Getting a DUI is no minor matter. A DUI conviction means you will have a misdemeanor, high and aggravated misdemeanor, or felony on your record, plus points against your license. And, if you have a child in the vehicle when you are stopped, you could face additional penalties.
If you have been arrested or charged with DUI, or think you’re about to be, then contact an Atlanta DUI defense lawyer as soon as possible to protect your rights.
The State’s DUI Statute
Georgia law defines “driving under the influence” as being in physical control of any moving vehicle when:
- Having consumed alcohol makes it less safe for you to drive than if you hadn’t;
- Taking any drug, prescription, over-the-counter, or illegal, makes it less safe for you to drive than if you hadn’t;
- Ingesting any other substance, including sniffing aerosol, glue or another toxic vapor, makes it less safe for you to drive than if you hadn’t;
- You are under the influence of any combination of the above; or
- Your blood alcohol concentration is 0.08 grams within three hours of being in physical control of a vehicle. Likewise, if you have any amount of a controlled substance or marijuana in your blood, urine or both, you will be considered under the influence and could be faced with penalties. This also includes metabolites and derivatives that may or may not be present in your blood or on your breath.
Take note: Even if you have prescriptions for the drug you are taking, you could still face DUI charges if you are not capable of operating a vehicle safely.
Also, you must be even more careful if you are driving a commercial vehicle. In addition to all of the “less safe” provisions above, the maximum blood alcohol limit” for commercial drivers is 0.04 grams.
In Georgia, you are, “Driving under the influence,” if you have a blood alcohol concentration (BAC) of .08% or higher. Your BAC may be measured from breath, urine, and blood samples. Georgia law prohibits any operation of a motor vehicle while intoxicated. This includes having physical control of the vehicle while alcohol, drugs, or a combination of substances make it “less safe” to drive.
Because this is a low standard, drivers may be arrested even if blood or urine tests detect only a “small” amount of a controlled substance. The presence of marijuana, anxiety medication, and even over-the-counter drugs may impair the ability to operate a vehicle, resulting in a DUI charge. Law enforcement and courts consider the following factors in determining whether a DUI arrest or conviction is proper:
- First time or repeat offender
- Juvenile and underage drinkers
- Implied consent of drivers to DUI test
- Refusal to take blood, urine, or breath test
- Accident involving property damage, bodily injury, or death
- Presence of glue aerosol, toxic vapor, or other drug, regardless of BAC
Driving Under the Influence (DUI) charges in Georgia can be complicated for an individual to deal with without the immediate assistance of an experienced DUI attorney adept in Georgia law. The State of Georgia takes DUI charges very seriously, prosecuting them vigorously and often imposing multiple penalties upon conviction. In addition to any criminal charges that may be filed, people arrested for a DUI in Georgia must also go through an Administrative License Suspension Hearing (ALS) to determine the status of their driver’s license.
If you have been charged with a DUI, seek representation immediately. Any delay could result in jail time and loss of driving privileges. Atlanta DUI defense attorney David Schnipper has extensive experience helping drivers get back on the road and will work diligently to represent your interests.
Blood Alcohol Concentration (BAC) and Actual Physical Control
The purpose of determining the concentration of alcohol or drugs is to show that their presence made it “less safe” to drive or control an automobile. The legal limit is a BAC of .08% or less. But drivers may still be charged with DUI if a lower concentration of alcohol or drugs made vehicle operation “less safe.” Those with BAC levels of .08% or higher may be automatically charged with DUI, even if this amount was not enough to make them “drunk” or actually affect vehicle operation.
Underage drinkers (under the age of 21) may be convicted of DUI with BAC levels of .02% or higher. Drivers operating trucks, tractor-trailers, and other vehicles requiring a commercial driver’s license may be convicted of DUI if their BAC level is .04% or above. Georgia law provides more stringent punishment for these drivers.
Georgia law prohibits any individual with a BAC of .08% to exercise actual physical control over a vehicle. Actual physical control does not require driving, but only the ability to operate a vehicle. This punishes motorists who are merely present in the vehicle with access to the keys. Only the ability to drive is required for a DUI charge.
