Aggressive, Compassionate, & Responsive Criminal Defense
Georgia DUI Drugs
O.C.G.A. § 40-6-391 states that a person shall not drive or be in actual physical control of any moving vehicle while:
- He or she is “under the influence of any drug to the extent that it is less safe for the person to drive,” OR
- While “there is any amount of…a controlled substance…present in the person’s blood or urine…without regard to whether or not any alcohol is present in the person’s breath or blood.”
Often, the State will charge under both the Less Safe provision and the Per Se provision. This is a way for the State to cover its bases under the logic that if it can’t prove the case under one subsection, it might be able to convince a jury of guilt under the other subsection. However, a person can only be convicted and sentenced under one
subsection or the other for the same case, not both.
DUI Drugs – “Less Safe”
Per this code section, there are two ways that the State can prove a DUI Drugs case. The first is by proving that the person is a less safe driver. This requires an analysis of all the facts and circumstances surrounding the arrest, including (but not limited to):
- The person’s driving (for example, if they were speeding, failing to maintain lane, or driving without headlights),
- The person’s mannerisms, speech patterns, or behavior (for example, slurred speech, inability to exit the car properly),
- The person’s performance on Standardized Field Sobriety Testing,
- Statements they may make regarding their use of a controlled substance, and
- Results of a state-administered chemical test, or evidence of the driver’s refusal to participate in such a test.
DUI Drugs – “Per Se”
The second way that the State may obtain a DUI Drugs conviction is by proving that he or she had “any amount” of a controlled substance present in his or her blood. This is proven through a state-administered chemical test of the person’s blood or urine. This is known as DUI Drugs “Per Se.”
Due to several Georgia appellate court cases, this per se provision functionally only applies to illicit drugs. This is because, as the Georgia Court of Appeals pointed out in Keenum v. The State, there “would never be an instance of a legal cocaine user” so as to make [the per se provision] unconstitutional” as applied. Keenum v. The State, 248 Ga.App. 474 (2001). This is in contrast to users of both marijuana and prescription drugs, both of which may end up in a person’s bloodstream without that person breaking the law. As such, the per se subsection has been upheld as constitutional several times and is currently good law.
DUI Drugs Penalties
For the most part, the penalties for DUI Drugs are identical to the penalties for DUI Alcohol. The penalties are dependent upon the number of prior offenses a person has. If you have prior DUI-related offenses, I’d urge you to check out my pages on DUI – Second Offense in 10 Years, DUI – Third Offense in 10 Years, and DUI – Fourth or Subsequent Offense in 10 Years. Below is a quick reference.
Just as in an Alcohol DUI case, there are defenses in Drug DUI cases, even if you took a chemical test. For that reason, you should never just take a plea without speaking to a lawyer. Here are just a few of the possible defenses in a DUI Drugs case.
Defense #1: A Bad Stop
A Georgia law enforcement officer cannot just stop you for no reason, or for an illegal reason. They must have “reasonable, articulable suspicion” that criminal activity was afoot. Usually in DUI cases, the allegation is that the driver committed some sort of driving infraction, like speeding, failing to maintain lane, failing to signal a turn, or even having a broken taillight. Sometimes, though, the officer cannot point to a particular reason that he or she decided to stop a driver, the driver (with the help of his or her Georgia DUI Attorney) can prove that the infraction didn’t occur, or the reason given by the officer is illegal (for example, targeting a person of a particular race or gender). Successfully arguing that the entire stop was bad may be grounds for suppression of everything stemming from the stop, which usually results in the entire case being thrown out.
Defense #2: A Bad Arrest
In order to arrest a person, a Georgia law enforcement officer must have probable cause to believe that that person committed a crime. In DUI cases, officers usually cite the results of the Standardized Field Sobriety Testing as well as the person’s driving, their demeanor and speech patterns, and any statements they make. When probable cause is challenged, the judge must determine whether, given all the facts and circumstances surrounding the arrest, probable cause existed. Probable cause must exist at the moment of the arrest and cannot be developed later. An officer cannot use the results of a state-administered breath test (which occurs much later than the arrest) as evidence that there was probable cause for the earlier arrest.
Because Standardized Field Sobriety Testing features so heavily in the development of probable cause, it can be extremely helpful to have a Georgia DUI Defense Lawyer who understands these tests through and through. In order for these tests to be admissible, the officer must have performed them correctly. If the officer made too many errors in the administration of the tests, the results of the tests may be suppressed from evidence, potentially jeopardizing the State’s case against a person.
Defense #3: No Valid Implied Consent
Upon a person’s arrest for suspected DUI, the arresting officer must read the Implied Consent warning to the driver. This warning informs individuals of their right to refuse testing, and of the potential consequences for their refusal. There are a number of ways in which officers can perform this duty incorrectly, and this may lead to any subsequent
test results being suppressed from evidence.
Why you should always have a Georgia DUI Lawyer for a DUI Drugs case
Even if you believe your case is cut-and-dried, you should never go to court on a DUI Drugs case without consulting a Georgia DUI Drugs Lawyer. There are many defenses in DUI cases, and you deserve a DUI Lawyer with the experience and know-how to examine each piece of evidence and discover whether any of these defenses might work for you. You owe it to yourself. Call me today.
URGENT: If you have been arrested for DUI Drugs in Georgia, you have only 30 days to appeal the administrative suspension of your driver’s license or to install an ignition interlock device on your vehicle. If you fail to act, your license will be suspended. Do not wait until your license is suspended. Know your options. Get in touch today.
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