If a driver is going to get a driving under the influence (DUI) conviction in Georgia – or anywhere else for that matter – they should try very hard to make sure it isn't a felony offense. In the state of Georgia, a DUI is considered a violent crime and stays on a person's criminal record forever. But a felony record has much more serious and lasting repercussions than a misdemeanor record.
Is a conviction for driving under the influence a misdemeanor or a felony in Georgia? It can be either, depending on a number of factors. If you drive regularly in Georgia, it pays to get an overview of the state's DUI laws and what constitutes a felony DUI charge in this state.
Drunk Driving in Georgia
Most people know that a felony is the most serious type of crime. This category of offenses includes all of the most heinous charges like murder, rape, treason, armed robbery and human trafficking. It may appear that driving under the influence of alcohol or drugs doesn't belong in the company of these crimes, but the facts show how deadly this offense can be.
That is, one in every three traffic deaths involves an intoxicated driver. About 30 people are killed every single day in drunk driving incidents in the United States, and 3,241 individuals lost their lives in Georgia drunk driver crashes in the period from 2009 to 2018. This means that when people drive drunk or under the influence of drugs in Georgia, other people will die, which may be why some aggravated DUIs are charged as felonies.
Consequences of Felony Convictions
Most DUIs in Georgia are charged as misdemeanors, including a first, second and third simple DUI offense. But some are charged as felonies, the more serious type of crime. A felony conviction can truly have a negative impact on your life.
First, a felony DUI carries life-altering penalties, including imprisonment in a state penitentiary, rather than in county jail, and a lengthy probation period. A DUI that causes the serious injury or death of another individual can result in a prison term of 15 years for each victim injured or killed.
In addition to prison time, a felony conviction can also result in the loss of important rights. In Georgia, a convicted felon can be denied the right to own firearms or even to vote while in prison or on supervised probation. A felon will also be excluded from certain types of jobs, like in government and education, and they may face challenges when applying for housing, loans or even to some school programs.
Basic Georgia DUI Laws
Georgia laws make it illegal for a person to operate a motor vehicle while under the influence of alcohol or drugs, including marijuana. One way of convicting someone for this driving offense is to offer evidence that establishes that their driving was impaired by the use of alcohol or drugs. This includes law enforcement officer testimony as to how the driver operated the vehicle before the traffic stop and how they behaved after the stop. The results of a field sobriety test might also be included, as well as testimony about any alcohol or drugs found in the car.
Another way to convict a driver of a DUI is through chemical testing. A person with a blood alcohol concentration (BAC) of 0.08 percent or higher is presumed to be under the influence. This is called a "per se" DUI. Once the driver takes a chemical test that shows they exceed the legal limit, no further proof of intoxication is required. The alcohol limit for a commercial driver is 0.04 percent, and for those under the age of 21, the limit is 0.02 percent.
Likewise, Georgia makes it illegal to drive with any amount of marijuana or controlled substances in the person's system. However, the statute also provides that if the individual had the legal right to use the substance, the prosecutor must prove actual impairment to get a DUI conviction.
Georgia's Implied Consent Law
Not every driver is going to be eager to take a chemical test for alcohol or drugs. However, Georgia, like most states, has enacted an implied consent law. This law provides that any person driving in Georgia is deemed to have consented to take a chemical test if arrested for a DUI. Refusal to take a chemical test is considered a civil violation and is subject to administrative penalties.
What exactly is chemical testing? The primary types of testing are blood, breath and urine. Generally breath testing with a breathalyzer is used to discern blood alcohol concentration (BAC), while blood or urine testing is used to determine the type of drugs and the amount of those drugs in a driver's system.
Misdemeanor DUIs in Georgia
A first, second and third DUI are misdemeanors in Georgia. The court determines if a DUI charge is a first or a repeat offense by looking at the person's five-year history of prior DUIs. If there are no DUIs in the past five years on their record, the DUI is a first offense. If there is one prior, the DUI is a second offense, and so forth. However, the courts have some discretion in determining the charge.
