There are six ways you can be charged with DUI in Georgia: 1) alcohol – less safe; 2) drugs – less safe; 3) vapors – less safe; 4) combination of substances – less safe; 5) alcohol – per se; and 6) drugs – per se. Oftentimes, you will be charged with multiple violations of DUI from one incident, but, even if convicted, you will only be sentenced for one DUI. The various categories just provide alternative ways for the prosecutor to prove your guilt.

1) Driving Under The Influence Of Alcohol To The Extent You Are A Less Safe Driver.

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 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.

2) Driving Under The Influence Of Drugs To The Extent You Are A Less Safe Driver.

In a DUI drugs less safe prosecution, the state is attempting to prove you were under the influence of drugs to the extent you were a less safe driver. This is a broad category since the drugs may be illegal, prescription, or marijuana which is legal in limited circumstances in Georgia. However, the same less safe standard is used no matter what drug is alleged to have impaired you. For prescription medications, the fact that you have a valid prescription is not a defense. We must argue that you took the medication as prescribed, and that there was no warning about consuming the medication and driving. Detecting drug impairment is more difficult than alcohol impairment. Officers are required to attend additional training, and few are qualified to detect drug impairment due to the variety of drugs that exist and the different ways in which they may exhibit impairment.

3) Driving Under The Influence Of Glue, Aerosol, Or Other Toxic Vapor To The Extent You Are A Less Safe Driver.

In a DUI vapors less safe prosecution, the state is attempting to prove you were under the influence of some toxic vapor to the extent you were a less safe driver. This is an uncommon charge. If you were under the influence of one of these substances, the effects would be highly impairing in the short term but would quickly dissipate. I have only seen this charged after a traffic accident in which a cold aerosol can was found in the floorboard of the suspect’s vehicle, or when the suspect made admissions during questioning by the officer. The same less safe standard applies to a DUI vapors case as any other variation of DUI. In a DUI vapors case, there would likely be terrible driving, but little signs of impairment through physical manifestations or field sobriety testing since the effects would have dissipated.

4) Driving Under The Influence Of A Combination Of Substances To The Extent You Are A Less Safe Driver.

In a DUI combo less safe prosecution, the state is attempting to prove you were under the influence of a combination of intoxicating substances. This is a common charge, and the same less safe standard is applied as discussed in other variations of DUI. While drugs have a variety of effects and impair people in different ways, those effects are even more varied when combined with other substances. For instance, alcohol is a depressant with specific manifestations of impairment, and Adderall is a prescription stimulant with specific manifestations of impairment. When combined, the depressant and stimulant do not cancel each other out. Instead, they enhance the intoxicating effect of the other while also exhibiting a variety of manifestations that are inconsistent with either substance. Therefore, the officer might say that they saw several signs of impairment that can only be attributed to some type of interaction between multiple impairing substances. The state does not have to prove how each substance impaired you or even what specific substances you ingested. If you have a case where there is evidence of a particular drug you ingested, you may need a toxicologist to testify about the interplay between those specific drugs and why they would manifest themselves in a way that is contrary to what the officer is alleging. Ultimately, if you look good on video and did not admit to ingesting a cocktail of drugs before driving, then the jury will likely ignore the complexities of the drug interactions and just focus on whether you look impaired.

5) Driving With A Blood Alcohol Concentration Of 0.08 Or Higher.

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. 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). 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 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.

6) Driving With Detectable Amounts Of Marijuana Or Controlled Substances In One’s Body.

In a DUI drugs per se prosecution, the state must prove you had detectable amounts of a controlled substance or marijuana in your system through either a blood or urine test. A breath test would not show the presence of anything besides alcohol. For marijuana and lawfully prescribed medications, the state must prove that the substance impaired you using the less safe standard. For illegal drugs or prescription drugs for which you do not have a prescription, the mere presence of the drugs in your body will result in a per se violation. So, there is no specific limit for marijuana and lawfully prescribed medications, and there is zero tolerance for illegal drugs or unlawfully obtained prescription drugs.

Once a drug enters your body, it begins breaking down into its derivative metabolites. For marijuana, the initial metabolites are still impairing while the subsequent metabolites are not. The GBI’s report will break down the amount of those various metabolites, and a skilled attorney will be able to explain the impairing or non-impairing impact that the various metabolites would have on you. If metabolites of illegal drugs are present, then a successful defense would depend on having the entire test result thrown out. Otherwise, the defense would have the more difficult task of throwing doubt on the reliability of the results based on the unreliability of the testing process or chain of custody. For a marijuana or prescription drugs case, the defense may want to hire a toxicologist to discuss the levels of drugs present and how they would interact. Typically, the state will have the GBI toxicologist testify, and they always tend to say that the drugs were impairing you. Having an expert of our own to contradict the GBI toxicologist is much more persuasive than trying to get concessions during cross-examination of the state’s witness.

For more information on DUI Law in Georgia, an initial consultation is your next best step. Get the information and legal answers you seek by calling (470) 728-1725 today.

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Carl Chapman
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