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, utilizing the test result (and the inferences discussed above) or proceeding on other evidence in the case, such as 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 BAC level.

A DUI conviction or plea of “guilty” or nolo contendere will be a permanent part of your driving record. It does not “come off” your record after 5 years... it never comes off your record. Moreover, a conviction, guilty plea or nolo contendere plea is reported to the Georgia Department of Public Safety, which in turn, reports it to the National Driver’s License Registry. These computer records are accessible to driver’s licensing agencies nationwide.

Any non-resident driver’s home state driver’s license agency (DMV, DPS, etc.) will receive a notice from the Georgia Department of Public Safety if any license suspension or case disposition (conviction or nolo contendere plea) occurs in Georgia and the non-resident license is involved. In almost all cases, a nolo plea or a guilty plea or guilty verdict in a criminal case for DUI in the State of Georgia will cause a suspension to occur in the non-resident’s home state. A “not guilty” verdict or other non-DUI disposition of the case will prevent such consequences.

Legal Limits of Alcohol

An alcohol content reading of .02 BAC is the level for per se (legally DUI) intoxication for persons under the age of 21 at the time of arrest who are accused of violating subsection “k” of the DUI code. This means that if you are under 21 years of age and submitted to the state’s test where the result was .020 or higher, you may be accused of driving with an unlawful blood alcohol level under subsection “k” plus be accused of “DUI - Less Safe” under subsection “a”, based on other evidence (including manifestations of impairment, driving conduct, or other evidence).

An alcohol content reading of .04 BAC is the level for per se (legally DUI) intoxication for persons accused under subsection “i” of the DUI code who were stopped while operating a commercial vehicle. This means that if you submitted to the state’s test and the result was .040 or higher, you may be accused of driving a commercial vehicle while having an unlawful blood alcohol level. If a driver is stopped in a commercial vehicle and the State’s test reveals ANY alcohol, a 24-hour out-of-service order will be issued, and the truck will be impounded until said time period is over.

An alcohol content reading of .10 is the level for per se (legally DUI) intoxication for persons who are age 21 and older and accused of violating subsection 40-6-391(a)(5) of Georgia law. The prosecutor, however, must be able to prove that the test given was a valid test, and that it was taken within 3 hours of driving or being in actual physical control of a vehicle. This means that if you submit to testing and yield a result over .099, you will be accused of driving with an unlawful blood alcohol level under subsection “(a)(5)”. No evidence of “bad driving” or visible signs or manifestations of impairment is REQUIRED to obtain a conviction for this type of DUI.

Other than the two methods of proving DUI-alcohol for the various “types” of vehicles or drivers, Georgia law also provides for prosecution of other types of “impaired” driving. A person can be prosecuted for driving under the influence of alcohol and drugs, or drugs (prescribed or non-prescribed), or DUI contraband (illegal) drugs such as marijuana or cocaine. Since July 1, 1996, Georgia has had a new type of DUI: DUI toxic vapors (from everyday substances such as paint thinner, lacquer, varnish, etc.). This type of intoxication requires proof of INTENT to inhale these vapors. Hence, occupational “intoxication” may result in prosecution for DUI “toxic fumes”. Depending on the type of evidence available (i.e., from a blood test), a prosecutor can proceed on any or all of these “types” of DUI. [NOTE: These vapors cannot be accurately measured by a BREATH testing device. A blood test is the only approved type of implied consent test presently available to quantify the toxicity and effects of such vapors]

“Repeat offender” status for DUI cases is determined in Georgia based upon a five-year “lookback” period. This status is used for purposes of increased mandatory minimum punishment. This “lookback” period has nothing to do with how long a DUI remains on your record. In deciding the extent to which a repeat offender should be punished, most judges will look at a person’s lifetime record, not just the five year “lookback” period. The last sheet of this Summary is a GRID which sets out in a handy chart the MANDATORY MINIMUM punishment for DUI cases in which the arrest was made on July 1, 1997 and after.

