Many people assume that a blood alcohol concentration (BAC) of .08 is like the border between Georgia and Alabama. This level is the absolute dividing line between drunk and sober. True, .08 is the per se limit in Georgia. However, it’s not the only way a person can be charged with, or even convicted of, DUI. As is normally the case, the law is more complex, and drivers can be found guilty of DUI even if their BAC is under the legal limit.
The good news is that the conviction rate is much lower in sub-.08 matters. So, it’s much easier for a Marietta criminal defense lawyer to successfully resolve these cases. This successful resolution could be a complete dismissal of charges, a not-guilty verdict at trial, or a plea to a lesser-included offense. DUI is arguably the most serious misdemeanor in Georgia, when considering the direct and collateral consequences. Only a Marietta criminal defense lawyer can reduce or eliminate these consequences.
DUI Charges in Georgia
Georgia DUI law is much like the law in other jurisdictions. Prosecutors may take one of two angles when they file charges.
- Per Se DUI (BAC ≥ .08): Over 80 percent of suspects take, and fail, chemical tests. In these cases, prosecutors need no additional evidence of impairment. The number alone is enough to establish guilt.
- Impairment DUI (Score Irrelevant): Regardless of chemical level, it’s illegal to drive while impaired, under the influence, or if alcohol or another substance appreciably, materially, or noticeably affects the ability to drive.
In these cases, the government does not rely solely on the BAC. Instead, it looks at a combination of the defendant’s driving ability, demeanor, physical symptoms, mental and physical functions (mostly as determined by the field sobriety tests), and officer observations.
Impairment DUIs
Driving ability, or the lack thereof, almost always prompts traffic stops and, if justified, DUI investigations. Hard infractions, such as weaving, speeding, slowing (driving well below the posted speed limit), and running a red light, almost always hold up in court. More subjective driving misbehavior, like nearly causing a collision, could hold up in court as well.
At this time, we should touch on the “comply now, complain later” approach. Drivers shouldn’t try to argue their way out of a DUI. Let a Marietta criminal defense lawyer handle the arguing later. Instead, to the greatest extent possible, comply with the officer’s requests. We all know that contentious police stops often end badly for everyone.
Next, when officers approach drivers, they usually look for behavioral indications of impairment.
Alcohol and other substances often lead to erratic or unusual behavior. Impaired individuals may be cooperative one moment and combative the next. They also act, for lack of a better phrase, like they’re “on something.” Admissions to drinking, like “I only had a couple drinks,” “I’m a little buzzed,” or “I probably shouldn’t be driving,” are especially damning.
Physical symptoms are the next, and aside from admissions of drinking, most significant indicators of possible impairment. These symptoms include:
- Bloodshot or watery eyes,
- Slurred speech,
- Odor of alcohol,
- Unsteady balance, and
- Confused or slow responses.
To rebut this key evidence, a Marietta criminal defense lawyer usually points out that such evidence, at best, only proves consumption. Unfortunately, at this stage, officers must only establish probable cause. That’s a much lower standard than the standard of evidence at trial. Therefore, a little evidence goes a long way.
Poor driving ability, unusual behavior, and physical symptoms allow officers to proceed to the next step, which is the Field Sobriety Tests. These tests, and some flaws associated with these tests, are:
- Horizontal Gaze Nystagmus: Under controlled conditions, the follow-my-finger or follow-the-light DUI eye test accurately detects nystagmus (involuntary pupil movements at certain viewing angles). But roadside HGN tests are far from laboratory tests. Additionally, alcohol is not the only cause, or even the leading cause, of eye nystagmus.
- One-Leg Stand: The standing-on-one-foot test is a divided attention test that measures the defendant’s mental acuity and physical dexterity. Many defendants are mentally fatigued by this time. Furthermore, most defendants know they’re in trouble at this point, and they’re thinking about what comes next. Physically, it’s almost impossible for mobility-impaired people to stand on one leg.
- Heel to Toe Walk: Roughly the same analysis applies to the walking-a-straight-line test. Prosecutors must prove that alcohol or a substance, not fatigue or anything else, caused impairment. Moreover, most people can’t walk a straight line heel to toe unless they’re wearing athletic shoes. On a side note, it’s almost impossible to walk an imaginary line heel to toe.
Performance on these tests is subjective, and officers often claim that drivers “failed” even if they seem to do reasonably well. Fortunately, jurors also have a pass/fail opinion, and their opinion is the only one that counts.
Non-Alcohol and Combination DUIs
Prosecutors can also obtain convictions if a toxic vapor (glue, aerosol, etc.), controlled substance (marijuana, Oxycontin, etc.), by itself or combined with alcohol , caused impairment. If Jeff smoked a joint and drank a beer, his BAC level would be nowhere near .08. But, due to the combination, he could be legally impaired.
Drug use is fairly easy to establish, if the defendant submits a blood sample. Drug impairment is different. Let’s go back to marijuana. A joint hits most people like a ton of bricks. Then, the effect quickly fades. So, a person could test positive for marijuana yet not be impaired.
Blood tests are rare in DUI cases. Therefore, prosecutors normally rely on DRE (drug recognition expert) testimony. DREs aren’t “experts.” DREs are police officers who had some additional training, normally about eight or ten hours. This “expert” testimony is shaky, at best. A Marietta criminal defense lawyer often partners with a degreed professional, like a chemist or biologist, to refute it.
Note that, in many states, Ny-Quill and other over-the-counter medications could cause legal impairment. But not in Georgia.
Legal Limit Below .08
The .08 limit doesn’t apply to underage and commercial drivers. The law holds these drivers to a stricter standard.
Georgia, like most other states, has a zero-tolerance minor DUI law. A trace amount of alcohol, whether or not that alcohol is impairing, is illegal.
The commercial driver BAC limit is .04. A commercial driver is not only an Uber driver or truck driver, but also an unpaid church volunteer or a paid errand-runner.
A Breathalyzer result under .08 is not a get-out-of-jail-free card. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and after-hours visits are available.
