What happens if I am convicted or enter a guilty plea for DUI?               

The “look back” period for DUI punishment is 10 years.  This means for purposes of determining whether your DUI is your first you count back 10 years.  This differs from your eligibility for license reinstatement, which is a five-year “look back” period.

First DUI (in 10 years)

The punishment for a First DUI in ten years is set by statute and is as follows: 12 months probation.  A fine of $300.00 to $1000 (as of July 1, 2012 a 50% charge is added and will go to the State Of Georgia).  Jail time of not fewer than ten days not more than 12 months, but the Judge has discretion to probate, stay or suspend jail time.  40 hours community service is required but may be lowered to 20 hours in DUI Less Safe cases.  DUI School is required in all cases.  A clinical evaluation as defined by O.C.G.A. 40-5-1 (substance abuse evaluation followed by recommended treatment) is required but may be waived by the Judge.

Second DUI (in 10 years)

If a person is convicted or pleads guilty to a second DUI the punishment increases and is set by statute as follows: 12 months probation, a fine of $600.00 to $1000.00, jail time of not fewer than Ninety (90) days, not more than 12 months, but the Judge has discretion to probate, stay or suspend all but 72 hours of jail time and thirty (30) days community service.  DUI School is required in all cases.  A clinical evaluation as defined by O.C.G.A. 40-5-1 (substance abuse evaluation followed by recommended treatment) is required.

Can I get “First Offender” status for a DUI charge – NO

Can I plead Nolo?  Yes under some circumstances, but a Nolo plea no longer will save your driver’s license.

What is DUI?

It is illegal to be in control of a motor vehicle if under the influence of alcohol or drugs to the extent that you are “less safe” to drive or if your alcohol content is 0.08 or more.  There are two basic types of DUI prosecutions.  DUI Less Safe and DUI Per Se.

What is DUI Less Safe?  (Cases where there are not test results or results are under the per se limit).

It is unlawful to be in control of a motor vehicle if you are under the influence of alcohol or drugs to the extent that it is less safe to drive.  The State will generally try to use a combination of driving conduct, field tests and physical observations (i.e.. odor of alcohol, unsteady on feet, slurred speech, etc.) to make out its case.  The arresting officer will usually testify that it is his or her “opinion” that this combination of factors shows the defendant was a “less safe” driver due to the influence of alcohol or drugs.

What is DUI “Per se”

Georgia law makes it illegal to be in control of a motor vehicle if your alcohol concentration (BAC) is 0.08 grams or more at any time within three hours after driving. O.C.G.A. 40-6-391(a)(5).

If a police officer suspects a person to be under the influence of alcohol that officer may request that person to blow on an “alcosensor”.  This is a handheld device to test for the presence of alcohol.  This number may not be used in court except to the show the presence of alcohol.  However, after a person is arrested on suspicion of DUI they will be asked to submit to another alcohol breath test on a larger machine called the “Intoxilyzer” usually located at the police department or the jail.

So what do the numbers on the “Intoxilyzer” mean?  Well, the higher the BAC number the more likely it is that you will be arrested for DUI.  Any number over the “per se” or “legal” limit will be enough to convict you if proper procedure was followed.

The “legal limits” in Georgia are as follows:  The “per se” alcohol limit for adults over 21 is 0.08 grams.  Drivers under age 21 can be convicted of “per se” DUI with an alcohol content of 0.02 grams.  Commercial drivers have a 0.04 limit.

However, a person can be prosecuted if his or her blood alcohol level is below the “legal limit”.  For example, if you are in a wreck and a test shows your blood alcohol level is 0.07 you can be prosecuted for DUI.

The legal presumptions as regards to alcohol (BAC) are as follows.  If you have a BAC below 0.05 then there is a presumption of non impairment.  If you have a BAC of 0.06 to 0.079 there is a neutral position, where neither side can take advantage of an inference.  However, you can be prosecuted if you have a BAC of .05 or over.  If you have a BAC of 0.08 you are “per se” DUI and can be convicted based on that number.