Whenever the 5-year “lookback” period is discussed herein, the method of counting is as follows:

• take the DATE OF ARREST for the previous DUI offense (not the disposition or plea date);
• the prior DUI “counts” against you, whether it was disposed of as a plea of guilty, with a trial resulting in a “guilty” verdict or where a nolo contendere plea was ultimately accepted; and
• take the DATE OF ARREST in the current case, and determine if more than five full years have expired.

A bad record can come back to haunt a person facing a current DUI charge. Remember that a judge can (and many do) ignore the 5-year lookback period and review your ENTIRE record for purposes of:

• increasing your punishment (up to the maximum penalties set by law) over that which he/she would give another person with no prior record;
• allowing the prosecutor (in some instances, after notice and a pre-trial hearing) to introduce evidence of prior instances where you were convicted of driving while impaired, or even plead guilty or nolo contendere to a driving under the influence charge. The prosecutor may attempt to bring in evidence from any case, even those older than 5 years. This is called “introducing evidence of similar transactions”. Some judges will not readily admit similar transaction evidence from other DUI cases, due to its tremendous prejudicial harm to the current case. Other judges routinely permit prior transaction evidence into the current case; and
• not allowing a nolo contendere plea (a valuable right, for civil penalty purposes, if an accident has occurred).

The counting of “first”, “second”, etc., relates to which offense this is within the 5 year “look-back” period. This determines minimum punishment that must be assessed if a guilty verdict or plea is entered, or (if available) upon entry of a nolo contendere plea.

SPECIAL NOTE FOR ANY CONVICTION OF DUI OR PLEA OF GUILTY OR NOLO CONTENDERE: The sentencing court has broad powers at sentencing insofar as whether to grant "probation". Furthermore, if probation is granted (in lieu of jail time), the conditions of probation can be extremely onerous and restrictive. Moreover, all jurisdictions charge monthly "supervision" fees so that the person pays for his/her probationary sentence. The length of probation is optional with the judge, up to the length of the maximum amount of jail time.

DUI First offense: Considered to be a “Simple Misdemeanor” under Georgia law

[NOTE: No person who has had a prior nolo contendere plea or guilty plea or verdict within the 5-year “lookback” period is eligible to receive the benefits of a nolo contendere plea. A nolo plea is unavailable for persons arrested July 1, 1997 or after who take a State test and have a result higher than 0.15%. Also, drivers under age 21 at the time of arrest are ineligible for “nolo” treatment.]

• Fine: $300-$1,000 (plus statutory surcharges and assessments which can add 15% to 25% to the fine amount.)
• Jail: 10 days to 12 months (all except 24 hours of the sentence may be suspended, stayed, or probated). The only persons who may avoid the 24 hour mandatory jail sentence are first offenders who had a chemical test (blood, breath, or urine) of less than 0.08 grams %. The new law will be applied by each judge, and therefore, a person who refused testing may be eligible for (but not necessarily ENTITLED to) a “no jail time” sentence. All others who are convicted must go to jail.
• Community Service: A minimum of 40 Hours of Community Service is MANDATED, but persons under 21 with a first offense under subsection “k” of the DUI code and who have a BAC level of less than 0.08 grams % must perform not less than 20 hours. The exact number of hours is set by the sentencing judge.
• License Suspension: For those 21 and over when arrested, a one year suspension, but a 120 day “work permit” is available to first offender adults. Drivers under 21 will be revoked for either 6 or 12 months, and can have NO PERMIT WHATSOEVER. After 120 days and completion of the DUI driving school course, application for reinstatement by drivers 21 and older is possible. Therefore, 121 days after conviction, adult first offenders may apply to the Department of Public Safety for possible early reinstatement of his or her license by submitting proof of completion of the Risk Reduction Program and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in). Some courts prefer that community service work be completed before a plea is taken. The eligibility rules for the use of a nolo plea for non-residents are the same as for residents. A nolo contendere plea will not “save” a Georgia license for any arrests made July 1, 1997 or after. In addition, for persons licensed by a state other than Georgia, a nolo contendere plea generally will not “save” your license, absent some special law in your home state which permits this. The home state will routinely suspend or revoke the person’s license in their home state. So, a nolo contendere plea for licensees of states other than Georgia is generally no better than a guilty verdict at trial, or a plea of guilty. This puts a premium on winning the case, or obtaining a non-DUI disposition.

