Georgia Code 40-6-391(a)(5) states that a person shall not drive or be in actual physical control of any moving vehicle while 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.

While there is no such thing as a “legal limit” in Georgia, 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 your guilt beyond a reasonable doubt. 

The State can still prosecute DUI cases without a chemical test. These cases are commonly referred to as “less safe” DUI cases. In other words, the prosecutor is trying to prove that a driver was impaired to an extent that it made him less safe to drive.

Georgia Code 40-6-391(a)(1) provides that a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.

Simply put, “less safe” means that the person was under the influence of alcohol to the extent that it was less safe for the person to operate a motor vehicle than if he were not so affected. In other words, the driver has been so affected by the intoxicant that it has adversely affected his operation of the motor vehicle. This is the level of proof that is required for a conviction. It is not enough that the evidence merely shows the defendant drank some alcoholic beverage and was affected to any extent whatsoever.

It is important to note that the State can prosecute people for DUI-Less Safe under theories other than alcohol intoxication. According to Georgia Code 40-6-391(a)(2) through (a)(4), in addition to alcohol, a person can be prosecuted for driving or being in actual physical control of a moving vehicle for being:

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

• 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; and

• 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.

Georgia Code 40-6-391(a)(6) states that a person shall not drive or be in actual physical control of any moving vehicle while 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. 

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. Instead, 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.

It is critical to note that even legally prescribed drugs can result in DUI charges if they impair your ability to drive safely.

When arrested for DUI, Georgia’s Implied Consent Law requires you to submit to chemical testing (breath, blood, or urine). 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 specified period and is a separate process, independent of the criminal DUI case. If a driver has been arrested and read the Implied Consent Notice, the officer can take the driver’s license in the following scenarios:

• 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).

At the time the officer takes the license, he should issue and serve upon the person a DDS 1205 notice. This provides the person with notice of the impending suspension of their driver's license and their rights to contest the suspension. It will also 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.  

You have just 30 days to request an Administrative License Suspension (ALS) hearing to contest your suspension.

The issues that will be addressed at the ALS hearing include the following:

• Whether the law enforcement operator had reasonable grounds to believe the defendant was operating 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 Georgia Code 40-6-391;

• 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; 

• 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.

While breath tests are central to many DUI prosecutions, they are not foolproof. Test results can be challenged due to:

• Uncalibrated or malfunctioning devices

• Improper procedures or untrained operators

• Medical conditions, diet, or medications

• Violations of your constitutional rights

Our firm routinely files motions to suppress faulty test results and challenges the admissibility of tests in court.