Types of DUI under Georgia Law

There are two types of Driving Under the Influence (DUI) charges under Georgia law—Per Se violations and Less Safe violations. Per Se violations involve an unlawful Blood Alcohol Content (BAC) or the detection of impairing drugs in your system. Blood Alcohol Content is the ratio of blood to alcohol in a person’s system.

In Georgia, the level of BAC that is considered unlawful for drivers 21 and over is 0.08 percent or above. In this situation, the prosecution will not have to prove that your driving was impaired or that your driving was unsafe. Your BAC is sufficient evidence for a conviction.

If your BAC is between 0.05 and 0.08 percent, the prosecution may still try to convict you of a DUI charge. In this situation, the prosecution will have to prove that you were a “less safe” driver.

Evidence the prosecution may try to introduce to prove that you were a “less safe” driver could include officer testimony that your speech was impaired, your eyes were bloodshot, there was the scent of alcohol in the car, or that you performed subpar during field sobriety testing. This evidence will be used to convince the judge or jury that you were under the influence of drugs or alcohol to such a degree that your driving was impaired and you were a “less safe” driver.

This type of evidence is purely subjective, as there are many reasons why a person not impaired by drugs or alcohol could exhibit these traits. A good DUI attorney will recognize this weakness of the prosecution and represent his client accordingly.

If you are a driver of a commercial vehicle in Georgia, a BAC of 0.04 percent is unlawful and constitutes a per se DUI conviction.

If you are below the age of 21, a BAC of 0.02 percent is unlawful and constitutes a per se DUI conviction. This is part of Georgia’s “Zero Tolerance” approach to underage drinking; any amount of alcohol in the system of someone under the age of 21 constitutes a violation.

Traffic Stops and Probable Cause

In order for an officer to stop you and request that you submit to BAC testing or field sobriety tests, the officer must have an articulate probable cause for doing so. This is a protected right of the individual under the Fourth Amendment of the United States Constitution and the Constitution of the State of Georgia. Police officers have a duty to perform searches and seizures when they believe that a particular crime has been committed, or is in the process of being committed, but the performance of these actions must be justified by reasonable probable cause.

Probable Cause To Suspect Driver is Under the Influence

In the context of a DUI investigation, if an officer pulls over a driver for committing a traffic violation (such as failing to come to stop at a red light, swerving, or failing to signal) and smells alcohol on the driver’s breath or sees alcohol bottles inside the car, this is sufficient probable cause to believe that the driver may be impaired.

The officer may then proceed to question to driver about his or her recent alcohol consumption, request that the driver submit to field sobriety testing, and/or submit to BAC testing in the form of a breathalyzer or blood test*. However, the officer must observe behavior or circumstances in excess of the traffic violation for which the person is being pulled over. Race and gender can never be considered as factors in determining probable cause.

Probable cause may also be established by circumstantial evidence. An example of this type of evidence is if someone sees a driver commit a hit-and-run and calls the vehicle information in to the police. If the police then locate and stop that driver, they have probable cause to begin investigating even though they themselves did not witness the accident.

Another source of probable cause is information obtained over the police scanner or information received from a witness. Either of these situations is enough to give an officer reasonable probable cause if he locates the driver in question.

Search and Seizure Law in Georgia

Also under the Fourth Amendment is an individual’s right to be free from unlawful search and seizure. This right includes an individual’s right to not be subjected to a search without a warrant.

However, if in the course of being pulled over, an officer forms probable cause that a driver is under the influence of drugs or alcohol, in certain situations, probable cause may extend to a full search of the vehicle without the requirement of a warrant.

If the officer did not have reasonable probable cause to search driver or the vehicle and performed a search without the driver’s consent and without a warrant, the search is invalid under the Fourth Amendment. In this situation, any evidence that the officer may have obtained from the search should be inadmissible and excluded as evidence in court.

If you or someone you know has…

If you believe that you have experienced an illegal search and seizure, it is in your best interested to hire an experienced DUI defense attorney. Don’t let illegally obtained evidence be used against you. A good DUI defense attorney is knowledgeable about the nuances of the law and can insure that your rights are upheld in court. Contact Horlick Law Firm immediately to discuss your case.

