blood or breath test that indicates you are ‘over the limit’ of 0.08 grams, the officer who arrests you or the prosecuting attorney who handles your case may also charge you with one of the “less safe” charges as well. This is a common strategy when officers and prosecutors want to provide a safety net for their case if for some reason the breath test is thrown out by the judge, or in other cases, where the driver may blow over the legal limit but not look or sound drunk on a video or in the officer’s report. A safety net for a prosecutor means an additional DUI charge for you.

PER SE DUI – WHAT IS MY LIMIT?

If .08 grams is the rule, there are exceptions to it, and they begin with underage drivers. If you are under the age of 21, your blood alcohol concentration may be no more than .02 grams within three hours of operating a vehicle, which is a significant departure from the rules for drivers older than 21. There are special rules for sentencing upon conviction and for your driver’s license as well, which is why it’s so important to consult with an experienced DUI attorney before making any decision about your case. If you have a commercial driver’s license and were driving a commercial vehicle when you were arrested, your blood alcohol concentration may be no more than .04 grams of alcohol within three hours of driving. For CDL drivers a DUI could be the end of a career: call us for a free consultation before putting your future in jeopardy.

“LESS SAFE” DUI – WHAT IF THERE IS NO BREATH TEST?

Make no mistake about it: a breath or blood test is the best evidence any prosecutor can have against you. It shows a judge or a jury what the prosecutor thinks your blood alcohol concentration was at the time you were pulled over. But don’t believe for a second the absence of a breath or blood test means your can’t be convicted. Your prosecutor may attempt to prove you were a “less safe” driver – that the alcohol in your system, whatever the amount, affected your ability to drive, making you less safe to do so than you would be without drinking. Without a breath or blood test, the prosecutor will rely on the officer’s testimony (aided by a police report and possibly even a video recording of your arrest) about your poor driving, your physical characteristics (slurred speech, bloodshot eyes, the smell of alcohol on your breath), and your performance on voluntary roadside sobriety tests – if you took them – to show your mental and physical abilities were affected by drinking. Without an experienced DUI attorney to defend you, that testimony could be enough to convince a judge or jury you are guilty, even without a test of your blood or breath.

DUI – ENDANGERING A CHILD

Having passengers in your car – particularly children – can complicate an already difficult DUI situation. Under Georgia law, a person who is arrested for DUI with a child under 14 years of age in the vehicle can be charged with the separate offense of “Endangering a Child", O.C.G.A. § 40-6-391(l). If convicted of both a standard DUI and DUI Endangering a Child, a court can sentence you for both DUIs, treating each as a separate crime. If there is more than one child in the car, you can be charged with a separate count of Endangering a Child for each child under the age of 14 in your car at the time of your arrest.

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