A plea of nolo contendere is always discretionary (optional) with the judge handling the case. Beginning July 1, 1997, the nolo plea is unavailable to those drivers who are under the age of 21 at the time of arrest. It is often unavailable in the event of a refusal to submit to a chemical sobriety test at the time of arrest since many judges will not accept a nolo for “refusal” cases. A nolo is also unavailable to any person who has had a prior guilty plea or verdict or a prior plea of nolo contendere to DUI in the past 5 years. The new DUI bill which became effective July 1, 1997 eliminated the “license saving” aspect of the nolo plea which many Georgians previously sought. Now, even if a nolo plea is accepted for “civil” liability reasons, a Georgia driver’s license (or privilege to drive in Georgia, for non-resident licensees) will be lost.

The disposition of the offender’s license (if convicted) is dependent on the person’s age. Persons under 21 suffer a “revocation” of their license. This is usually for 12 months, but can be for 6 months for persons under 21 with a first DUI offense and a BAC under 0.08 grams %. A “revocation” differs from a “suspension” in that a revocation totally voids all driving privileges plus the license. A “revoked” under-21 driver must start over completely with the entire driver’s license process, eye exam, driving test, etc.

The individual judge decides whether he/she will accept a nolo plea. Any person who has a BAC test of over 0.15 cannot plead nolo. Any person under age 21 who was stopped July 1, 1997 or after and charged with DUI is totally ineligible. Before July 1, 1997, drivers under age 18 were ineligible.

Many judges require a copy of your lifetime driving record. In addition, many judges want to know your record in prior states of residence. Even one prior DUI will cause some judges to deny nolo treatment. Sometimes a bad driving history (with no prior DUIs) will cause a judge to deny this plea alternative, plus will cause the judge to punish more severely.

The new law which took effect July 1, 1997 (and which applies to arrests made on or after that date) also carries revocation punishment for a list of other serious driving offenses and some alcohol-related crimes when the offender is under the age of 21. The revocation will not be lifted until proof of completion of the Risk Reduction Program is received and a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in) is paid. The obligation of filing this paperwork in a timely and complete manner is on the licensee.

IN SUMMARY, OFFENDERS WITH A BAC OF .15 OR MORE CANNOT PLEAD NOLO. NOLO TREATMENT IS ALWAYS OPTIONAL WITH THE JUDGE, BUT CANNOT BE PERMITTED FOR A PERSON WHO HAS A PRIOR DUI WITHIN 5 YEARS. FURTHERMORE, LICENSE SUSPENSION (OR REVOCATION FOR DRIVERS UNDER 21) IS MANDATORY, EVEN IF A NOLO IS ACCEPTED. FOR DRIVERS UNDER 21 AT THE TIME OF ARREST, NOLO IS NOT AN OPTION WHICH IS AVAILABLE. FINALLY, AFTER JULY 1, 1997 THE “LICENSE SAVING” ASPECTS OF A NOLO PLEA NO LONGER EXIST.