Punishment for a misdemeanor DUI includes at least 12 months of combined jail time and probation. A first offender may get 12 months of probation and little or no jail time, but each subsequent offense results in a sentence with a set minimum amount of actual jail time along with probation. Misdemeanor DUI convictions are also punished with fines and license suspension, as well as mandatory attendance at a DUI school and, if appropriate, mandatory attendance at a victim impact program.
Drivers who refuse to take a chemical test are subject to administrative sanctions. This essentially means license suspension by the Georgia Driving Agency. The administrative action is independent of the criminal case and applies whether or not the driver is found guilty of criminal DUI. A subsequent refusal to take a test results in a three-year driver's license revocation. A driver who wants a hearing on the issue of whether they refused the chemical test must request it in writing within a few days of the date of the arrest.
Felony DUIs in Georgia
What circumstances kick a misdemeanor DUI into a felony category? There are several such circumstances, including multiple repeat violations and resulting injury or death to another person:
Fourth DUI in 10 Years: The most common way drivers in Georgia are charged with felony DUI is by getting a fourth DUI violation in 10 years, with the period measured from arrest to arrest. All of these DUIs must be after July 1, 2008, according to the language of the statute. DUIs before that date do not count in the total.
Fourth DUI felonies in Georgia can result in imprisonment in a state penitentiary. The period of incarceration for misdemeanors is limited to a year, but the limit for a felony is not. Anyone found guilty of a fourth DUI can be sentenced to at least one year in prison as well as to a five-year period of probation.
They can also be ordered to pay a fine of $1,000, and their driver’s license could be suspended for up to two years. The criminal court judge can also suspend a portion of the driver's fine if they agree to enter a drug or alcohol treatment program that has been approved by the court. In addition, the driver will have to complete 480 hours of community service.
DUI Child Endangerment: It is a felony in some states, like Arizona, for someone to drive under the influence with a child passenger under 14 in the vehicle. Driving under the influence with a child in the car is considered child endangerment, but in Georgia it is not, in and of itself, a felony. Rather, it is a separate offense called DUI child endangerment that does not merge into the underlying DUI offense.
The driver in a case of DUI child endangerment will be charged with both a DUI, for drunk driving, and a DUI child endangerment offense for each child in the car. If the driver has a car full of children, the number of DUI offenses rises quickly, and the one stop can cause a driver to have the four DUIs necessary for a felony DUI.
School Bus Drivers: A school bus driver who is caught driving under the influence is charged with a felony DUI, even if there are no children aboard the bus at the time. This is true even if it is the bus driver's first DUI offense ever. Georgia holds school bus drivers to a higher standard given the important role they play in safeguarding children.
Evading Police: If a DUI driver attempts to evade the police, it is a felony in Georgia.
Causing Serious Injury or Harm to Another
Causing Serious Harm to Another: It is also a felony DUI offense if the driver under the influence causes an accident that results in serious injury to another individual. This could be disfigurement, brain damage or loss of a body part. There is no all-inclusive list in the statutes that covers every injury that will be treated as "serious" for the purposes of this law. This offense is termed DUI Serious Injury by Vehicle and it is a felony for which the driver could face from one to 15 years in prison.
Causing Death to Another: What if the person dies of their injuries after a DUI vehicle crash? If a person is killed by a driver under the influence, that driver will be charged with a felony called DUI Vehicular Homicide, or DUI Homicide by Vehicle. A conviction for this DUI felony will be punished by between three and 15 years in state prison. It is an additional felony if an impaired driver causes a person's death and then leaves the scene of the accident.
Habitual Violators: When a driver has accrued three DUIs in Georgia within a five-year period, they are deemed to be a Habitual Violator. Technically, this violation is called Violation of the Georgia Driver’s License Act. The person's license is suspended for a period of five years, but it is possible to apply for a provisional license after two years.
If a driver is deemed a Habitual Violator and, within five years, is arrested again for a DUI, they are charged with a felony. The arrest for the DUI may be the person's fourth DUI in Georgia, which is, in and of itself, a felony. The punishments for these offenses can be made to run consecutively, sentencing the driver to more than five years in prison.
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.