No Georgia DUI defendant should be convicted of driving under the influence of marijuana per se after Love v. State, which was decided in 1999. Unfortunately, I continue to see many defendants and "criminal defense lawyers" who are unaware of the case. The ramifications of not knowing about Love can be tremendous. Knowing about this issue may be the difference between having to disclose on employment applications for the rest of your life that you have been convicted of a drug-related charge or not. Consult with an experienced and qualified Georgia DUI lawyer on your DUI charges.

In Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), the Court of Appeals held that O.C.G.A. § 40-6-391(a)(6) violated the Equal Protection Clause of the state and federal Constitution. The Love Court's decision turned upon the differing standards of proof required with regard to "legal," as opposed to "illegal," DUI marijuana charges. Pursuant to O.C.G.A. § 40-6-391(b):

a person legally entitled to use marijuana who is driving with marijuana metabolites in his body fluids may only be convicted of violating § 40-6-391(a)(6) if ‘such person is rendered incapable of driving safely as a result of using [the] drug....'

517 S.E.2d at 57.

In contrast, under O.C.G.A. § 40-6-391(a)(6), "a person with metabolites of illegally-used marijuana can be found guilty of driving with marijuana in his system without evidence of impairment." Love, 517 S.E.2d at 57. Impairment is not an element of O.C.G.A. 40-6-391(a)(6). O.C.G.A. § 40-6-391(a)(6) simply punishes the act of driving while marijuana metabolites are present in one's bodily fluids.

There is no difference between the pharmacological effects of legally-used and illegally-used marijuana. Love, 517 S.E.2d at 57. This disparate treatment of those legally and illegally using marijuana, despite there being no pharmacological difference between the effects of marijuana upon the two categories of people, gives rise to constitutional infirmity based on the denial of equal protection.

Neither the right to drive nor users of marijuana present a "suspect class" or a "fundamental right." Therefore, analysis of whether O.C.G.A. § 40-6-391(a)(6) violated the Equal Protection Clause turned upon whether there was a "rational relationship between the statute and the legitimate state purpose of public safety." Love, 517 S.E.2d at 57. Because the use of marijuana, whether legally or illegally, did not impact the effects of the drug upon the user and O.C.G.A. § 40-6-391(a)(6) treated illegal users of marijuana more harshly, the Georgia Supreme Court stated:

[W]e are unable to hold that the legislative distinction between users of legal and illegal marijuana is directly related to the public safety purpose of the legislative purpose of the legislation.... Accordingly, we conclude that the distinction is arbitrarily drawn, and the statute is unconstitutional denial of equal protection.

Love, 517 S.E.2d at 57.