I get a lot of questions concerning DUI laws in Georgia, and there seems to be a lot of misconceptions concerning such cases; so, I prepared the following information piece. I have tried to cite statutory and case law when possible while mixing in some my personal experiences and understanding. This is not intended to be a comprehensive document.
Intro (See 40-6-391 and 40-6-392 OCGA):
Georgia DUI law allows for two types of DUI charges to be made. The first type is per se, which is a term that means “in and of itself”. In other words, it is a level of intoxication at which the law presumes that a driver is intoxicated to the point that they are unsafe to operate a vehicle. There are several different levels of per se. For a driver over the age of 21 and not operating a commercial vehicle, the per se level is .08. For a driver under the age of 21 and not operating a commercial vehicle, the per se level is .02. For a driver operating a commercial vehicle, the per se level is .04.
The second type of DUI charge that can be made is a “less safe” case. A less safe case can be made when the person is under the influence to the point where they are less safe to drive. There are no specific presumptions based on blood alcohol content (BAC) in a less safe case. The case is upon the observations of the arresting officer from everything from the suspect’s driving, to their demeanor during the contact, to field sobriety exercises. This type of arrest must be articulated by the officer.
DUI cases can be made for those driving under the influence of drugs as well. Please note that DUI of drugs is not limited to illegal drugs. A person can be DUI from legally prescribed drugs just as if they had been smoking marijuana.
An officer may make a stop based upon reasonable suspicion or probable cause. As they relate to DUI/traffic stops, a probable cause stop is when an officer observes an actual violation of the law such as a moving violation or an equipment violation. A reasonable suspicion stop is when an officer observes a pattern of driving that indicates that a driver may be intoxicated, and an officer may make a stop to investigate (think Terry). Once an officer has dispelled intoxication, the stop must end unless the officer has developed other probable cause of a crime.
Weaving. Often times a driver or an officer will use the terminology of stopped for “weaving”. Weaving has two different meanings; so, clarification is in order. Weaving to some people means weaving back and forth within a lane of travel. This is not illegal; however, it can be a basis for a reasonable suspicion stop depending upon the extent of the weaving. This is something that an officer experienced in DUI enforcement can learn to recognize and is not simply the normal slight back and forth pattern that even a sober person will do within a lane. The other weaving is actually “failure to maintain” a lane of travel (see 40-6-48 OCGA). This is when a driver actually crosses over the lane dividing line or the fog line. This IS illegal and is basis for a probable cause stop. Obviously, people do this and are not intoxicated, but it is a legally sufficient reason to make a stop and can result in a ticket purely on its own.
Obviously, some violations are more indicative of DUI than others, and the violations in and of themselves should not be the sole basis for a DUI charge.
After the officer initiates the stop, he or she will make contact with the driver. Everything about the driver is being observed from eyes, speech, dexterity, comprehension and everything else. I’ve had people hand me credit cards, student IDs, and all sorts of other things when I asked for their driver’s license, for example. An officer should be paying attention for the odor of alcoholic beverages as well. The odor alone is not purely indicative of a DUI driver. A drink could have been spilled on the driver. Other occupants in the vehicle may have been drinking, and the driver may have had some alcohol, but some consumption does not automatically mean intoxication.
Now for one of my pet peeves: These are often referred to as field sobriety tests. The term “tests” indicates a pass or fail line, and this is not the case. They should be properly termed as Voluntary Field Sobriety Exercises (VFSE or FSE). The VFSEs are a “totality of circumstances” tool for evaluation and are not a bright line pass or fail test. They are entirely voluntary. Whether or not to participate is up to the driver. My response when asked what would happen if the driver declined to participate was that I would make my decision based upon my observations to that point, and this statement was/is entirely accurate. Obviously, a person that is all over the roadway, is stammering or with slurred speech, has glassy and or bloodshot eyes, and can barely stand is more likely to get arrested than the person who slow rolled a stop sign but doesn’t “seem” plastered.
The portable breath test is NOT the state’s test of a driver’s breath. The PBT can only be used to show positive for alcohol. The actual numerical reading is not admissible in Georgia at this time, but there is a company producing a PBT that can be calibrated and has been accepted in other states. The PBT is completely voluntary.
Implied Consent (40-5-55 and 40-5-67.1 OCGA):
If the officer makes an arrest, Implied Consent comes into play. At that time (after the arrest has been made) the appropriate Implied Consent notice is read. The state can seek test(s) of the driver’s blood, breath, urine or other bodily substances. If a driver refuses the test(s) their license may be suspended for one year. After submitting to the state’s test(s), the driver is entitled to their own test(s) at their own expense and from qualified personnel. The officer must facilitate this within reason. The “within reason” part of that has been the subject of much case law.
If a driver refuses the test(s) or provides a per se sample, the officer should issue a 1205 form. This form grants a 30 day permit to drive, and the driver has a right to a hearing on the license suspension. If the driver does not provide a per se or results are pending, a 180 day sticker is placed on the DUI citation. If results later come in as per se, a 1205S form is completed starting the license suspension process.
Please note that failure to submit to each of the requested test(s) is a refusal. If asked for blood and breath and a driver only submits to blood the driver can still be considered a refusal on breath portion.
I always seek to build a less safe case. If I don’t have a less safe case, I don’t make the arrest. The actual test(s) results were just basically an afterthought. I never had an arrest were test(s) results were obtained that did not go per se.
Once again, this isn’t comprehensive. It is merely to give a better understanding of DUI law and procedure in Georgia.
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