Defending DUI Per Se Cases In Cobb County And In The Atlanta-Metropolitan Area
The Offense
Elements Of the Crime
Even if the State does not have any chemical tests indicating whether a person had any alcohol or drugs present in his system, they can still prosecute that individual under the DUI-Less Safe statute. Georgia Code 40-6-391(a)(5) states:
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
(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.
Is A BAC Of 0.08 The Legal Limit In Georgia?
People are surprised to learn that there is no such thing as a "legal limit" in Georgia, technically speaking. In Georgia, there exists a law that is known as "DUI Per Se." This means that if a driver has a blood or breath alcohol content (BAC) of 0.08 grams or more of alcohol in his system, then there is a presumption of impairment. This presumption does not mean you are guilty. This type of case, just like all criminal cases, requires the State to prove you guilty beyond a reasonable doubt. And in any subsequent trial, the State would have to prove that your BAC was 0.08 or more. But if they can, the jury can accept the presumption that you were in fact legally impaired.
What If The BAC Was Below 0.08?
This is another common question. As explained more fully in a separate section, another way the State can prosecute a DUI case is known as "DUI Less Safe." This type of case may occur when either the driver refuses chemical testing or the test resulted in a BAC below 0.08, if the prosecuting attorney believes that the driver was impaired to an extent that it made him less safe to drive. In these types of cases, there are additional legal presumptions a jury may accept, depending on the age of the driver or the type of vehicle that was driven. These presumptions are:
- A BAC of 0.05 grams or less permits a judge or jury to infer that you were not under the influence of alcohol. However, the State can rebut this inference by providing other evidence to the jury;
- A BAC of more than 0.05 grams but less than 0.08 grams does not create an inference, but the jury may consider this fact along with other evidence;
- If the driver was under 21 years of age, then a BAC level of 0.02 grams or more will give rise to a per se DUI pursuant to Georgia Code 40-6-391(k)(1); and
- If the accused was driving a commercial motor vehicle, then a BAC level of 0.04 or more will give rise to a per se DUI pursuant to Georgia Code 40-6-391(i).
Why Should I Hire An Attorney If My BAC Was 0.08 Or Above?
Simply put, because while a jury may accept an inference that you were legally impaired, the State is still required to prove your guilt beyond a reasonable doubt. In other words, you-the defendant-enjoy a presumption of innocence.
There are many ways to defend this type of case. For one, the officer may have lacked the required probable cause for the arrest, which would be a violation of your 4th Amendment right. Or, you gave statements without the officer first informing you of your right to remain silent, which would be a violation of your 5th Amendment right.
In addition, there may be legal problems with the test results themselves. We as human beings make mistakes. So do machines. There are many protocols that need to be precisely followed before any test results can be admitted in court. This is true when both breath and blood is being chemically tested. And even if all of those protocols are followed, the results may still be wrong. An experienced DUI attorney is trained to spot all of these issues and successfully argue them to either the judge or the jury.
Potential Penalties
The potential penalties for a DUI Per Se offense are as follows:
- A First Conviction Within 10 Years Is A Misdemeanor: it is punishable by a fine of not less than $300.00 and not more than $1,000.00, and a period of imprisonment of not fewer than ten days nor more than 12 months; however, this period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that the defendant must serve a minimum of 24 hours in jail.
- A 2nd Conviction Within 10 Years Is A Misdemeanor: it is punishable by a fine of not less than $600.00 and not more than $1,000.00, and a period of imprisonment of not fewer than 90 days and not more than 12 months; however, the judge shall probate at least a portion of such term of imprisonment, provided, however, that the offender shall be required to serve not fewer than 72 hours of actual incarceration.
- A 3rd Conviction Within 10 Years Is A High And Aggravated Misdemeanor: it is punishable by a fine of not less than $1,000.00 and not more than $5,000.00, and a mandatory period of imprisonment of not fewer than 120 days and not more than 12 months; however, the judge shall probate at least a portion of such term of imprisonment, provided, however, that the offender shall be required to serve not fewer than 15 days of actual incarceration.
- A 4th Conviction Within 10 Years Is A Felony: it is punishable by a fine of not less than $1,000.00 and not more than $5,000.00, and a period of imprisonment of not less than one year and not more than five years; however, the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph.