Return to Criminal Law FAQs
What is the legal blood-alcohol (BAC) limit in Georgia?
For an adult (over 21) not operating under a Commercial Driver's License (CDL), the legal blood-alcohol (BAC) limit is 0.08. This is the equivalent of only about four (4) 8 oz. glasses of beer, or two (2) to three (3) glasses of wine or mixed drinks.
Is it possible to be charged with DUI without having my blood-alcohol (BAC) limit above 0.08 or 0.02 (minors)?
Yes. Georgia has a provision for which one can also be found guilty of DUI for being "less safe to drive." A finding of "less safe to drive" could be based on evidence such as an erratic driving pattern, being responsible for a wreck, being obviously drunk, or refusing to take a blood-alcohol test. Generally speaking, however, if you are over 21, and your BAC is less than 0.08, the prosecuting attorney will probably be willing to work with the individual (or his attorney) to have the charge reduced.
Is a Driving Under the Influence (DUI) charge a felony?
Yes and no. A simple DUI charge, with no prior DUI convictions in the past 10 years, is only a misdemeanor and treated as a "first" DUI for all penalties. However, any more than three DUI convictions are considered felonies.
For a second offence within 5 years, one could face jail time, probation, community service, ignition interlock device, and tag relinquishment, but it is still not a felony. If there is a third DUI within 5 years of the first, then one is still not guilty of a felony, but subject to stiff fines and jail time. If one is convicted of a fourth DUI within 5 years of the first, then he or she will be guilty of a felony and face between one and five years in prison, in addition to a fine of up to $5,000.
How can a DUI conviction affect me?
Being convicted for DUI can have wide ranging effects on your life, both personally and professionally. Not only does the financial strain of paying fines, lawyer's fees, and reinstatement costs exist, but it also impacts the ability to obtain jobs or pursue professional endeavors. For example, sitting for any state's bar exam, nursing board, or insurance certification examination could potentially be jeopardized by a DUI conviction.
Unfortunately, there is no way to "soften" the blow of a DUI conviction that might be available for other types of crimes. A plea of "nolo contender" or "no contest" might be prudent in a civil context, if an individual is being sued for being DUI in causing a wreck, however, it is still a conviction under the law. And, types of "avoidance" sentencing options, such as "first offender" or "conditional discharge" are not available for a person convicted of DUI.
Presumably, this is the ultimate reason to hire an attorney ... to try and avoid a conviction for DUI!
What is the BAC limit for a Commercial Driver's License?
When one is actually operating a commercial vehicle, the legal blood alcohol level for DUI is lower than for when you are operating a non-commercial vehicle. In Georgia, a BAC higher than .04 is grounds for a DUI charge, as opposed to the 0.08 limit for non-commercial drivers. Many professional drivers think that by refusing a BAC test at the time of your DUI arrest, you can avoid the loss of your CDL license. However, in refusing to take any tests during or after a DUI arrest you automatically forfeit your CDL license for one year in most states.
There is a clear distinction, however, between merely having a CDL license while operating a non-commercial vehicle versus operating a commercial vehicle. If one who possesses a commercial license is pulled over while operating a non-commercial vehicle, the BAC and related field test results are the same as if the driver was not a commercial license-holding individual. Of course, if you lose your non-commercial privileges, you also lose your CDL privileges. This puts the owners of a CDL license in a special class of suspects who almost always, need to hire an attorney if charged with DUI, even when the evidence is flimsy – the consequences of a conviction are potentially too severe to do otherwise!
Are DUI laws different for Drugs?
The term DUI means "driving under the influence." "The influence" encompasses not only alcohol, but all types of drugs that impair your ability to drive. Please note that, while alcohol and illegal drugs are those most associated with DUI, an over-the-counter drug or legally prescribed drug may also land you in jail for DUI. You can be charged with DUI (less safe to drive) from alcohol, marijuana, illegal drugs (cocaine, marijuana, etc.), or prescriptions drugs (Xanax, Valium, Percocet, etc.). The State has to prove that whatever substance you were alleged to have consumed affected your ability to drive to the extent you were "less safe to drive."
