Types of DUI under Georgia Law

There are two types of Driving Under the Influence (DUI) charges under Georgia law—Per Se violations and Less Safe violations. Per Se violations involve an unlawful Blood Alcohol Content (BAC) or the detection of impairing drugs in your system. Blood Alcohol Content is the ratio of blood to alcohol in a person’s system.

In Georgia, the level of BAC that is considered unlawful for drivers 21 and over is 0.08 percent or above. In this situation, the prosecution will not have to prove that your driving was impaired or that your driving was unsafe. Your BAC is sufficient evidence for a conviction.

If your BAC is between 0.05 and 0.08 percent, the prosecution may still try to convict you of a DUI charge. In this situation, the prosecution will have to prove that you were a “less safe” driver.

Evidence the prosecution may try to introduce to prove that you were a “less safe” driver could include officer testimony that your speech was impaired, your eyes were bloodshot, there was the scent of alcohol in the car, or that you performed subpar during field sobriety testing. This evidence will be used to convince the judge or jury that you were under the influence of drugs or alcohol to such a degree that your driving was impaired and you were a “less safe” driver.

This type of evidence is purely subjective, as there are many reasons why a person not impaired by drugs or alcohol could exhibit these traits. A good DUI attorney will recognize this weakness of the prosecution and represent his client accordingly.

If you are a driver of a commercial vehicle in Georgia, a BAC of 0.04 percent is unlawful and constitutes a per se DUI conviction.

If you are below the age of 21, a BAC of 0.02 percent is unlawful and constitutes a per se DUI conviction. This is part of Georgia’s “Zero Tolerance” approach to underage drinking; any amount of alcohol in the system of someone under the age of 21 constitutes a violation.

Traffic Stops and Probable Cause

In order for an officer to stop you and request that you submit to BAC testing or field sobriety tests, the officer must have an articulate probable cause for doing so. This is a protected right of the individual under the Fourth Amendment of the United States Constitution and the Constitution of the State of Georgia. Police officers have a duty to perform searches and seizures when they believe that a particular crime has been committed, or is in the process of being committed, but the performance of these actions must be justified by reasonable probable cause.

Probable Cause To Suspect Driver is Under the Influence

In the context of a DUI investigation, if an officer pulls over a driver for committing a traffic violation (such as failing to come to stop at a red light, swerving, or failing to signal) and smells alcohol on the driver’s breath or sees alcohol bottles inside the car, this is sufficient probable cause to believe that the driver may be impaired.

The officer may then proceed to question to driver about his or her recent alcohol consumption, request that the driver submit to field sobriety testing, and/or submit to BAC testing in the form of a breathalyzer or blood test*. However, the officer must observe behavior or circumstances in excess of the traffic violation for which the person is being pulled over. Race and gender can never be considered as factors in determining probable cause.

Probable cause may also be established by circumstantial evidence. An example of this type of evidence is if someone sees a driver commit a hit-and-run and calls the vehicle information in to the police. If the police then locate and stop that driver, they have probable cause to begin investigating even though they themselves did not witness the accident.

Another source of probable cause is information obtained over the police scanner or information received from a witness. Either of these situations is enough to give an officer reasonable probable cause if he locates the driver in question.

Search and Seizure Law in Georgia

Also under the Fourth Amendment is an individual’s right to be free from unlawful search and seizure. This right includes an individual’s right to not be subjected to a search without a warrant.

However, if in the course of being pulled over, an officer forms probable cause that a driver is under the influence of drugs or alcohol, in certain situations, probable cause may extend to a full search of the vehicle without the requirement of a warrant.

If the officer did not have reasonable probable cause to search driver or the vehicle and performed a search without the driver’s consent and without a warrant, the search is invalid under the Fourth Amendment. In this situation, any evidence that the officer may have obtained from the search should be inadmissible and excluded as evidence in court.

If you or someone you know has…

If you believe that you have experienced an illegal search and seizure, it is in your best interested to hire an experienced DUI defense attorney. Don’t let illegally obtained evidence be used against you. A good DUI defense attorney is knowledgeable about the nuances of the law and can insure that your rights are upheld in court. Contact Horlick Law Firm immediately to discuss your case.

Field Sobriety Tests

Once you have been pulled over by an officer and are suspected to be under the influence of drugs or alcohol, there are several field tests that an officer may request that you perform to determine if you are intoxicated. A few examples of standard field sobriety tests are as follows:

• Walk and turn
• One-legged stand
• Horizontal Gaze Nystagmus (HGN)
• Preliminary Breath Test

Field sobriety tests are used to determine whether the officer has probable cause to make a DUI arrest. Even if you “pass” the field sobriety tests, an officer may still request that you submit to a chemical test to determine your BAC. This test could consist of testing your breath to determine the BAC. The breath test may preliminarily conducted at the site of the stop via a PBT device.