DUI Second Offense/Guilty Plea or Being Found Guilty at Trial (Simple Misdemeanor)

• Fine: $600-$1,000 (plus statutory surcharges and assessments, which can add 15% to 25% to the fine amount)
• Jail: 90 days to twelve months. All but 48 hours of jail time can be suspended, stayed or probated. Forty-eight (48) hours in jail is MANDATED. However, a few judges will consider (in the right case and with the right witnesses and proof) permitting all or part of the “jail” time to be served at either (a) a halfway house or “work release” program; (b) a “detention” drug/alcohol treatment [in-house facility]; (c) by way of “house detention”, whereby you must be at home and respond to monitoring and testing whenever you are not at work, treatment, etc. The judge decides whether this will be an alternative sentence available to you, and (if so) he/she sets the rules of when you must be at home. Any alternative to traditional jail time is a matter of planning by the attorney and client, and is usually subject to “negotiations” between the prosecutor and the defense attorney which are later implemented by the judge into a formal, written order or “sentence”. The remainder of the sentence may be suspended, stayed or probated—at the judge’s discretion. Persons under 21 who are convicted under subsection “k” must be segregated from the general jail population. Persons under 21 convicted under code sections (“a” or “i”) have no statutory protection which requires segregation from the general jail population.
• Community Service: Not less than eighty (80) hours of Community Service is MANDATED in all cases, except second offenders under age 21 who are convicted under subsection “k” and have a BAC of less than 0.08 grams % may be sentenced to as little as 40 hours of community service.
• Mandatory Alcohol and Drug Assessment and Treatment (if dictated by the assessment): Every repeat offender must now be evaluated and follow all treatment recommendations.
• License Suspension: For adults convicted under subsection “a”, three year suspension. No “work” permit available to anyone for any reason during the first 120 days. For persons under age 21 convicted under subsection “k”, a 12 month revocation of license applies to all offenders, with no work permit at all. All offenders (over 21 or under 21) must also be completely finished with all alcohol and drug treatment before they can qualify for a license. After a minimum of 120 days following the date after the suspension began, and completion of a driving school course, application for reinstatement of privileges for adults 21 and over at the time of arrest is possible. However, unless all alcohol and drug treatment is completed, no license can be reinstated. If enrolled but not finished with an alcohol and drug treatment program, a “limited” (work) permit can be obtained until all treatment is completed. Therefore, 121 days after conviction, “adult” offenders may apply to the Department of Public Safety for possible early reinstatement by submitting proof of completion of the Risk Reduction Program, plus proof of completion of alcohol and drug treatment, and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in).
• Ignition Interlock Devices (Optional): For all second and subsequent offenders, a court may order the installation of ignition interlock device for a 6 month (or longer) period. This cost is paid by the offender. The device prevents an offender from starting his vehicle without first blowing into a breath tube. The device “sounds” an alarm every hour while the vehicle is running, and the offender must blow into the device again. Otherwise, the vehicle stops. This device prevents any driving after consuming alcohol.

DUI Third Offense/Guilty Plea or Being Found Guilty at Trial (High and Aggravated Misdemeanor)

• Fine: $1,000-$5,000
• Jail: For third offenders, One Hundred Twenty (120) days to twelve months. All but ten (10) days may be suspended, stayed or probated. Ten (10) days in jail is MANDATED. However, some judges will consider [in the right case and with the right witnesses (e.g., alcohol rehabilitation counselors) and other proof] permitting all or part of the “jail” time to be served at either (a) a halfway house; (b) in drug/alcohol treatment [in-house]; (c) by way of “house detention”, whereby you must be at home and respond to monitoring and testing whenever you are not at work, treatment, etc. Any alternative to traditional jail time is a matter of planning by the attorney and client, and is usually subject to “negotiations” between the prosecutor and the defense attorney which are later implemented by the judge into a formal, written order or “sentence”. The remainder of the sentence may be suspended, stayed or probated, at the judge’s discretion. Persons under 21 who are convicted under subsection “k” must be segregated from the general jail population.
• Community Service: Not less than twenty (20) days of Community Service is MANDATED. Some judges translate “days” to mean 20 eight-hour workdays (160 hours); others translate this into 20 twenty-four hour days (480 hours) of “service”. Persons under 21 who are convicted under subsection “k” and have a BAC under 0.08 gram % may be permitted to perform as little as 40 hours of community service, at the sentencing judge’s discretion.
• License Revocation: Five year license revocation, and the offender is declared a Habitual Violator. Adult offenders may apply for a probationary license after two (2) years of the 5-year revocation period provided that stringent reinstatement requirements are met. Offenders should contact the Department of Public Safety for specific requirements, or ask his/her legal counsel. No “work” permit is permitted whatsoever. Persons under 21 are also revoked for 12 months, and must ultimately retake all licensing tests to be re-licensed. The new law does not specify if the 12 month revocation is added to or served concurrently with the 5-year revocation.
• Mandatory Alcohol and Drug Assessment and Treatment (if dictated by the Assessment): Every repeat offender must now be evaluated and follow all treatment recommendations. No license will be restored or re-application allowed until this has been completed.
• License Plates Confiscated (Mandatory): If the vehicle in which the DUI arrest was made was titled in the offender’s name, its tag will be confiscated and turned in to the local tag office. If the offender was driving a vehicle owned by someone else, all the vehicles owned by the offender will be “sanctioned and confiscated.” Sale or transfer of any “sanctioned” vehicle(s) will be done only with the approval of the State Revenue Commissioner.
• Photo Published in Newspaper: In conjunction with a third (or subsequent) conviction, a notice of conviction will be published in the local newspaper including:

