Elements of a Georgia DUI

There are many different ways that a driver can be charged with DUI in the state of Georgia.

You must be driving or in actual physical control of a moving vehicle in order to be charged.  Under Georgia law, the offense can occur on public roads or on private property.  Being behind the wheel with the keys in the ignition and the radio or heater on may be enough to qualify as "actual physical control."

The safest thing to do is to stay out from behind the steering wheel if you have had anything to drink or have any medication or drugs in your system.    However, particularly when speaking of medication, that is not always possible.

There are then two sets of alternatives in which a person can then commit DUI:

Less Safe Offenses

It is a violation of Georgia law to be driving or be in actual physical control of a moving vehicle while under the influence of one or more of the following to the extent that the person is "less safe."

  • Alcohol
  • Drugs or Medications
  • intentional influence of any glue, aerosol, or other toxic vapor ("huffing")

Per Se Offenses

There are several per se offenses in Georgia.

  • It is a violation of Georgia law to have an alcohol concentration of 0.08 (0.10 before July 1, 2001) grams percent or more within three hours of driving or being in actual physical control of a motor vehicle from alcohol consumed prior to or at the time of driving.
  • It is a violation of Georgia law to have an alcohol concentration of 0.04 grams percent or more while driving or being in actual physical control of a moving commercial motor vehicle.
  • It is a violation of Georgia law to be under the age of 21 and have an alcohol concentration of 0.02 grams percent or more within three hours of driving or being in actual physical control of a motor vehicle from alcohol consumed prior to or at the time of driving.
  • It is a violation of Georgia law to have present in the person's blood or urine any marijuana or controlled substance, including any metabolites or derivatives, whether or not there is any alcohol usage. However, the portion of the statute dealing with marijuana has been declared unconstitutional. It is currently unsettled as to whether other "controlled substances" also fall afoul of the equal protection clause. That distinction will turn upon the legal availability of the particular controlled substance.

Additional Offenses

A person also commits a DUI offense by being DUI as set out above and having a minor child under the age of fourteen (14) years in the vehicle.  This offense is counted as a DUI for purposes of license suspension issues. For instance, a mother transports her two under 14 year old children to school and is stopped and charged with DUI because the police believe that the Ambien she took the night before to sleep is impairing her driving.  She could be charged with DUI and 2 counts of Endangering a Child by DUI.  If the mother pleads guilty to the three offenses, she would be declared to be a habitual violator, have her license revoked for five years and with only limited opportunity to get a permit after two years.

Evidentiary Issues

Alcohol test results, the following evidentiary inferences may be considered by the judge or jury that hears your case:

If the alcohol test shows the alcohol concentration is 0.05 grams percent or less, it may be inferred that the person is not under the influence of  alcohol

If the alcohol test shows the alcohol concentration is in excess of 0.05 grams percent but less than 0.08 grams percent or less, there is no inference as to whether the person is under the influence of alcohol shall arise from the alcohol test result

If the alcohol test shows the alcohol concentration is 0.08 grams percent or more, then it may be inferred that the person is under the influence of alcohol.

If the alcohol test shows the alcohol concentration is 0.08 grams percent or more, this is a per se violation as discussed above if it is properly charged against you.

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