Is there a different legal blood-alcohol (BAC) limit for minors (under 21)?
Yes. If you are under twenty-one (21), the legal BAC limit is only 0.02, which is the equivalent of just about a single drink.
What will happen to my license if I receive DUI and I am under 21?
If under 21, things change in terms of driving privileges, as one cannot obtain "work permits." Therefore, the license is suspended completely.
What are the ways that a blood-alcohol (BAC) limit can be tested?
The mechanism for requesting a chemical test of a bodily fluid is called "Implied Consent." This is a statutory scheme where the right to drive and possess a driver's license is linked to the promise one makes that he or she will submit a bodily fluid for testing, if asked by a law enforcement officer. The officer must possess "probable cause" to suspect and individual to be driving under the influence of some substance. Implied consent is read to the charged individual after he is placed under arrest. The officer will inform the individual that he will be asked to submit a breath, blood, or urine sample for analysis, at the discretion of the officer. Sometimes, the officer will actually request to collect more than one (1) type of sample.
If the individual charged agrees, he has a right to have the blood tested, at his expense (most people miss this). If the individual refuses, however, he will be subject to having his license suspended for 12 months.
In a traffic stop, the BAC may or may not be measured on the side of the road with a hand-held device called an "AlcoSensor." This result is not admissible and just a tool to assist in the verification process that alcohol has been consumed.
After the roadside check (and possibly being asked to perform field sobriety tests), one will probably be asked to submit a breath, blood, or urine sample by the arresting officer. If asked to submit to a breath test, one would be asked to blow into an instrument called an "Intoxilyzer," which would measure the BAC. In Georgia, if within three hours of driving the charged individual blows into the Intoxilyzer and a jury determines the BAC results are above 0.08, the individual probably will be found guilty.
What should you do when pulled over for a DUI?
First, under the 5th Amendment, you have the right to "remain silent." This means that you cannot be forced to answer any of the officer's questions and your "silence" cannot be used against you – same thing with the "Field Sobriety Tests" (FST). In order to exercise your 5th Amendment rights, you can either remain completely silent or you can tell the officer that you wish to assert your constitutional right against self-incrimination. Once you DO say or do something, however, that CAN be used against you and you do not have a right to be advised of your 5th Amendment rights prior to questioning or asking for you to submit to FSTs.
Next, do not get out of the car unless the officer orders you to do so. The officer has the authority to order you to exit the vehicle, but getting out before he asks is unnecessary and potentially dangerous. It puts the officer on the defensive because he is does not know whether you are armed, about to flee, or just getting out to stretch. Bad idea!
Finally, you must comply with any reasonable orders that the officer may give, such as to exit the vehicle. Failure to do so may result in more fines and charges and, again, create the possibility the officer will overreact. "Reasonable requests" does not include the FSTs or even the hand-held AlcoSensor – you may refuse any or all of these, at your discretion.
I guess, the bottom line is that you do what is best for you. This is a case-by-case decision. In many cases, if you feel that you are definitely NOT DUI, you should cooperate fully, since you are more likely to be arrested if you fail to comply with the officer's requests. If you are uncertain, though, why hand the officer potentially damaging evidence that cannot be used against you?
Do I have to complete a field sobriety test (FST) ?
No. Under Georgia law, you cannot be forced to take a field sobriety test, nor can the refusal to perform one be used against you at trial. A field sobriety "test"" is designed to test your coordination and balance; however, the "test" is full of different acts that would be difficult for even many sober people to complete. In other words, they really don't have much to do with measuring your ability to safely operate a motor vehicle. Often, if you "fail" a test, the reason you did so may have some other causation (you are tired, you have a bum leg, your leg is asleep, you are excited, you are just confused) than what substance might, or might not, be affecting your ability to safely operate a motor vehicle.
These sobriety tests are really extremely subjective and each officer uses "clues" to gather more "proof" of the existence of a DUI; rarely, is the officer really using them to screen you to fairly determine if you are DUI or not. Since the test is subjectively based on each officer, the test can be manipulated to show what the officer wants it to show. And, an improperly administered, explained, or understood FST can result in "bad" evidence that can result in a conviction.
