Can you be convicted of DUI if the results of a blood or urine test are positive for a controlled substance that you are not prescribed, even if the drug does not impair your ability to drive?

OCGA § 40-6-391(a)(2) is a subsection of Georgia's DUI law that makes it illegal to drive after ingesting any controlled substance if that substance makes you a less safe driver.  In contrast, OCGA § 40-6-391(a)(6) makes it illegal to drive after ingesting any controlled substance whether that substance impairs your ability to drive or not.

It is clear that under OCGA § 40-6-391(a)(2) evidence which merely shows the ingestion of a controlled substance is not enough to convict someone of DUI less safe under OCGA § 40-6-391(a)(2).  In order to be convicted under OCGA § 40-6-391(a)(2), the state must prove that Head "was a less safe driver as a result of being under the influence of [these drugs]." Head v. State, ___ S.E.2d ___, 2010 WL 963658, A09A2039 (Ga. App. March 18, 2010); Ricks v. State, 255 Ga.App. 188, 190 (564 S.E.2d 793) (2002). See also State v. Ellison, 271 Ga.App. 898, 902(3)(b), 611 S.E.2d 129 (2005); Bowen v. State, 235 Ga.App. 900, 901-902 (510 S.E.2d 873) (1999).

With regard to OCGA § 40-6-391(a)(6), however, Georgia's DUI law may result in a DUI conviction based on mere ingestion of a controlled substance.  In its current state, OCGA § 40-6-391(a)(6) may result in a DUI conviction based upon the ingestion of a drug that another personal may legally be prescribed.  This portion of our DUI law does not require the state to show any evidence of impairment.  Head v. State, ___ S.E.2d ___, 2010 WL 963658, A09A2039 (Ga. App. March 18, 2010); Keenum v. State, 248 Ga.App. 474, 475(2) (546 S.E.2d 288) (2001).