DUI Per Se in Georgia
In, Georgia, drivers can face two different types of DUI charges: DUI Less Safe and DUI Per Se. DUI per se is the type of law that most people associate with DUI charges. Per se means “by or in itself.” Therefore, a DUI per se is when a person has a blood alcohol concentration of .08 or higher while driving a motor vehicle. If you have been charged with DUI per se in Georgia, you need legal representation. It is critical that you act fast because you only have 30 days to save your driving privileges. Call now and speak to one of our many DUI lawyers in Georgia.
Georgia Law
According to O.C.G.A §40-6-391(a)(5), A person shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is .08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.
In Georgia, it is illegal to operate a motor vehicle with a blood alcohol concentration of .08 or greater. If a person is found to have a blood alcohol concentration of .08 or higher, then the person should be found guilty of DUI per se because their BAC was over the legal limit. Therefore, impaired driving ability is not an element of driving under the influence per se. Dodds v. State, 288 Ga. App. 231, (2007). A conviction for driving under the influence (DUI) per se does not require proof that it was less safe for the defendant to drive; rather, an individual is guilty of DUI-per se where, within three hours after operating a motor vehicle, tests show that his blood alcohol concentration is 0.08 grams or more. Yeong Silk Oh v. State, 345 GA. App. 729, (2018).
It is important to understand that the BAC limit for minors and commercial vehicle drivers is significantly lower. For drivers under 21, it is .02 grams. For truck drivers, bus drivers, and others that drive with a Commercial Driver's License (CDL), the limit is .04.
Georgia DUI Per Se Case Law
In the case of State v. Rish, the Court agreed that the officer did have probable cause to arrest the suspect for DUI per se. The evidence presented detailed that the accused admitted to having 3-4 drinks before driving and that he had consumed the drinks 30 minutes before the traffic stop. However, the officer testified that the accused showed no signs of impairment. The accused took two breath tests that resulted in a BAC of greater than .08 grams. Therefore, even though he did not appear to be impaired, the suspect was convicted of DUI per se. 295 Ga. App. 815, (2009).
Georgia DUI Per Se Defenses
In a Georgia DUI per se case, the prosecution must show that the driver's BAC was .08 or above and that they were driving a motor vehicle. While this may seem like an open and close case, the driver has many Georgia criminal defenses available!
First, even if you submitted to a chemical test and were charged with a DUI per se, that does not automatically deem you guilty of a DUI. Many requirements must have been complied with in order for your chemical test to be valid. One of those factors is whether the officer informed you of implied consent. Implied consent means that by driving on Georgia roads, you are implicitly giving law enforcement officials permission to test your blood, breath, or urine if you are arrested for DUI. However, you must be informed that you may refuse a test and that you have the right to request a different test be used and who administers it. This test will be at your own expense. Additionally, the refusal will lead to your driver's license being suspended, and it can be used against you in court.
Another argument is to attach the breathalyzer machine to see whether it was in compliance. Police officers are required to have the device calibrated, log activity, and make sure it is regularly maintained. If your Georgia DUI Lawyer can demonstrate that the machine was not current on its maintenance, the results can be challenged. Therefore, even if you tested above the limit, those results may be inadmissible.
Medical Necessity or emergency can also be defenses to a DUI per se case. Let's say that you and your husband are out to dinner and you have had a few drinks because he was going to drive home. He severely cuts himself, and you need to drive him to the hospital. If it were necessary for you to drive him to the hospital, you would have an affirmative defense if charged with a DUI while on the way to the hospital.
Penalties for a DUI Per Se Conviction in Georgia
A person convicted of DUI per se for a first or second time will be guilty of a misdemeanor. The punishment for a first conviction will include fines between $300 and $1,000, jail time with a maximum of 12 months, at least 40 hours of community service, completion of a drug or alcohol risk reduction program, and probation. A second conviction for a DUI will have heightened penalties. The fine increases to between $600-$1,000, at least 30 days of community service, increased jail time, and probation.
A third conviction in ten years of DUI per se in Georgia will be considered a misdemeanor of a high and aggravated nature. The fine will be between $1,000 and $5,000. The minimum jail time is 120 days with a maximum of 12 months.
No Matter the Situation, Call Us Today
If you have been charged with DUI per se, do not make the mistake of thinking there are no defenses available to you. There are always arguments that can apply to your case! Call today and speak with one of our Georgia DUI Per Se Attorneys and we will discuss your situation in detail. Our DUI per se lawyers in Georgia have over 50 combined years of experience. Call now because your future depends on it!
