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.
While every state has some form of implied consent notice, Georgia’s Implied Consent notice is unique and is frequently the subject of litigation with the most recent change coming in 2019. The implied consent notice is forcing you to make a choice by either (1) refusing further testing and facing a license suspension, or (2) consenting to further blood, breath, or urine testing which may still result in a license suspension if the result is .08 grams or more. This would be a great time to call an attorney for assistance with this difficult decision, but the courts have consistently ruled that the right to attorney has not attached at this point. In other words, Implied Consent comes before any Miranda warnings (right to remain silent, have a lawyer etc.). The implied consent notice should be read as soon as possible after the arrest is made. So, the most important advisement of rights that you receive comes at a time where you are likely overcome with emotions and highly unlikely to understand what the officer is requesting. Even worse, you might not even know it is a request. At those moments, when you have just been placed in handcuffs, you might not realize that you have any choice at all. Yet, that is the moment that courts have consistently said is the best time to read the notice. To be fair, the longer you are in custody, the less likely you are to feel that you have any choice. But what if you were advised of your rights before you ever stepped out of your vehicle? Nothing is stopping officers from making it clear from the outset of the investigation that you can refuse the requested testing (both the pre-arrest testing and post-arrest testing). For now though, that is not the law in Georgia.
No, alcohol is just one of many impairing substances that can result in a DUI arrest. Prescription drugs, marijuana, and illegal drugs can also result in a DUI arrest. It is important to note that there are two types of DUIs. Initially, every arrest begins as “less safe” DUI. Meaning that the officer is arresting you for being under the influence of some impairing substance to the extent that you are “less safe” to drive than you otherwise would have been had you not ingested the impairing substance. At the moment of arrest, the officer does not have a chemical test to use against you to establish exactly what is impairing you or the amount of that substance in your system. However, if you submit to the chemical test, then you are giving the prosecution additional evidence to use against you in a separate DUI “per se” charge. Therefore, it is always recommended that you refuse the chemical test unless you are absolutely certain the results will exonerate you.
In a “per se” case, the prosecution will use the results of the chemical test to prove you were either over the legal limit of .08 grams of alcohol or had any amount of a controlled substance in your system. For marijuana and prescription drug cases, the standard is a bit different. There is no explicit limit and the mere presence of marijuana or prescription drugs is not fatal to your case. Instead, the levels of marijuana and/or prescriptions drugs will be used as evidence to support the presumption that you were less safe to drive. Either way, the point I am trying to make is that the chemical test is going to be used against you in some way in almost every single case.
Take a DUI alcohol case for example. If you consent to the blood, breath, or urine testing, then you will be charged with a “per se” violation if you are over the legal limit of 0.08. If you refuse the testing, then you will only have the “less safe” charge because the prosecution will not have a number to say you were over or under 0.08.
There are five different categories of less safe DUI. There’s alcohol, prescription drugs, marijuana, inhalants, and a combination of those impairing substances.
For prescription drugs, the fact that you have a valid prescription will not exonerate you. Instead, the test is whether that medication affected your ability to drive safely. Commonly, medications that impair your ability to drive will have warnings on the label.
In a DUI marijuana prosecution, the state has to prove that you were impaired by the marijuana. There is not a per se limit like in other states that have legalized marijuana. So in Georgia, there is no number that can establish you were definitively impaired. The state toxicologist will explain that higher concentrations of THC metabolites is indicative of more significant impairment, but your individual tolerance will also play a role in whether you were actually impaired. Marijuana has to be tested by blood or urine because it is not going to show up in a breath test. The blood results from the GBI will breakdown the concentration of THC and its derivatives in the blood sample. Still, the ultimate test will be how you appear on video and how good or bad your driving was. So it still all circles back to whether the marijuana in your system caused you to be a less safe driver.
A DUI inhalant/glue prosecution is extremely rare because those types of substances would be out of your system fairly quickly and their effects are very brief. It would take an accident with an open aerosol can that was cold to the touch showing that it had recently been used to really prove that type of case.
So to summarize, a less safe charge can be based on alcohol, drugs (illegal or prescription), marijuana, inhalants, and any combination of those impairing substances. Those are the five less safe categories and then you just have the per se category for alcohol if you are over the legal limit. So in total, there are six different ways you could be charged with DUI in Georgia.
For more information on DUI Laws In Georgia, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (470) 728-1725 today.