Georgia Drugged Driving

In Georgia, a person is guilty of a DUI if he or she is: (1) driving while under the influence of any drug to the extent that it is less safe for the person to drive; OR (2) if a person operates a motor vehicle with any amount of marijuana or a controlled substance present in the person’s body. Ga. Code Ann. § 40-6-391(a) (West 2010).

(1) Driving Under the Influence

A person is guilty of a DUI if that person drives any moving vehicle while under the influence of any drug to the extent that it is less safe for the person to drive. Id. § 40-6-391(a)(2).

Affirmative Defense

The fact that a person is or has been legally entitled to use a drug shall not constitute a defense against this first type of DUI. However, a person shall be guilty of a DUI unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use. Id. § 40-6-391(b).

(2) Driving while there is any amount of controlled substance present in the person’s body

A person is guilty of a DUI if that person drives a vehicle and that person has any amount of controlled substance present in the person’s blood or urine, including the metabolites and derivatives of each or both. Id. § 40-6-391(a)(6).

NOTE: Actual impairment is not an element of this offense. Cannabis metabolites can be detected in a person’s body up to one month after use, thus it is possible to be convicted of this type of DUI weeks after a person last ingested cannabis.

Affirmative Defense

The fact that a person is or has been legally entitled to use a drug shall not constitute a defense against this second type of DUI. However, a person shall be guilty of a DUI unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use. Id. § 40-6-391(b).

Implied Consent

• Any person who operates a motor vehicle in Georgia shall be deemed to have given consent to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug. Id. § 40-5-55. The officer selects which test or tests to be administered. Id. § 40-5-55.
• Refusal by the driver to submit to chemical tests at the time of his arrest shall be admissible in evidence against him in any criminal trial. Ga. Code Ann. 40-6-392(d).
• Refusal to submit to test(s) will result in the suspension of driving privileges, but the driver may request a hearing, in writing, within ten business days of the incident. Id. § 40-5-67.1(g).
• The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. Id. § 40-6-392(a)(3).

Penalties

• First offense – fine of $300-$1,000 (plus fees and assessments which can add 20% to 25%); incarceration of 10 days to 12 months (mandatory minimum of 24 hours); mandatory minimum of 40 hours of community service; probation for 12 months; mandatory participation in a 20-hour risk reduction program ($175 + assessment fee of $75 to be paid by offender). Id. § 40-6-391(c)(1).
• Second offense – Fine of $600-$1,000 (plus fees and assessments which can add 20% to 30%); incarceration of 90 days to 12 months (mandatory minimum of 72 continuous hours); mandatory community service of not less than (30) days; probation of 12 months; mandatory alcohol and drug treatment – repeat offender must participate in a 20-hour Risk Reduction ($175 + assessment fee of $75); license suspension of three-years (no limited driving privileges can be reinstated for 12 months); a photo of offender will be published in local newspaper with the name and address of offender (offender is assessed an additional $25 fee cover the cost publishing); judge may either order an ignition interlock device. Id. § 40-6-391(c)(2).
• Third offense – fine of $1,000 to $5,000 (plus surcharges and assessments, which can add 20% to 30%); incarceration of 120 days to 12 months (mandatory minimum of 15 days); mandated community service of not less than 30 days; probation of 12 months; mandatory participation in alcohol and drug treatment program (fee of $175 plus an assessment fee of $75); license revocation of five-years; a photo of offender will be published in local newspaper with the name and address of offender (offender is assessed an additional $25 fee cover the cost publishing); judge may either order an ignition interlock. Id. § 40-6-391(c)(3).
• Forth and subsequent offenses (since July, 2008) felony – fine ranging from$1000 to $5000, incarceration of not less than one year nor more than five years (mandatoryninety days); offender’s vehicle subject to seizure; at least sixty days of community service; other requirements of a third offense are also applicable. Id. § 40-6-391(c)(4).

NOTE: offender can be convicted and sentenced for multiple counts arising from the same set of operative facts – i.e. driving under the influence of drugs and/or driving with drug metabolites.

Other Penalties & Penalty Enhancers

• DUI with passenger under 14 years of age in the vehicle constitutes the separate offense of endangering a child by driving under the influence of alcohol or drugs. Id. § 40-6-391(l).

Sobriety Checkpoints

Georgia allows law enforcement officials to conduct roadblocks under both the State and Federal Constitution.

• Abnormal or unusual actions taken to avoid a roadblock may give an officer a reasonable suspicion of criminal activity even when the evasive action is not illegal; however, completely normal driving, even if it incidentally evades the roadblock, does not justify a Terry-type stop. Taylor v. State, 249 Ga. App. 733 (2001).

Case Law

State v. Kachwalla, 561 S.E.2d 403 (2002) — as they pertain to DUI, “Less safe to drive” and “rendered incapable of driving safely” are synonymous.

Love v. State, 517 S.E.2d 53 (1999) — A statute which drew an arbitrary distinction concerning the rights of legal and illegal users of marijuana to drive a car was unconstitutional even though it passed the rational relationship test.

Cronan v. State, 511 S.E.2d 899 – Definition of “marijuana” in Motor Vehicles Act expressly includes cannabis metabolites. This allows prosecution for driving under the influence of marijuana based on presence of THC in urine, but a defendant cannot be convicted of possession of marijuana when he tests positive for THC.

Kevinezz v. State, 454 S.E.2d 441, 442 (1995) — “As any amount’ necessarily means any amount greater than zero, we hold that [the statute] provides adequate notice that a person who ingests marijuana or any other drug specified and then drives a motor vehicle does so at his or her own peril. …”

Albert v. State, 511 S.E.2d 244 (1999) — Scientific proof that driver has cannabis in blood or urine is not necessary in order to prosecute for DUI. Defendant can be found guilty based upon fact that he exhibited signs of marijuana a intoxication he smelled of marijuana, had red, glassy eyes, and admitted to having smoked marijuana just before arresting officers stopped him.