It is illegal to drive in the state of Georgia while under the influence of alcohol or drugs. The statutes provide for both "per se" DUIs – based strictly on the alcohol concentration in the driver's blood – and "impairment" DUIs, which are based on other evidence that the driver was under the influence of alcohol or drugs.
Anyone arrested for driving under the influence (DUI) in Georgia faces both administrative and criminal sanctions. And, because the state of Georgia does not allow record restriction or expungement of any DUI offense, anyone convicted ends up with a permanent criminal record. It's important for drivers in Georgia to understand the parameters of the drunk driving offense.
Driving Under the Influence in Georgia
Every state has laws making it a crime to drive while under the influence of alcohol and/or drugs. However, the provisions of the laws vary from state to state. Georgia's laws regarding driving under the influence include both general impairment DUIs and per se DUIs.
The former requires that the prosecutor introduce evidence of how the driver looked and acted to prove beyond a reasonable doubt that they were under the influence of alcohol or drugs. This can be police testimony about erratic driving and testimony or a video of their performance on a roadside sobriety check. It can also include the way the driver and/or the motor vehicle smelled and anything that the driver told the officers.
A driver is considered "under the influence" if their driving is impaired by the use of alcohol and/or drugs. Drugs, in this context, include both legal drugs and illegal drugs.
Georgia's Per Se DUIs
Per se DUIs do not require this kind of evidence. They are DUIs based solely on chemical testing. In Georgia, if the driver has a blood alcohol concentration (BAC) of 0.08 percent or greater, they are violating the DUI statute. If the driver has a commercial driver's license, the legal limit drops to 0.04 percent, and for those under 21, the cutoff is 0.02 percent.
Anyone who exceeds the legal limit as established by a breath, blood or urine tests, has committed a per se DUI. "Per se" means "in and of itself," so no other evidence of intoxication or impairment is required.
The statute also includes a per se DUI for drug impairment, including marijuana. It provides that it is a DUI violation if an individual drives with any detectable amount of marijuana or other controlled substance in their blood. However, a subsequent section of the statute clarifies that if the person is legally entitled to use the marijuana or controlled substance, then it is not a per se DUI, but requires proof of actual impairment.
Implied Consent Law and Chemical Testing
The Georgia legislature understood that, given the per se DUIs authorized in the state, drivers stopped for being under the influence may be reluctant to take a chemical test to establish the presence and amount of alcohol and/or drugs in their system. It is much harder for a prosecutor to prove impairment than simply to introduce the results of chemical tests.
For that reason, the state enacted the Implied Consent Law. This law provides that anyone driving in Georgia is deemed to have consented to taking a chemical test if they are stopped by law enforcement for driving under the influence. While violation of this law does not carry any jail time or criminal penalties, it does carry a powerful sanction: Anyone refusing the test is subject to an automatic driver's license suspension of one year by the Georgia Department of Driver Services (DDS).
Administrative Penalties for DUIs
Violations of the statute prohibiting driving under the influence in Georgia carry both administrative and criminal penalties. The two are independent. For example, if a driver refuses to take a breathalyzer test when stopped for a DUI, their driver's license is automatically suspended for one year.
This license revocation does not depend on whether or not the driver is convicted of a DUI charge in criminal court. Even if the prosecutor decides not to charge the driver, or the driver is charged and found innocent, the administrative sanctions still apply.
Although the administrative sanctions are automatic, the driver has a window of time to make a written request for a hearing on the matter. The request must be made within 10 days of the arrest. If a driver does seek a hearing, the issues they can argue are very few and directly related to the issue of whether they refused the test. A driver who does not timely request a hearing loses their driver's license even before their criminal case goes to court.
Criminal Penalties for Georgia DUI
A driver convicted of driving under the influence in Georgia will face criminal penalties that include the possibility of jail or prison time, fines, loss of driving privileges and mandatory drug and alcohol classes. The penalties imposed depend on a number of factors including the individual's driving history and the circumstances of the DUI. If there are certain, "aggravating" circumstances present, the sanctions can be much more severe.