How much can you drink and still be “ok” to drive?  The simple answer is that is it not wise to drink any amount of alcohol and drive.  A taxi is much cheaper than hiring a DUI lawyer.  Finding a designated driver is much easier than finding someone to bond you out of jail.

The “legal limits” in Georgia are as follows.  In 2001, Georgia lowered the “per se” alcohol limit for adults over 21 years of age to 0.08 grams. The old blood alcohol level was 0.10 grams.  Drivers under age 21 can be convicted of “per se” DUI with an alcohol content of 0.02 grams.  Commercial truck drivers have a 0.04 grams percent limit.

However, a person can be prosecuted if his or her blood alcohol level is below the “legal limit”.  For example, if you are in a wreck and a test shows your blood alcohol level is 0.07 you can easily be prosecuted for DUI.  Will you be found guilty?  That is up to a jury but why take the risk.  If you are arrested for DUI then by all means hire a lawyer to protect your rights.  However, it is wiser to never put yourself in a position where you have to hire a DUI lawyer.

The simple answer to the above questions is that one should not drink any amount and drive.  The wise course is to drink in moderation and to always to have a designated driver or take a taxi.  However, Georgia law does not prohibit the consumption of alcohol nor does it prohibit you from drinking a small amount and then driving.  The law does prohibit you from driving a motor vehicle while having a blood alcohol content (BAC) of .08% or higher for adults, .04% for commercial drivers and .02% for those under 21 OR being under the influence of alcohol to the extent that it is ‘less safe” for that person to drive.

There are two basic ways a person can be prosecuted for driving under the influence of alcohol.   The first is to have a blood alcohol content above the “per se” legal limit.  The “per se” limit is .08% or higher for adults, .04% for commercial drivers and .02% for those under 21.  The State need merely be able to introduce evidence that a person’s blood alcohol level is above the “per se” limit to convict a person of DUI. 

However, if an adult non-commercial driver has a blood alcohol content below .08% that driver can STILL be prosecuted!  The law has “presumptions” and “inferences” for drivers who have a blood alcohol content below the “per se” limit.  A blood alcohol of .05% or lower provides the defendant with a presumption or inference that the defendant was not impaired to drive.  This inference can be rebutted by the State by evidence of impairment.  For example, if a person has a blood alcohol level of .05% but there is evidence that they were showing clear signs of alcohol impairment then the State can still prosecute that person for DUI.  A blood alcohol content of .06% or .07% is a neutral position where neither the State nor the prosecution can take advantage of an inference.  So, remember even if your blood alcohol level is lower than the .08% per se limit you can still be arrested, prosecuted and convicted of DUI.

The second type of prosecution is a “less safe” prosecution.  The elements of a “less safe” prosecution are that a driver is under the influence of alcohol to the extent that the driver is less safe to operate a motor vehicle.  This is how a driver is prosecuted when they refuse to submit to a test by breath, blood or urine of their blood alcohol content.  Typically, to convict a driver of a “less safe” DUI the State must have evidence of bad driving and testimony of physical impairment typical of someone under the influence of alcohol. 

So, how do you know if you have had too much to drive?  The simple answer is that you cannot know for certain.  The law gives prosecutors many ways to convict you of DUI so it is best to be cautious and to avoid driving after having any amount of alcohol to drink.  However, if you do find yourself in court for DUI it is wise to hire experienced counsel as quickly as possible.  A DUI can suspend your driver’s license, raise your insurance, cost you a job, and land you in jail.

Legal disclaimer: The information contained on this page and this entire website is for informational purposes only and are not intended as legal advice.  You should always consult an attorney before taking legal action.  Reading this website or any website is not a substitute for a trained attorney.  This website does not create an attorney-client relationship between you and Shawn Bible Law Firm.  Mr. Bible serves all Northwest Georgia, including the cities of Ringgold, Fort Oglethorpe, Dalton, Lafayette, Trenton, Summerville and Rossville, in the counties of Catoosa, Walker, Chattooga, Dade, and Whitfield.