Defending DUI Drug Cases In Cobb County And In The Atlanta-Metropolitan Area
The Offense
Elements Of the Crime
Georgia Code 40-6-391(a)(6) states:
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
Impaired Driving Is NOT Required
Unlike a DUI Less Safe case, the State is not required to prove the defendant was under the influence of the drug to the extent that it made him less safe to drive. Rather, this type of DUI case is more similar to a DUI Per Se alcohol case. To convict a person under Georgia Code 40-6-391(a)(6), the State only needs to show that there was the presence of marijuana or an illegal controlled substance in the person's blood. or urine.
In other words, even if you appear perfectly sober, and even if you were driving in a perfectly safe manner, you can still be convicted of DUI Drugs if it is found in your system.
You may be asking yourself: "How can I be prosecuted for driving under the influence if I was not impaired?" That is a good question, and One that is asked constantly. The rationale behind this law is the nature of the drugs themselves. Unlike prescription medication, for example, marijuana (for the most part) and controlled substances like cocaine are illegal in the state of Georgia. Being able to prosecute a person for DUI with these drugs in his system may serve as a deterrent to others when it comes to using marijuana or other controlled substances.
But, more importantly, the science itself-specifically the lack of precise scientific measurement ability-lends itself to this law. Put another way, it is always possible to scientifically correlate the amount of drugs in someone's system to their actual impairment when it comes to driving. As such, the legislature has simply outlawed driving a motor vehicle if any of these substances are in your system.
Georgia courts have repeatedly upheld the principle that impaired driving ability is NOT a required element of the offense of driving under the influence of marijuana or a controlled substance under paragraph (a)(6). Ryals v. State, 215 Ga. App. 51 (1994).
Law Has Been Found To Be Constitutional
Georgia Code 40-6-391(a)(6) making it unlawful to drive while marijuana residue is circulating in the driver's body fluids has been found to be constitutional, since it bears a rational relationship to a legitimate state purpose, namely the protection of the public, and the law does not violate equal protection. Love v. State, 271 Ga. 398 (1999).
Potential Penalties
The potential penalties for a DUI Drug 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.
- 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.
Note that the above criminal penalties related to potential imprisonment and fines are the same as in a DUI alcohol case. The difference between the two types of cases, however, lies in the consequences regarding the suspension of your driver's license. The potential suspension periods will be much harsher if you are convicted of a DUI Drug offense rather than a DUI based off of alcohol. The differences in these potential driver's license suspension periods are listed in the "Georgia DUI License Suspensions" section.