"First the man takes a drink, Then the drink takes a drink, Then the drink takes the man."
– EDWARD R. SILL
Apart from minor traffic offenses, a charge of Driving Under the Influence might be the most likely way the average citizen would run afoul of the law. Should this unfortunate situation befall you, here are a few factors to consider:
– Is the traffic stop legal? An improper stop may be a defense to a DUI charge. Each case is different, and there are several factors which can determine the validity of the initial traffic stop. Seek advice from an attorney to learn more.
– Is there probable cause for the officer to suspect intoxication? Clues that officers look for to determine probable cause can include:
– The smell of alcohol or other intoxicants on the driver's person or in the vehicle
– Slurred speech
– Horizontal Gaze Nystagmus (this is the test where you are asked to follow a pen with your eyes)
– If such clues appear, the officer may request that a chemical test be performed in order to determine your Blood Alcohol Content. If such tests are to be performed, the officer must recite the Georgia Implied Consent Notice to you. This Notice must be read at the time of arrest, or as soon after as circumstances permit, although this need not be a formal arrest. "Arrest" in this sense simply means you are not free to leave.
"Per Se" or "Less Safe?"
– The relatively new offense of "Less Safe DUI" does not require a Blood Alcohol Concentration of .08 grams, as does "Per Se DUI." All that is required under "Less Safe" is that your abilities are impaired due to intoxication such that your driving is less safe. This determination is often made by either your committing a traffic offense, or by a refusal to submit to chemical or field sobriety tests. But it is important to note, neither of the above is required, simply the officer's opinion that you are less safe due to intoxication may suffice. In addition, glue, aerosol fumes, or any toxic vapor which can affect visual or mental acuity may expose you to a DUI charge. Any amount of marijuana or controlled substance in the blood or urine exposes you to a DUI charge, regardless of the presence of alcohol in your breath or blood.
– Also consider that the .08 grams BAC does not only apply while you are driving. By statute, if your BAC is .08 up to 3 hours after driving, you can be convicted of DUI. OCGA 40-6-391(a)(5). In addition, if your BAC is .08 or higher, there is no requirement for the State to show that your driving was actually impaired.
– If arrested for Per Se DUI, or after having refused to submit to chemical or field sobriety tests, you have ten business days to schedule a hearing to avoid an administrative suspension of your driver's license. If this hearing is not scheduled, your driver's license will be administratively suspended for a length of time dependant on your previous criminal history.
– If convicted of DUI, your license WILL be suspended, and if your BAC was .08 or greater, you MUST serve at least 24 hours in custody. If this requirement was not met by your initial detention at the time of arrest, then you will have to serve whatever balance remains after your plea or trial has concluded. These mandatory minimums are for a 1st lifetime DUI for drivers 21 or older. Minimum penalties for repeat offenders and minors under the influence are harsher.
– Any license suspension comes through the Georgia Department of Driver Services, not the Court, and is theoretically indefinite. At the end of your license suspension, you are now eligible to have your license reinstated. For example, if your license were suspended January 1st for a period of 6 months, you would not automatically be able to drive legally on July 1st. You would simply be able to seek reinstatement of your license from DDS at that time.
Changes in DUI law can be easy to miss in everyday life. If you have any questions or are in need of advice or representation pertaining to DUI or any area of legal need, please call Flint, Connolly & Walker at (770) 720-4411