A blood or urine test could also be requested by the officer. A blood test will provide a more accurate BAC level than the road-side breathalyzer. The urine test will indicate the presence of any narcotics in the driver’s system. Both of these tests will require that you go into the station or to a hospital with the officer for testing. Remember, also, that in Georgia, you have the right to request an additional test of your choosing at your expense.

Refusal to Submit to Field Sobriety or BAC Tests

If a driver refuses to submit to field sobriety tests, the officer may then request that he submit to a chemical BAC test if the officer believes he has sufficient probable cause to suspect that the driver is impaired. If a driver refuses to submit to a chemical test and the officer has probable cause to suspect that the driver is intoxicated, this could lead to a DUI arrest. The officer has the discretion to arrest after the driver’s refusal if the officer believes the driver to be impaired.

Breath, Blood and Urine Tests

Blood Alcohol Tests can consist of testing a person’s breath or blood for a determination of the current BAC. Breath tests can be conducted roadside via the use of an officer’s PBT machine. A urine test can be requested to determine the presence of alcohol or any narcotics in the driver’s system. This device..

Suspension of License and Administrative Hearings

If asked to take a chemical test and you refuse, or if you submit to testing and “fail,” the arresting officer will file form 1205 to begin the process to initiate the administrative suspension of your license.  Remember, this is SEPARATE from your criminal case.  You only have 10 BUSINESS DAYS after your arrest to request an administrative hearing to keep your license.  If you do not request a hearing within 10 business days, your license will be automatically suspended 31 days after the date of your arrest.

Depending on your record, and whether a prior refusal exists, this suspension may last from one to five years. And if you didn’t refuse, but you took the test and “failed,” you may be able to apply for a 30-day work driving permit. However, if you do not request a hearing within ten days and you refused chemical testing when arrested, you will be not be allowed a limited work driving permit – even if it is your first DUI offense.

In many circumstances, you may be eligible for a limited work driving permit, and if you complete your DUI Risk Reduction course and pay a reinstatement fee, to apply for early full reinstatement of your license after only 120 days.  Remember, if your license is suspended administratively because your BAC was over the legal limit, the amount time that your license was suspended will be credited against any mandatory license suspension periods if you plead guilty or are convicted of DUI.  You cannot get this credit, however, if you refused to submit to chemical testing and are subsequently found guilty of DUI in criminal court.

THIS ARTICLE IS NOT INTENDED TO BE COMPREHENSIVE OR PROVIDE LEGAL ADVICE.

GEORGIA DUI AND TRAFFIC LAW IS COMPLICATED AND ALWAYS CHANGING.

PLEASE CONTACT HORLICK LAW FIRM IMMEDIATELY TO DISCUSS YOUR SPECIFIC CASE.

You DO NOT have to submit to these tests.

These Field Sobriety Tests have varying degrees of scientific weight, and are mostly gauged subjectively – based on the officer’s “observations.” Remember, if you have been asked to submit to FSTs, the officer probably already suspects you of DUI and is just looking for more probable cause for arrest.  And it doesn’t take much…

You may think that you can “pass” these tests and be on your way, but that is rarely the case.  On each test, the officer is looking for a minimum number of clues to suggest that you are Driving Under the Influence, and whether or not you’ve been drinking, and however well you think you’ve done on these tests, you may be providing the officer with the “clues” needed for arrest.  REMEMBER: You DO NOT have to submit to these tests.

Though there may be legal consequences and license implications for your refusal to submit to Field Sobriety Tests, it is still your right to refuse them, and without results from these tests, it can be difficult and often impossible for the State to convict you of Driving Under the Influence (DUI).

The most commonly administered roadside Field Sobriety Tests (FSTs)  include:

• PBT (Preliminary Breath Test)
• HGN (Horizontal Gaze Nystagmus)
• Walk and Turn
• One-Legged Stand

While the tests described above are the most common Field Sobriety Tests a driver might encounter when stopped and suspected by the police of DUI, other tests and lines of questioning may be used.

Contact the experienced Horlick Law Firm to discuss the specifics of your case today!

As the blue lights flash and you pull your vehicle off to the side of the road, remember, this is not a casual police-citizen encounter.  This is not just a friendly chat. The officer has pulled you over. He already has his or her suspicions, and may already have what he or she believes to be probable cause to ticket or arrest you for the violation they allegedly observed.   But they are always looking for more.

As a licensed driver in Georgia, you must know your rights and keep this in mind when speaking with the police.  Whether or not you have violated the law, the police are always looking for clues that you might have.  Be polite, and be respectful, but remember:

You are under no obligation to give them more fuel for the fire.  Especially in cases where a driver is suspected of Driving Under the Influence (DUI), the officer looks to the driver to make his or her job easier, to make admissions or establish probable cause for arrest (that he or she may not have independently observed) in a number of ways.

REMEMBER:

You have the right against self-incrimination.

You have the right to remain silent.

Anything you say or do can and will be used against you.