Do I have to answer the officer's questions when he asks, "Have you been drinking?"
No, you do not have to answer the question. You have a 5th Amendment protection against self-incrimination and you have the right to "remain silent." In order to assert this right, you may either remain completely silent and say nothing or tell the officer that you wish to use your 5th amendment rights against self-incrimination and then remain silent.
What happens if I don't answer the officer's questions?
It depends. You are within your rights to refuse to participate in the field sobriety tests and remain silent, under the 5th Amendment, but you must respectfully decline. If you are disrespectful towards the officer, the way do it, the consequences may extend beyond a DUI charge. For example, appearing unruly might, in and of itself, be evidence of DUI; and, if you are threatening, you can be charged with Obstruction, as a separate crime. Furthermore, when you go to court, you want the officer say you were respectful – so do so!
Can I choose to have my blood-alcohol (BAC) analyzed through a blood sample?
The officer chooses the sample that is requested for analysis and one cannot demand the officer choose a specific type of sample or method of testing. Once the charged individual has complied with the officer's request, he has the right to request an immediate blood test, paid for at the expense of the driver; please note, if your request is not granted, your arrest can be voided.
What is the potential punishment for a DUI offense?
Conviction from a DUI offense can result in impressive fines, increased insurance rates, and can wreak havoc on a driver's license. The punishment for a DUI becomes more severe for multiple DUI violations within a five (5) year period (Habitual Violators). For the 1st DUI offense (with no injuries), the maximum penalty is 12 months in jail and a fine of $1000; the fines escalate to $5,000 for a 3rd "misdemeanor" DUI conviction.
If the DUI is alleged to have resulted in serious bodily injury (DUI – Serious Bodily Injury), or death (Vehicular Homicide) then the fines become even more severe. For example, Vehicular Homicide is when a person causes the death of another because they were DUI. If convicted, one could be facing a sentence of imprisonment for "not less than three years no more than 15 years." O.C.G.A. 40-6-393. DUI – Serious Bodily injury, as one may imagine, is when an individual is DUI and causes serious bodily injury to another person. If convicted of this crime, one will "be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years" O.C.G.A. 40-6-394
What is going to happen to my license and can I get a work permit?
The effect on a license, if found guilty of DUI, varies. Circumstances to consider include previous convictions, damage caused, injuries incurred, etc. For example, if this is the first offense in the past five (5) years, the license may be suspended for a year, although, the judge may give a work permit, good for 120 days. If a work permit is awarded, on the 121st date from the conviction, the convicted individual is eligible to have his license reinstated, barring the attendance and successful completion of an approved DUI class. Therefore, for a 1st DUI, the effect on one's ability to drive is fairly minimal. On the 121st day, the work permit is no longer valid and driving privileges are suspended until the license is reinstated. If reinstatement is applied for through email, there is a $200.00 fee that is required. If done in person, the fee is $210.00 and addressed at the DDS offices.
Does the administrative hearing determine whether I am guilty or innocent?
No. An administrative hearing has nothing to do with one's guilt or innocence. This hearing strictly determines the status of your Georgia driving privileges. The administrative judge will look at the evidence to determine whether suspension is warranted. Factors that the administrative judge might consider include:
Your attorney will advise you, if you should insist on a hearing or if you should try to avoid one. One possibility is that you would agree to plead guilty when your case went to court, in exchange for the officer agreeing to withdraw the affidavit of suspension. Sometimes, just this, will be a good result for your attorney to obtain for you.
How long is the administrative driving suspension?
The suspension is twelve (12) months long. However, driving privileges can be suspended for a longer period of time, depending on the number of prior DUI convictions or the type of DUI to which one might plead or be found guilty.
Technically, the suspension from a conviction is also "administrative," in that the judge is bound by the terms of the law, and DDS determines the length of the suspension. Thus, for example, if you plead guilty to a 1st DUI in 5 years, but you also plead guilty to two counts of Endangering a Child by DUI, for having your 2 children in the car with you while driving DUI, DDS will treat this as 3 DUI convictions in 5 years, for the purpose of your driving privileges. So, be careful, and this is another reason to hire an attorney!
