Georgia DUI LAW

TWO TYPES OF DUI-ALCOHOL: In a "traditional" DUI case, the State must prove that the driver was a less safe driver as a result of alcohol consumed. This type of case can be pursued even if no alcohol content test result exists from a blood, breath or urine test. A test result would not exist, for example, when a person had refused testing. Whenever a person has taken a blood, breath, or urine test, the State also will attempt to introduce evidence of the quantitative result. To "help" the prosecutor prove "less safe" driving, the legislature passed a law that permits a prosecutor to benefit from certain "legal" inferences about any alcohol "level" if proven in court. Under prior law (before July 1, 2001) a blood alcohol level of 0.08% or higher was the level of "inferred" impairment for all drivers. A change in the wording of the law appears to have eliminated that "inference," which gave the prosecutor an advantage at trial. Georgia law also sets forth other "inferences" in the law, including the fact that persons who have a blood alcohol level of .05 or under are inferred (presumed) to NOT be impaired by alcohol. However, the State can attempt to refute that inference ("presumption") of non-impairment by other proof (e.g., a collision, atrocious driving, disregard for the safety of others, slurred speech, etc.). If a person is 0.06 or 0.07, neither the driver nor the prosecutor is given the benefit of an "inference." In other words, "the BAC number" does not receive a legislated "inference" for EITHER side.

The second way that the State may attempt to prove some DUI cases [where there is a chemical sobriety test result (blood, breath or urine) over the applicable legal limit] is known by lawyers as the "per se" DUI-alcohol offense. It would be more accurate to call this driving with an unlawful blood alcohol level. To prove this type of DUI-alcohol, the State does not need to prove any "less safe" driving or any "drunken" condition. The offense is committed simply by having an unlawful blood alcohol level and "operating" an automobile. For persons charged under paragraph 5 of subsection "a" of the DUI law (the adult standard), the prohibited "level" is 0.08 grams % or more. Before July 1, 2001, the adult standard was 0.10 grams % or more. For persons charged under subsection "k" (for drivers under age 21 at the time of the arrest who take a blood or breath alcohol test), the "per se" limit is now only 0.02 grams % (as little as one drink). For persons charged under subsection "i" of the DUI code (for persons driving a commercial vehicle who take a blood or breath alcohol test), the "per se" level is 0.04 grams %. For all "per se" calculations, the State is allowed to use a test taken by police within three (3) hours of driving, when the alcohol in the person's system was consumed BEFORE the driving ended.

Hence, when there is a blood, breath or urine test result "in evidence", there are two separate ways that the State may seek to prove a DUI case: (1) by proving less safe driving ability, utilizing a test result, if available (and the inferences discussed above) or proceeding on other evidence in the case, such as driving conduct, field sobriety tests, smell of alcohol, etc., or (2) by proving that the person was driving with an unlawful blood alcohol level. This method of proving DUI-alcohol requires a blood, breath or urine test. In refusal cases, the State usually can only pursue and prove a "less safe" DUI-alcohol case since no chemical test result is available to prove the blood alcohol level.

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