1) Photograph of offender taken at time of arrest
2) Name and address of offender is given
3) Date, time, place of arrest and disposition of the case
4) The offender is assessed an additional $25.00 fee to be paid to the Clerk of Court to cover the cost publishing the photograph
5) The size of the photo and written notice that accompanies it is 1 column wide by 2 inches high.

• Ignition Interlock Devices (Mandatory): For all third offenders offenders, a court must order the installation of ignition interlock device for a 6 month (or longer) period. This cost is paid by the offender. The device prevents an offender from starting his vehicle without first blowing into a breath tube. The device “sounds” an alarm every hour while the vehicle is running, and the offender must blow into the device again. Otherwise, the vehicle stops. This device prevents any driving after the consuming alcohol.

Drug Offenses and DUI-Contraband

While a DUI offense involving drugs may be prosecuted by the State even where the drugs are prescribed by a physician, special rules apply to DUI-contraband cases. These cases involving illegal substances (marijuana, cocaine, heroine, etc.) in the driver’s blood system. The DUI offense here is based upon driving while having an unlawful substance in your blood system. The prosecutor is not required to prove impairment caused by the illegal drugs in your system. Mere proof of the presence of a contraband substance or its “metabolites” is sufficient to render a conviction.

Beyond the misdemeanor DUI-contraband penalties set forth above, Georgia law has other more punitive statutes for possession of drugs. A “possession” offense may be committed by a person driving a car, or by a person not operating a car. However, a person driving a vehicle may face both the DUI-contraband offense AND the possession offense.

These “possession” statutes are generally felonies, except where small amounts of marijuana are involved for first offenders. So, a test which shows positive for cocaine will sometimes result in a felony prosecution for possessing cocaine (i.e., possessing it within your body). Other drugs are often found in the person’s pockets or in the vehicle. As covered hereafter, your driver’s license can and will be suspended for possession of drugs EVEN IF you were not driving when arrested.

First Conviction on Possession of Controlled Substance (Felony) or Marijuana (Misdemeanor or Possible Felony depending upon if a repeat offense and quantity)

• Fine: Up to $1,000 for marijuana/Court’s discretion for other controlled substances (like heroin, cocaine, etc.).
• Jail: 1 - 15 years depending on the substance.
• Community Service: Up to twelve (12) months of Community Service for possession of marijuana.
• License Suspension: 180 day minimum. 181 days after conviction, offenders may apply to the Department of Public Safety for possible early reinstatement of driving privileges by submitting proof of completion of a Risk Reduction Program and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in). No “work” permit whatsoever is allowed for “drug” offenders.