One option to reduce the impact of an administrative suspension is to ask the arresting officer to "withdraw" the affidavit for suspension, in exchange for your promise to plead guilty on the charges, when the case goes to court. This is something your attorney can arrange for you, if it makes sense for you; it can be done even "after the fact" or if you missed your window to request an administrative hearing.
What will happen to my license if I have a prior DUI convictioin?
If charged with and convicted of a DUI fewer than 5 years prior, one's license can be suspended for eighteen (18) months, with 120 days of "hard" suspension (no driving at all), and eight (8) months of qualified suspension (using an ignition-interlock device). Additional penalties can be put into place for individuals with multiple DUI convictions or habitual violators.
Depending on the situation, one might be able to apply for a "hardship" license. This option is not available under O.C.G.A. 40-5-58 if one has a prior conviction within 5 years and may be denied if one has a conviction within the last two years. In order to obtain a hardship license, one needs to file an application form with the DDS. No administrative hearing is required. If the applicant can show that the refusal to issue the permit would result in "extreme hardship" then the DDS must give the permit. "Extreme hardship" means that one cannot reasonably obtain other transportation, and therefore, the applicant would be prohibited from: (1) Going to his or her place of employment or performing the normal duties of his or her occupation; (2) Receiving scheduled medical care or obtaining prescription drugs; (3) Attending a college or school at which he or she is regularly enrolled as a student; (4) Attending regularly scheduled sessions or meetings of support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner; or (5) Attending under court order any driver education or improvement school or alcohol or drug program or course approved by the court which entered the judgment of conviction resulting in suspension of his or her driver's license or by the commissioner. O.C.G.A. 40-5-64(c) (effective till Jan. 2013)
What is an ignition-interlock device?
An ignition-interlock device is a mechanism that detects if there is any alcohol on one's breath (which begs the question about why you would have to use one, if your DUI priors were for something other than alcohol). The device is installed on a motor vehicle's dashboard. Before the vehicle's motor can be started, the driver must first exhale into the device. If the breath-alcohol concentration is greater than the programmed blood alcohol concentration, the device will prevent the engine from being started.
Can I fight my license being suspended?
Yes, until and if one is actually convicted. Technically, the suspensions are not ordered by a judge (although, a judge would have the right to order more punitive driving restrictions than for what the law automatically provides), but they are a function of administrative law and entered by the Georgia Department of Driver Services (DDS) in Atlanta.
The reality is that a license can be suspended for one (1) year or more by the mere arrest for DUI, if the arrested individual fails to properly request, in writing, an administrative hearing within ten (10) business days of the arrest for DUI. This written request must be sent to DDS, at which point a hearing may or may not be scheduled with an administrative law judge. There are no exceptions made for driving to work, taking children to school, etc. If you do not take the field sobriety tests or test above the legal limit, it is absolutely crucial that you file the request within the ten (10) days. A hearing will NOT be set, if the arresting officer decides not to send an affidavit to DDS requesting that your license be suspended because of the arrest. Unfortunately, you won't know this during the 10-day window to request the administrative hearing; this means you want to make your request, regardless.
Will I be able to receive a work permit if the judge decides to administratively suspend my driver's license?
This depends. If the judge decides to administratively suspend a driver's license, based on a refusal to submit to DUI test, then one will be unable to receive a work permit and be ineligible for early reinstatement for one year. If the judge suspends the license for any other purpose, one will be able to obtain a work permit after 30 days (but, be careful, as this also would take away 30 days of the 120-day period of a work permit, if convicted). If your suspension is for anything other than a refusal, after 30 days, the individual can have his license reinstated, barring the successful completion of an approved DUI class. BUT, be careful, as that certificate of completion has to be filed with the court within 12 months or it will expire and you will have to attend again, if you need to use the certificate to have your driving privileges reinstated after a conviction.
Is there a cost to obtain an administrative hearing in the state of Georgia?
There is a $150.00 fee that comes with requesting this hearing. The smart thing to do is to hire an attorney to help you with sending in this request, to make sure that it is done correctly.
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