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DUI Defense

Defending DUIs in Cobb County And In The Atlanta-Metropolitan Area

The Different Ways That A DUI Can Be Charged

The crime of DUI can be charged in a variety of different ways in Georgia, depending on the particular circumstances of the case.  A DUI can be charged if the driver is:

  • under the influence of alcohol
  • under the influence of drugs
  • under the influence of glue, aerosol or other toxic vapor;
  • under the combined influence of the above;
  • an alcohol concentration of 0.08 grams or more; or
  • has any amount of marijuana or a controlled substance in his blood or urine.

For the sake of reference, Georgia Code 40-6-391(a) lists these different ways DUI can be charged.  The law states: 

(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 Georgia Code 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. 
 
What If I Have A prescription For the Drugs Found In My System?  Can I Still Be Arrested For DUI?

Yes.  The focus will be on if the drugs (or alcohol) affected the person to an extent that it made them incapable of driving safely.  Georgia Code 40-6-391(b) states:

The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.

What Does "Under The Influence" Mean?

Courts in Georgia have defined the term "under the influence" to mean:

"Under the influence” means more than having consumed the smallest amount of alcohol possible to imagine. The operator of a motor vehicle must be under the influence of an intoxicant to the extent that it is less safe for the operator to operate a motor vehicle than if the operator were not so affected." Anderson v. State, 226 Ga. 35 (1970).

Implied Consent To Chemical Testing

Under Georgia law, if a driver is arrested for DUI, law enforcement will read a question asking the driver if he will submit to chemical testing of his breath, blood or urine.  Georgia Code 40-5-55 provides that:

  • any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Georgia Code 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for DUI;
  • the test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of the DUI laws; and
  • subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.

At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice.  That notice appears in Georgia Code 40-5-67.1(b) and states:

Implied consent notice for suspects under age 21:

“The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)?”

Implied consent notice for suspects age 21 or over:

“The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to blood or urine testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the requested state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which test)?”

Administrative License Suspension

As if the criminal charge for DUI were not enough, the state of Georgia overlays that with the administrative license suspension (ALS) process.  This process can result in the suspension of your driver's license for a period of time and is a separate process independent from the criminal DUI case.

Scenarios That Can Cause an Administrative License Suspension

If a driver has been arrested and read the Implied Consent Notice as shown above, the law enforcement officer can take a driver's license in the following cases:

  •   If the person blew over 0.08 by a person 21 years of age or older operating a non-commercial vehicle;
  •   If the person blew over 0.02 by a person under 21 years of age;
  •   If the person blew over a 0.04 while operating a commercial motor vehicle;
  •   If a subsequent blood/urine test result shows a blood alcohol (BAC) level above the legal limit for the case or the presence of illegal drugs; or
  •   If the person  refuses the State test after being read the proper Implied Consent Warning (ICW)
The DDS 1205 Notice

At the time the officer takes the license, he should issue and serve upon the person a DDS 1205 notice.  This gives the person notice of the impending suspension of the driver's license and their rights to contest the suspension.  It also will serve as a temporary driving permit.  This temporary permit will only remain active for 45 days.  If you do nothing, your license will be suspended.  

Do NOT wait and do nothing.  An experienced DUI attorney can file the necessary paperwork and request an Administrative License Suspension (ALS) hearing.

The 30-Day Rule

You only have 30 days in which to request an ALS hearing.   Once you formally request this hearing, the DDS 1205 form you were previously given will continue to serve as your temporary driving permit until the ALS hearing is disposed of.  This hearing is an opportunity to contest the suspension and gather evidence about the criminal case.

The ALS Hearing Procedures
Issues which need to be resolved at the ALS hearing include the following:
  • Whether the law enforcement operator had reasonable grounds to believe the defendant was operating in 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; and
  • Whether at the time of the request for test(s), the officer informed the defendant of his implied consent rights and the consequences of submitting or refusing to submit to said tests; and
  • Whether the defendant refused the test; or whether the tests were administered properly and the results indicated a B.A.C. of 0.08 grams or more; and,
  • Whether the 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 Sciences or a test conducted by the Division of Forensic Services.
Potential Penalties

The first and second conviction for a DUI offense within a ten-year period of time is a misdemeanor offense.  A third conviction within a ten-year period of time is a high and aggravated misdemeanor.  A fourth or subsequent DUI conviction within a ten-year period of time is a felony offense.

First Conviction (Misdemeanor)

For a first conviction of DUI within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, Georgia Code 40-6-391(c)(1) states that the punishment shall be as follows:

(A) A fine of not less than $300.00 and not more than $1,000.00; 
(B) A period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender's alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;
(C) Not fewer than 40 hours of community service; 
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; 
(E) A clinical evaluation as defined in Georgia Code 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Georgia Code 40-5-1; provided, however, that in the court's discretion such evaluation may be waived; and
(F) If the person is sentenced to a period of imprisonment for fewer than 12 months, a period of probation of 12 months less any days during which the person is actually incarcerated.
 

Second Conviction (Misdemeanor)

For a second conviction of DUI within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, Georgia Code 40-6-391(c)(2) states that the punishment shall be as follows:

(A) A fine of not less than $600.00 and not more than $1,000.00; 
(B) A period of imprisonment of not fewer than 90 days and not more than 12 months. 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;
(C) Not fewer than 30 days of community service;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; 
(E) A clinical evaluation as defined in Georgia Code 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Georgia Code 40-5-1; and
(F) A period of probation of 12 months less any days during which the person is actually incarcerated.
 

Third Conviction (High And Aggravated Misdemeanor)

For a third conviction of DUI within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, Georgia Code 40-6-391(c)(3) states that the punishment shall be as follows:

(A) A fine of not less than $1,000.00 and not more than $5,000.00; 
(B) A mandatory period of imprisonment of not fewer than 120 days and not more than 12 months. 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;
(C) Not fewer than 30 days of community service;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; 
(E) A clinical evaluation as defined in Georgia Code 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Georgia Code; and
(F) A period of probation of 12 months less any days during which the person is actually incarcerated.
 
Fourth Or Subsequent Conviction (Felony)
 

For the fourth or subsequent conviction of DUI within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, Georgia Code 40-6-391(c)(4) states that the punishment shall be as follows:

(A) A fine of not less than $1,000.00 and not more than $5,000.00; 
(B) A period of imprisonment of not less than one year and not more than five years; provided, however, that the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph;
(C) Not fewer than 60 days of community service; provided, however, that if a defendant is sentenced to serve three years of actual imprisonment, the judge may suspend the community service;
(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; 
(E) A clinical evaluation as defined in Georgia Code 40-5-1and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Georgia Code 40-5-1; and
(F) A period of probation of five years less any days during which the person is actually imprisoned;
 

Addison Waid has years of experience both prosecuting and defending DUI cases. 

Call The Law Office of Addison C. Waid IV, LLC today at 770-727-1088 or contact us online to see how he can help you defend this type of criminal case.

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The Law Office of Addison C. Waid IV is committed to answering all your questions in your time of need. Addison Waid concentrates his practice in Cobb County, Fulton County, and all over the Atlanta-metropolitan area.

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