Field Sobriety Tests

Once you have been pulled over by an officer and are suspected to be under the influence of drugs or alcohol, there are several field tests that an officer may request that you perform to determine if you are intoxicated. A few examples of standard field sobriety tests are as follows:

• Walk and turn
• One-legged stand
• Horizontal Gaze Nystagmus (HGN)
• Preliminary Breath Test

Field sobriety tests are used to determine whether the officer has probable cause to make a DUI arrest. Even if you “pass” the field sobriety tests, an officer may still request that you submit to a chemical test to determine your BAC. This test could consist of testing your breath to determine the BAC. The breath test may preliminarily conducted at the site of the stop via a PBT device.

A blood or urine test could also be requested by the officer. A blood test will provide a more accurate BAC level than the road-side breathalyzer. The urine test will indicate the presence of any narcotics in the driver’s system. Both of these tests will require that you go into the station or to a hospital with the officer for testing. Remember, also, that in Georgia, you have the right to request an additional test of your choosing at your expense.

Refusal to Submit to Field Sobriety or BAC Tests

If a driver refuses to submit to field sobriety tests, the officer may then request that he submit to a chemical BAC test if the officer believes he has sufficient probable cause to suspect that the driver is impaired. If a driver refuses to submit to a chemical test and the officer has probable cause to suspect that the driver is intoxicated, this could lead to a DUI arrest. The officer has the discretion to arrest after the driver’s refusal if the officer believes the driver to be impaired.

Breath, Blood and Urine Tests

Blood Alcohol Tests can consist of testing a person’s breath or blood for a determination of the current BAC. Breath tests can be conducted roadside via the use of an officer’s PBT machine. A urine test can be requested to determine the presence of alcohol or any narcotics in the driver’s system. This device..

Suspension of License and Administrative Hearings

If asked to take a chemical test and you refuse, or if you submit to testing and “fail,” the arresting officer will file form 1205 to begin the process to initiate the administrative suspension of your license.  Remember, this is SEPARATE from your criminal case.  You only have 10 BUSINESS DAYS after your arrest to request an administrative hearing to keep your license.  If you do not request a hearing within 10 business days, your license will be automatically suspended 31 days after the date of your arrest.

Depending on your record, and whether a prior refusal exists, this suspension may last from one to five years. And if you didn’t refuse, but you took the test and “failed,” you may be able to apply for a 30-day work driving permit. However, if you do not request a hearing within ten days and you refused chemical testing when arrested, you will be not be allowed a limited work driving permit – even if it is your first DUI offense.

In many circumstances, you may be eligible for a limited work driving permit, and if you complete your DUI Risk Reduction course and pay a reinstatement fee, to apply for early full reinstatement of your license after only 120 days.  Remember, if your license is suspended administratively because your BAC was over the legal limit, the amount time that your license was suspended will be credited against any mandatory license suspension periods if you plead guilty or are convicted of DUI.  You cannot get this credit, however, if you refused to submit to chemical testing and are subsequently found guilty of DUI in criminal court.

THIS ARTICLE IS NOT INTENDED TO BE COMPREHENSIVE OR PROVIDE LEGAL ADVICE.

GEORGIA DUI AND TRAFFIC LAW IS COMPLICATED AND ALWAYS CHANGING.

PLEASE CONTACT HORLICK LAW FIRM IMMEDIATELY TO DISCUSS YOUR SPECIFIC CASE.

Horlick Law Firm practice areas include:

• All Traffic Offenses
• All Drug Charges
• Theft/Shoplifting
• Identity Theft
• Fraud/Forgery
• Burglary
• Robbery
• Assault & Battery
• Sex Offenses
• Child Molestation
• Child Cruelty
• Domestic Violence
• Gun offenses
• Murder
• Juvenile Offenses
• Probation/Parole issues

Contact Horlick Law Firm immediately by clicking the link above, by phone (404-487-8473), or email us at info@horlicklawfirm.com for a free case evaluation and consultation if you or someone you love has been charged with a crime in the state of Georgia.  You are not in this alone. We are here to help.