How Is A DUI Defined In The State Of Georgia?
Most people think of a DUI, a driving under the influence, as having a blood alcohol content of .08 or higher, which is commonly referred to as a “per se” DUI (OCGA § 40-6-391(a)(5). While it is true that this is one version of a DUI in Georgia, a lot of people do not realize that there is another version, called a “less safe” DUI (OCGA § 40-6-391(a)(1)). In a nutshell, to prove a less safe DUI, all the state has to do is show that (1) you were under the influence of alcohol and (2) that, as a result, that you were less safe to drive. So technically you could be at a blood alcohol content (or BAC) of .01 and still get a “less safe” DUI. And normally, whatever they pulled you over for – speeding, swerving, touching the line – will be evidence in and of itself that you were “less safe.”
You also have to remember that under Georgia law you can get a DUI for driving under the influence of legal or prescription medications and illegal drugs (OCGA § 40-6-391(a)(2). All the state has to show is (1) that you were under the influence of some substance, whether legal, prescribed or illegal, and (2) that you were “incapable of driving safely” as a result. There is another statute (OCGA § 40-6-391(a)(6)) that provides for a “per se” DUI – that is to say an automatic DUI without the need to prove that your ability to drive was affected – if you are under the influence of any amount of any illegal drug. While that statute has been challenged on appeals, it has not yet been totally overturned.
What Happens After Somebody Is Pulled Over Under Suspicion Of Being DUI?
You are basically referring to the different phases of a DUI stop.
Being Pulled Over: Normally the authorities have to have a reason to pull you over in the first place, but that can be something as simple as not wearing a seatbelt, having an expired tag, having a tail or license plate out, and the like. Of course it can also be speeding, swerving, failing to maintain your lane – these are commonly seen reasons for pulling someone over.
First Interaction: The next interaction normally occurs when the officer approaches the side of your car, at which time they normally ask for your license, registration and proof of insurance. They probably have already run your license plate through their onboard computer. And while they are waiting on you to provide the requested information, they are watching you, smelling your breath, looking in your car and being observant of anything that might be indicative of you driving under the influence. If you have consumed alcohol, the officer will be alerted to your red, watery, and bloodshot eyes, smell of alcohol, slurred speech, delayed responses, etc. At this point, the officer will usually ask you to step out of the car.
Portable Breath Test: Then the officer will either administer a portable breath test, and/or ask you to perform field sobriety tests. A portable, or field breath test is a small device the officer carries with him while on patrol that gives an approximate reading of your blood alcohol content based upon your breath. Usually they are one of three types – Alco-Sensor, ALERT device, or Alcolyzer. You do NOT have to consent to doing a field or portable breath test and should not. What happens if you do? A positive result gives the officer probable cause to arrest you, and the fact that you were positive may be able to be used against you in court as well, but they cannot use the specific number result against you in court – to do that, they have to administer to you the full Breathalyzer test, which normally is done back at the station after they arrest you.
Field Sobriety Tests: The officer will usually attempt to administer several field sobriety tests, or FSTs, as well. These include (1)the horizontal eye gaze nystagmus test, where the officer holds a pen or his finger in front of your eyes and asks for you to follow it; (2) the “leg lift”, and (3) the “walk and turn.” There are specific standards on how these tests are supposed to be performed issued by the National Highway Traffic Safety Administration and a detailed review of them by an attorney is often necessary to determine whether they were appropriately done.
Arrest: If the officer thinks they have probable cause to believe you are driving under the influence based upon the factors we discussed, they will then arrest you. Normally this means you will be handcuffed, patted down to ensure you have no weapons or contraband, and placed into a police vehicle to be transported to the station.
Advisements: At the time of arrest, they may read you your Miranda rights, the thing everyone sees on television that starts, “You have the right to remain silent. Anything you say may be used against you…and so forth.” Importantly they do NOT have to read you your rights. That is a common misconception, that if they fail to read you your rights, you get off Scott free. Not true. It just means that if they do not read you your rights, anything you say after you are in custody cannot be used against you in court. Another advisement they normally WILL give you is the “implied consent advisement.” They usually will do this upon arrest, arrival at the station or both. Under Georgia State law (OCGA § 40-5-55(a)), if you operate a motor vehicle in the State of Georgia, you are deemed to have consented to participating in a chemical test (by breath, blood or urine) for the presence of drugs or alcohol in your system, and if you refuse, the State can suspend your driving privileges within the State for a year based solely upon your refusal, and not to be confused with the State’s right to suspend your driving privileges separately through an administrative suspension hearing, which we will talk about later.
Important points about the Implied Consent Advisement: One important point about the implied consent advisement is that, even though the law presumes you consent to providing a breath, blood or urine sample, you still have the right to refuse. Another important point is that you have the right to demand an independent test, and if the officer fails to reasonably accommodate your request, then their test will not be admissible against you in court. So if you decide that you are going to consent and give a sample, which normally I and most other attorneys would advise against, then demand your right to a second independent test.
Intoxilyzer: Next the officer will normally take you to the nearest police or sheriff station where they have an Intoxilyzer breath machine and, after giving you the Implied Consent Advisement, as if you will provide a sample. Unlike the field Breathalyzer, the specific results of this machine’s test will be admissible against you in court (assuming the machine was properly inspected and functioning and that the officer properly administered the test).
Involuntary Testing: There are circumstances where you can be forced to provide a sample, and that is where a warrant is issued by a judge authorizing a forced withdrawal of blood or testing. Sometimes when they have roadblocks setup, they will have a judge on call to issue warrants.
For more information on DUI Charges In Georgia State, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (912) 662-5555 today.
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