You can be charged with driving under the influence of any intoxicant, but DUI alcohol prosecutions are still the most common form of DUI. DUI alcohol prosecutions take the form of a “less safe” violation or a “per se” violation. Every case will have a less safe charge because that is the basis of the officer’s initial arrest. You were arrested because the officer believed you were under the influence of alcohol to the extent that you were a less safe driver than you otherwise would have been. Once arrested, the officer will read the Georgia Implied Consent Notice and request a chemical test of your blood, breath or urine. The results of those tests, if you comply, will form the basis for the per se violation if you are over the legal limit of .08.
In a DUI alcohol less safe prosecution, the state is attempting to prove you were under the influence of alcohol to the extent you were a less safe driver. This charge is not a lesser form of DUI and is actually the most common DUI charge since the officer is always basing an arrest off the less safe standard. If, after the arrest, you submit to a chemical test, then you may be charged with an additional DUI per se violation. However, you will never have a per se violation without an accompanying less safe violation.
The less safe charge is based on your ability to drive a vehicle safely, any physical manifestations of impairment, and your performance on field sobriety evaluations. Ultimately, the jury decides whether you were less safe to drive than you otherwise would have been had you not consumed any alcohol.
Georgia is not a zero-tolerance state. You can consume alcohol and drive. You just cannot consume alcohol to the extent of impairment and drive. If you have a higher tolerance, you can consume more alcohol than someone with a lower tolerance. Similarly, other factors affect how significantly the alcohol affects you such as what you ate, how quickly you consumed the alcohol, and what you had done that day. For instance, you will have a better tolerance if you are fully rested, eat a full meal, and consume the alcohol over a longer period of time. If you are sleep deprived and quickly consume that same amount of alcohol on an empty stomach, the effects will be intensified. Therefore, it is extremely important to nail down exactly what happened the day of your arrest using any documentation and witnesses available.
In a DUI alcohol per se prosecution, the state must prove your BAC is 0.08 or more within three hours of operating a motor vehicle. Your BAC can only be established by a chemical test of your blood, breath or urine. These tests are conducted after you are arrested in accordance with Georgia’s Implied Consent law, or in some circumstances, pursuant to a search warrant. If you give a breath sample on the side of the road, those results are not admissible due to the unreliability of those portable breath tests (PBTs).
If you refuse testing, then the only way the officer can obtain a chemical test is through a search warrant for a sample of your blood. A blood test requires a blood draw by a licensed phlebotomist. After the blood draw, the samples are sent to the Georgia Bureau of Investigations (GBI) for testing. The GBI has specific test tubes which must be used for the blood draw, separate from traditional blood vials used at hospitals. A breath test would be conducted at the jail or police precinct. The officer must follow several procedures and should conduct two breath tests to ensure accuracy. A urine sample is rarely requested. If a urine sample is collected, the amount of alcohol in the urine will be converted to an estimated blood alcohol content.
A BAC of 0.08 or higher is considered a per se violation. The defense to this charge would have to be that the test result is inaccurate, or that the result was obtained illegally which would result in suppression of that test result. There are several foundational requirements that must be met by the state to introduce the test results. If the state can meet its burden for introducing the test result, then the defense must present sufficient evidence to establish reasonable doubt as to the reliability and accuracy of the test result.
All 50 states have set the legal limit for blood alcohol content at 0.08 or more and that’s determined by blood, breath or urine testing. It is sometimes referred to as DWI (Driving While under the Influence) but it is DUI (Driving Under the Influence) in Georgia. It is a national standard, so the methods of detecting impairment should be the same in every state. However, every state does not use the same breath testing machine. Georgia’s breath testing machine, known as the Intoxilyzer 9000, is the only approved breath testing machine used in this state. The Intoxilyzer 9000 is one of a couple breath testing machines Georgia considered before contracting with the Intoxilyzer 9000’s manufacturer to be the official breath testing machine in Georgia. During this vetting process, state officials considered the pros and cons of 3 different breath testing machines. These studies can be very useful to show the deficiencies in the Intoxilyzer 9000. The state’s own data says that there are known issues with this particular machine, yet it was chosen as the best option for a number of reasons like costs, maintenance, efficiency etc.
For more information on DUI Alcohol Defense In Georgia, call or text (470) 728-1725 to speak with attorney Carl Chapman.
Click here to go back to the main page.