Georgia DUI Laws

State DUI Laws

Georgia DUI Laws

Georgia’s DUI Laws can be found in the Official Code of Georgia Annotated (O.C.G.A.).  Under Georgia’s laws, anyone who operates a motor vehicle while under the influence of alcohol can face DUI charges if their blood alcohol level is:

  • 08% or higher, for those who are 21 years of age or older
  • 04% or higher if they are operating a commercial vehicle
  • 02% or higher for anyone who is 21 years old or younger
  • Georgia DUI – statute(s)
    • Code Ann., § 40-6-391.
  • Georgia DUI – standard
    • “A person shall not drive or be in actual physical control of any moving vehicle while: . . . [u]nder the influence of any drug to the extent that it is less safe for the person to drive.” Ga. Code Ann., § 40-6-391(a)(2). DUI – applicable substances Any drug.
  • Georgia DUI – affirmative defense
    • “The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense.” Ga. Code Ann., § 40-6-391(b).
  • Georgia DUI Per se – statute(s)
    • Code Ann., § 40-6-391. Per se – standard “A person shall not drive or be in actual physical control of any moving vehicle while . . . there is any amount of marijuana or a controlled substance . . . present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.” Ga. Code Ann., § 40-6-391(a)(6).
  • Georgia DUI Per se – applicable substances
    • Marijuana or a controlled substance, including the metabolites and derivatives of both.
  • Georgia DUI Per se – affirmative defense
    • Georgia law provides that a person’s legal entitlement to use a drug is not a defense but that “such person shall not be in violation . . . unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.” Ga. Code Ann., § 40-6-391(b). As such, the law makes a distinction between persons legally entitled to use marijuana / controlled substances (standard = rendered incapable of driving safely) and those that are not legally entitled (standard = illegal if any amount in breath or blood). The Supreme Court of Georgia has held this distinction to be unconstitutional. Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999).
  • Georgia DUI Implied consent – applicable drivers
    • Person operating a vehicle upon Georgia highways “or elsewhere throughout the state.” Ga. Code Ann., § 40-5-55(a).
  • Georgia DUI Implied consent – tests authorized
    • Chemical test or tests of blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug. Ga. Code Ann., § 40-5-55(a).
  • Georgia DUI Implied consent – basis for test
    • Test may be requested where: (1) driver arrested for any offense arising out of an alleged violation of § 40-6-391; and (2) LEO must have “reasonable grounds to believe” the driver was operating a moving vehicle in Georgia in violation of §40-6-391. Ga. Code Ann., § 40-5-55(a).
    • Alternatively, a test can be requested without arrest if: (1) a driver is involved in “any traffic accident resulting in serious injuries or fatalities”; and (2) LEO has “reasonable grounds to believe” the driver was operating a moving vehicle in Georgia in violation of §40-6-391. Ga. Code Ann., § 40-5-55(a). The Supreme Court of Georgia, however, has held that this provision is unconstitutional to the extent it allows a chemical test without any determination of probable cause. Cooper v. State, 277 Ga. 282, 587 S.E.2d 605 (2003).

Georgia DUI Implied consent – evidence of refusal

  • An offender’s refusal to submit to a chemical test at the time of his arrest is admissible in evidence in any criminal trial. Ga. Code Ann., § 40-6-392(d).

Georgia DUI Implied consent – administrative / civil penalty for refusal

  • Driver’s license suspension of one year. Ga. Code Ann., § 40-5-67.1(d). Implied consent – criminal penalty for refusal None.

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