These are minimum sentences for a first offense on possession of a controlled substance. Driving a car while in possession of these controlled substances is not an element of the offense. In other words, the person can be standing inside a building and be in possession of marijuana or other controlled substances and lose driving privileges. Additional penalties may be set at the discretion of the judge/court depending on the severity of the offense and substance. Recent case law (8/96) indicates that repeat offender marijuana possession must be transferred to a Superior Court, where the District Attorney may bring felony charges.

Second Conviction on Possession of Controlled Substance or Marijuana (Felony)

• Fine: At the Judge’s discretion
• Jail: 1 - 30 years depending on the substance
• License Suspension: One year minimum. After one year, offenders may apply to the Department of Public Safety for possible early reinstatement of driving privileges by submitting proof of completion of a Risk Reduction Program and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in). No “work” permit available.

These are minimum sentences for a second offense on possession of a controlled substance. Additional penalties may be set at the discretion of the judge/court depending on the severity of offense and substance. A second offense can be disposed of as a misdemeanor, but is a matter of negotiation for the District Attorney, defense attorney and trial judge.

Any conviction of DUI or possession of marijuana or other controlled substance requires mandatory participation in the Risk Reduction Program in order to apply to the Department of Public Safety for possible reinstatement of driver’s license. Suspensions will not “age off”, so as to automatically entitle you to drive once again. Application must be made, and fees paid before driving privileges will be restored.

DRIVING WHILE YOUR LICENSE IS SUSPENDED

First Offense Driving on a Suspended License (Simple Misdemeanor)

The penalty for a first offense of driving on a suspended license is not less than 2 days nor more than six (6) months of jail time and the fine is not less than $500 nor more than $1,000. The Department of Public Safety will automatically suspend the driver’s license for 6 months (from date of conviction) with no “work permit” available. If the suspended driver is ultimately determined to have been suspended, any suspension called for here is ADDED ON to other existing suspension periods. No reinstatement fee is required, however, and this suspension may “age off”.

Second (or Subsequent) Offense for Driving on a Suspended License (High and Aggravated Misdemeanor)

The penalty for a second offense of driving on a suspended license is not less than 10 days and no more than one year of jail time and the fine is not less than $1,000 nor more than $2,500. The Department of Public Safety will automatically suspend the driver’s license for 6 months (from date of conviction) with no “work permit” available. If the suspended driver is ultimately determined to have been suspended, any suspension called for here is ADDED ON to other existing suspension periods.

Georgia Law Regarding Underage Drinking While Driving (Simple Misdemeanor)

Persons under the age of 21 who are convicted of being in possession of alcohol while operating a motor vehicle have a mandatory 120 day driver’s license suspension and must attend the Risk Reduction Program and pay a reinstatement fee of $25.00 (mail-in) or $35.00 (walk-in). No work permit is available and no early reinstatement.

Juveniles age 16 and under who have a FIRST offense of DUI or possession of alcohol...

...will have his or her license or driving privilege suspended revoked for 6 or 12 months and will have to attend the Risk Reduction Program or court approved juvenile program and pay a reinstatement fee of $200.00 (mail-in) or $210.00 (walk-in).    Revoked drivers under age 21 start over on the entire licensing process, including the written and driving tests.

Juveniles age 16 and under who have a SECOND offense of DUI or possession of alcohol...

...will have his or her license or driving privilege revoked for 12 months and will have to attend the Risk Reduction Program or court approved juvenile program and pay a reinstatement fee of $200.00 (mail-in) or $210.00 (walk-in). Revoked drivers under age 21 start over on the entire licensing process, including the written and driving tests.

An Open Container of Alcoholic Beverage...

...will be considered in the possession of the driver if it is (a) not in the possession of a passenger or (b) is not locked outside of the passenger compartment (trunk/glove compartment). An officer will follow these rules in making an arrest, but “possession” can be contested at trial, especially since passengers can have open containers of alcohol inside the vehicle. The driver can be fined up to $200.00 and receive 2 points on his or her driver’s license. [NOTE: Some counties or cities (e.g., Savannah) have stricter open container ordinances and prohibit any person—driver or passenger—from having open containers in the car.]