Types of Field Sobriety Tests
Field sobriety tests are a way for Georgia police officers to gauge whether a driver is sober or intoxicated. The three most common tests are:
- Horizontal Gaze Nystagmus (HGN) Test: The officer will hold a small object in front of the driver and instruct him or her to follow the object’s line of motion with his or her eyes. The officer is watching so see whether the driver cannot follow the object, or if his or her eye(s) begin to twitch, as evidence of intoxication.
- Walk and Turn Test: The officer instructs the driver to take nine heel-to-toe steps in a straight line, turn, and repeat the same action in the opposite direction. The officer is watching for the driver to lose his or her balance or to fail to follow the instructions as evidence of intoxication.
- One Legged Stand Test: The officer instructs the driver to stand on one foot, with the other foot six inches off the ground and arms out to the sides, and to count out loud. The officer is watching for the driver to lose his or her balance in any way, including hopping or wobbling, to count incorrectly, or otherwise fail to follow instructions, as evidence of intoxication.
Despite the fact that police officers use field sobriety tests regularly, these tests are highly unreliable indicators intoxication. Improper administration of the tests and the tests’ highly subjective nature are only two ways they can yield inaccurate results. Other confounding factors may include poor weather, uncomfortable or poorly fitting shoes, natural lack of coordination, nerves, fatigue, age or physical characteristics, and illness, to name a few.
What You Need to Know
Georgia Administrative License Suspension (ALS) Hearings
If you have been arrested for DUI in Georgia, it is important to understand that the arresting law enforcement officer has likely commenced two individuals cases versus you. In addition to the criminal matter, the law enforcement officer likely also filed a DDS-1205 form with the Georgia Department of Driver Services. The DDS-1205 form initiates an independent civil proceeding which the Georgia Department of Driver Services seeks to administratively suspend your driver’s license for either declining to submit to the state-governed chemical testing or for submitting to a chemical test that specifies your blood alcohol concentration (BAC) is above the legal limit. This administrative license suspension is separate of the license suspension that would ensue with a guilty conviction on the DUI charge, but it is preventable as long as you hire an experienced Atlanta DUI lawyer to help you with the appeal process. Here is what you need to know:
You Have 30 Days to Take Action Before Losing Your Driver’s License
After receiving the notice of administrative license suspension (ALS), you have only a small window of time to protect your driving privileges. It is vital to appeal the suspension by asking for a hearing within 30 days of the date of arrest. It is necessary to make a request for a hearing to prevent an automatic suspension of your license within the 30 days of your arrest. Failure to tender your request within the said time will result in the suspension of your driver’s license on the 45th day subsequent to your arrest without a hearing.
What Happens During the ALS Hearing?
ALS Appeal hearings are usually scheduled anywhere from two to four weeks after the ALS Appeal is forwarded to the Georgia Department of Driver Services. The administrative hearing is not a criminal matter, and the administrative law judges who preside over ALS Appeals are compelled by stern statutory laws that do not include mitigating factors. The following factors may limit the judge in arriving at a decision:
- Reasonable Grounds – Did the law enforcement officer have reasonable grounds to feel that you were driving under the influence and that the arrest was lawful?
- Automobile Accident – Were you involved in a motor vehicle accident relating to your intoxication?
- Implied Consent – Did the law enforcement officer inform you of your implied consent rights and the penalties of declining to take the chemical test upon arrest?
- Blood Alcohol Testing – Did you reject the chemical test, or was your blood alcohol concentration (BAC) over the legal limit?
- Proper Test Administration – Did the law enforcement officer administer the test properly?
It is significant to note that ALS Appeals are by the rules of civil procedure and the burden of proof is not the “beyond a reasonable doubt” norm used in criminal cases. In its place, the burden of proof is the “preponderance of the evidence” standard, which is a much lower burden. After the hearing is concluded, you will receive a formal decision within five business days.
What Are the Possible Outcomes?
ALS hearings are typically resolved in one of three ways. First, it is possible that the law enforcement officer may not show up at the ALS hearing. Since ALS hearings are civil proceedings and not criminal proceedings, they are a lesser concern to the law enforcement officers. If a law enforcement officer is subpoenaed to appear in court simultaneously, the officer will usually just skip the ALS hearing and attend the criminal court matter. Second, the law enforcement officer will frequently agree to withdraw the administrative suspension and permit the outcome of the criminal case to decide whether the client’s driver’s license is suspended.