Prior offenses are subject to a look-back period of 10 years. That is, the court looks at the driver's record for the 10 years prior to the current arrest. If the person had no convictions in that 10-year period, the DUI is treated as a first offense with the least severe penalties. For example, if the person had one prior DUI in that period, the current arrest is a second offense; two priors in that period, and the current offense is a third DUI; three priors and the current offense is a fourth DUI.
Subsequent DUIs and Aggravating Factors
First, second and third DUIs are misdemeanors, the least serious type of crime. The maximum jail time is one year for a misdemeanor. A fourth DUI offense is a felony carrying a prison sentence. Time is not limited to one year, and the sentence is served in state prison, not in county jail.
Circumstances that are considered aggravating will result in more serious penalties and include having a BAC of 0.15 or above; the presence of a passenger in the vehicle under 14 years old; evading a police officer; or an accident that resulted in the injury or death of another person.
Typical DUI Penalties in Georgia
The court has latitude in sentencing the driver in a DUI case. However, there are typical penalties that generally apply to first, second, third and fourth offenses:
- First offense: The driver will usually be given 10 days to 12 months in jail; ordered to pay a fine of between $300 and $1,000; and serve 20 to 40 hours of community service. Their license can be suspended for up to a year.
- Second offense: Typically, the penalties are more severe if the motorist has prior DUI convictions. Jail time is between 90 days and 12 months, and the fine can run from $600 to $1,000. License suspension can be for three years. Community service time is at least 30 days.
- Third offense: Jail time of 120 days to one year; fine between $1,000 and $5,000; and 30 days or more of community service. License suspension is for five years.
- Fourth offense: Felony charge with more serious penalties, including a minimum of one year in prison and a five-year license suspension period. The fine will be at least $5,000.
Note that the total sentence for any DUI cannot be less than one year. Some of this time will be spent in jail and some on supervised probation. The court will place all drivers convicted of a DUI on probation for at least 12 months, minus the time served in jail. Before starting probation, a DUI offender must serve a minimum sentence of incarceration in Georgia.
With a first DUI, you’ll likely spend most of that time on probation. That is, a first-time offender must serve at least 24 hours in jail and the rest of the year on probation; a second-time offender must serve 72 hours in jail; and a third-time offender must serve 15 days in jail. All must attend a DUI alcohol and drug clinical evaluation and complete any recommended treatment program. Subsequent DUI offenders must also complete a DUI alcohol or drug use risk reduction program.
Felony DUI Penalties
Most DUIs in Georgia are charged as misdemeanors, the lesser type of crime. But some are charged as felonies. In fact, there are at least six different ways a DUI can end up as a felony. The first, as mentioned, is a fourth DUI conviction within 10 years. This felony carries one to five years in state prison.
Another type of DUI that will be charged as a felony is when the drunk driver causes an accident that results in the death of another person. This will be charged as a first-degree vehicular homicide felony DUI. A conviction on this charge can result in a prison sentence of three to 15 years for each death.
Other Factors for Felony DUI
If the accident causes serious bodily injury to another person, it is a DUI felony called first-degree serious injury by vehicle, which is a felony even if the person suffering the injury was a passenger in the drunk driver's vehicle. This will result in a sentence of between two and 15 years in prison.
If the person getting a DUI is operating a school bus at the time of the arrest, it is charged as a felony regardless of whether there are any students aboard at the time. This is true even if it is the driver's first DUI offense. Georgia sets higher standards for drivers operating school buses and for those who have a commercial vehicle driver’s license.
Anyone who has had three DUI convictions within five years in Georgia is declared a habitual violator. If a habitual offender is arrested for a DUI within five years of getting habitual offender status, the DUI is charged as a felony. Punishment includes between one and five years in state prison and a fine of up to $5,000.
DUI with a Child in the Car
Finally, driving under the influence with a child in the car can also constitute a felony charge of DUI child endangerment. Georgia law provides that a driver charged with DUI while carrying a child under 14 years of age as a passenger will also be charged with DUI child endangerment.
The child endangerment charge does not merge with the underlying offense of DUI, but is counted as a separate felony offense. Finally, if a driver who is under the influence of alcohol and/or drugs tries to evade a police officer, they will be charged with a felony. This is a also a separate charge from the DUI itself.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.