Even before your rights are read to you, it is your duty as a conscientious citizen and driver in the State of Georgia to be aware of them.

If you are suspected of Driving Under the Influence, it is crucial that you keep this advice in mind.  

It is the officer’s job to establish probable cause for arrest, NOT YOURS.

Though there are consequences for refusing certain tests (discussed more thoroughly here), there may also be consequences for performing them.  It is your choice to make, and your choice should be an informed one.

If you have any questions about this, or your case specifically, please contact Horlick Law Firm immediately for a free case evaluation and consultation.

Atlanta DUI and Criminal Defense Attorney Robert S. Horlick of Horlick Law Firm has represented thousands of clients charged with crimes ranging from traffic offenses to DUI to all misdemeanors and felonies in the trial process in Atlanta, all surrounding areas, and throughout Georgia.  He works diligently and consistently for his clients, and provides zealous advocacy for all.  At Horlick Law Firm, you are not just a number.  Your rights and your livelihood deserve protection by someone with compassion and experience.

For years, as a Public Defender in Fulton County, Robert Horlick defended hundreds upon hundreds of clients, charged with ALL types of crimes, at all stages of the trial process, in Superior and Juvenile Court.  Fighting for the lives and rights of the indigent, and working closely with everyone involved in the process – clients, families, social workers, district attorneys, judges – Robert Horlick truly worked to find the best resolution to each issue.

Building on the strong foundation of experience, relationships, and expertise developed as a public defender in Fulton County, Robert Horlick joined a small private firm based in Marietta, Georgia.  There, practicing mostly criminal defense, he defended clients and successfully resolved cases (and broadened his practice areas, experience, and range of personal relationships) in over 30 counties throughout Georgia (including Fulton, Dekalb, Cobb, Cherokee, Douglas, Paulding, Rockdale, Newton, Clayton, to name a few).

Horlick Law Firm was founded to focus solely on providing aggressive, savvy and skillful representation and communication to clients charged with DUI or any other criminal offense in and around Georgia.  We have the experience and will fight for your license, your rights, and your livelihood.

As it is stressful and confusing to say the least when you or a loved one is facing such charges, hopefully you find this site easy to navigate and informative. While no website is, or should be, a substitute for the informed research and specific advice of an attorney, if this site gives you a better general understanding of the law and its’ consequences, and the reasons why you MUST hire an attorney to fight for you and help you navigate through this process, then it has succeeded.

Please click on the icon above to contact Horlick Law Firm immediately at (404) 487-8473, fill out one of the forms on this site, or email info@horlicklawfirm.com anytime to discuss your case and how we can help you.

In many instances, drivers charged with Driving Under the Influence not only face suspension of their license based on any criminal conviction that may occur, but also administratively, as a result of an administrative license suspension hearing (discussed in more detail below).

Administrative License Suspension and 10-Day Rule:

If you are charged with DUI Per Se, or refuse to take the State administered chemical test of your blood, breath, or urine upon request by a police officer (because of the consequences defined by the Implied Consent laws in Georgia), the officer is required by law to submit paperwork to the Department of Public Safety that petitions for license to be suspended administratively.  This paperwork initiates an administrative license suspension (ALS) hearing which is run by OSAH, the Office of State Administrative Hearings.  This proceeding is separate and distinct from the criminal charges you face upon arrest, but also subjects you to license suspension.

Keep in mind: You are not automatically guaranteed this hearing.  In fact, you only have 10 DAYS from the date of your arrest to request an administrative hearing, and if you do not, your license will be administratively suspended as a matter of law after thirty (30) days.

If you refuse to submit to chemical testing, fail to request a hearing in a timely manner, and your license is suspended administratively, it does not matter if you ultimately take your case to trial and win, or plead or are found guilty of an offense other than DUI (such as Reckless Driving)…your license will be suspended for one (1) to five (5) years, depending on your criminal record, and you will not be eligible for any limited hardship driving permits.

First DUI:

If you submit to the chemical testing of your blood, breath or urine as requested by the police officer upon arrest for your first DUI, and request an administrative hearing within 10 days but lose the hearing, you are eligible for a limited permit to drive for work, and based on the completion of certain conditions, potential early reinstatement of your driving privileges.   The same is true if you submit to chemical testing but do not request an adminstrative hearing in a timely manner.

Second and Subsequent DUIs:

If you do not request an administrative hearing in a timely manner, or you do request the hearing in a timely manner but lose, you are not eligible for any limited hardship permits to drive.  Depending on how many DUI convictions you have on your record, you face at least a three (3) year license suspension.

Because the clock starts ticking on any DUI charge immediately, and because the penalties can be imposed almost immediately as well, it is important to contact an attorney immediately to discuss the particulars of your case.  Georgia DUI law is complicated, and requires careful navigation and attention. It is highly recommended, therefore, that you hire an experienced attorney at Horlick Law Firm to help you through this process.