Lastly, if the law enforcement officer shows up to the hearing and declines to withdraw the administrative suspension, it may be required to carry on with the hearing. Most ALS hearings are very concise, concentrating primarily on whether the law enforcement officer obeyed correct procedure in making the arrest and administering the chemical test. If the judge decides that procedure was not properly adhered to, the judge will produce an order reversing the administrative license suspension. Though, a win at the administrative license suspension hearing is not necessarily a win in criminal court. You must still answer to the DUI criminal charges in criminal court, which again, is a separate procedural entity and your license could still be suspended upon conviction of DUI.
As explained below, the more DUI convictions you get, the more severe the penalties you face will be.
First Conviction Penalties
- With a plea of nolo contendere accepted, and if you have no other DUI convictions in the last 10 years (and no pleas of nolo contendere), you could be fined up to $1,000. The minimum fine is $300.
- You could be imprisoned for at least 10 days to a maximum of 12 months. If the court agrees, jail time could be stayed, suspended or probated. However, if your BAL was over 0.08, you have to do a mandatory 24 hours in jail.
- You could receive up to 40 hours of community service, and at least 20 hours if your BAL was less than 0.08.
- You may have to complete the DUI Alcohol or Drug Use Risk Reduction Program. You have 120 days after your conviction to take the program, or, if you are imprisoned, 90 days after you are released.
- You could also be required to undergo a clinical evaluation.
- You could face up to 12 months probation if you are not imprisoned. Probation is 12 months minus time served in jail.
Second Conviction Penalties
- If you get a second DUI conviction within 10 years, you may be subject to any or all of the following:
- A minimum fine of $600 and up to $1,000.
- Jail time for at least 90 days and up to 12 months, plus probation for any jail time not served (traded out). The defendant must serve at least 72 hours in jail to get probation.
- At least 30 days of community service.
- You may have to take the DUI Alcohol or Drug Use Risk Reduction Program. You have 120 days from the date you were convicted to take the program. If you are jailed, you have 90 days from your release date to take the program.
- A clinical evaluation.
- Probation for 12 months minus the days you were jailed.
Third Conviction Penalties
- If you are convicted for a DUI for the third time in 10 years, then you will be charged with a high and aggravated misdemeanor, and:
- You may have to pay a fine that is at least $1,000 but may not be more than $5,000.
- You may have mandatory jail time of at least 120 days, but not more than 12 months. If you are released before 12 months, the balance of the time will be on probation. If you do get probation, you do have to spend at least 15 days in jail.
- You may have at least 30 days of community service.
- You may have to complete the DUI Alcohol or Drug Use Risk Reduction Program. You have 120 days to take the program unless you are in jail. If you are in jail, you have 90 days from your release date to take the program.
- You may have to undergo a clinical evaluation.
- You may get mandatory probation of at least 12 months minus any time you spent in jail.
Fourth Conviction Penalties
- If you are convicted of a fourth DUI within 10 years, you could be charged with a felony, and receive:
- A fine of at least $1,000 but not more than $5,000.
- Jail time of at least a year but not more than five years. The court may suspend, stay or probate all of the jail time except 90 days.
- At least 60 days of community service. However, if you spend at least three years in jail, the court could suspend the community service.
- Mandatory participation in the DUI program and a clinical evaluation as outlined above.
- Mandatory five years probation minus time served.
If you plead nolo contendere, your plea will be looked at as a guilty plea and will count against you when counting the number of convictions over 10 years. And, if you have convictions under federal or local laws, they will also count against you. Finally, if you have DUI convictions in other states, they will also count against you as part of the number of DUI convictions in the past 10 years.
Contact Schnipper Law PC if You Face DUI Charges in Atlanta
If you have been arrested for or charged with a DUI offense, or think you’re about to be, then contact Schnipper Law PC or phone (404) 545-5845 to obtain the services of an experienced Atlanta DUI defense attorney as soon as possible.