Georgia DUI Breath Testing

Our Georgia DUI lawyers understand how to properly attack the reliability of a breath test.
Most Georgia DUI cases involve a state-administered breath test. In Georgia, the state-administered breath test is performed on an Intoxilyzer 5000. Our Georgia DUI lawyers have gone to great lengths to know every possible means of contesting the reliability of the Intoxilyzer 5000.

If you are charged with have a breath-alcohol concentration of 0.08 grams or more, you need a Georgia DUI lawyer that understands how to properly demonstrate the unreliability of the Intoxilyzer 5000. You can count on our Georgia DUI lawyers to properly defend you in such a case. Contact our office today for a free consultation.

Georgia DUI Arrest – What Is Required for a GA DUI Arrest?

In order to place you under arrest for DUI or drunk driving in Georgia, the police must have what is called probable cause.

“The probable cause needed to conduct a DUI arrest requires that the officer ‘have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.'” State v. Gray, 267 Ga.App. 753, 754, 600 S.E.2d 626 (2004), quoting Malone v. State, 261 Ga. App. 420, 421, 582 S.E.2d 561 (2003) (Emphasis supplied). In order to establish probable cause for a DUI arrest, evidence must show that the driver was impaired. State v. Batty, 259 Ga. App. 431, 432, 577 S.E.2d 98 (2003); State v. Burke, 230 Ga. App. 392, 393-94, 496 S.E.2d 755 (1998).

In evaluating whether probable cause to arrest for DUI existed, it is critical to recognize that evidence which merely shows that a person has consumed alcohol is insufficient to establish probable cause for a Georgia DUI arrest. The mere presence of alcohol or drugs is not enough evidence to establish probable cause for a DUI arrest. In order to establish probable cause to arrest a person for DUI in Georgia, the police must establish that a person’s ability to operate a motor vehicle safely is compromised as a result of alcohol consumption.

Throughout this site we discuss the evidence that the police rely upon in their efforts to establish probable cause for a DUI arrest. Our Georgia DUI lawyers are trained in the administration of field sobriety tests, and we know how to successfully defend you against this type of evidence. If you have any questions regarding this article or your Georgia DUI case, contact our office.

Georgia DUI “Less Safe” Charges

Our Georgia DUI lawyers are prepared to defend you against the most common DUI charge – the Georgia DUI “less safe” charge.
A common type of Georgia DUI charge that our Georgia DUI lawyers defend is known as a DUI “less safe” charge. In most cases where our clients are charged with only DUI less safe, that charge arises as a result of an alleged refusal of the state-administered blood, breath, or urine test in connection with their arrest for DUI. A refusal of the state-administered breath test can create a very defensible case because the state is deprived of the piece of evidence that most heavily rely upon to show impairment – the state-administered blood, breath, or urine test. Although a refusal of the state-administered blood, breath, or urine test may have very harsh ramifications on a driver’s license or privilege to drive in the state of Georgia, we have an excellent record of obtaining dismissals and reductions of charges in DUI refusal cases.

In Georgia, you can be charged with DUI despite the fact that your BAC was less than .08. You can also be charged with DUI in Georgia if you refuse to allow the state to test your blood, breath, or urine. If your BAC was less than .08 or you refused the blood, breath, or urine test and the state decides to go forward with the charge of DUI against you, you will be charged under Georgia’s DUI less safe law.

To illustrate how juries typically make a determination as to whether the evidence shows that a person was “less safe” for the purposes of a Georgia DUI less safe charge, consider the following jury charge on DUI less safe:

To prove the offense of Driving Under the Influence, the State need not prove that the defendant intended to commit the offense of driving under the influence, but the State must prove the defendant’s condition of being under the influence of alcohol to the extent of impairment and, while in this condition, the intent to drive. This general intent may or may not be inferred from the conduct of the accused and other circumstances.

It shall be unlawful for any person while under the influence of alcohol to drive or be in actual physical control of any moving vehicle anywhere within this state. A driver or operator of a motor vehicle is under the influence of alcohol when the person is affected by alcohol to the extent that it is less safe for the person to drive than it would be if the person were not affected by alcohol. A driver who is less safe is less efficient, less skillful, less coherent, less able, less qualified, and less proficient.

In deciding this issue, you may consider anything in the evidence that you find relevant in deciding whether defendant was a less safe driver. Specifically as to consumption of alcohol, you may consider, among other factors, the smell or lack of smell of alcoholic beverages on the defendant’s breath and/or her person and whether any test indicated the presence of alcohol in the defendant’s system. As to whether the defendant was less safe to drive, you may consider the factors you deem relevant, including, but not limited to, the actual manner of driving the motor vehicle; the defendant’s control of her mental and/or physical abilities; the defendant’s demeanor; and the physical condition of defendant. Merely showing that the defendant had been drinking or that there was the smell of alcohol on the defendant’s breath or person without proof of the manner of driving or the ability to drive is insufficient to prove that the defendant was guilty of driving under the influence of alcohol.

DUI drugs charges are most commonly as DUI less safe charges.

To sustain a conviction of DUI-less safe, it is not sufficient to show merely that Head was driving after having ingested, at some point in time, alprazolam and cocaine. Rather, the state must prove that Head “was a less safe driver as a result of being under the influence of [these drugs].” (Citation and punctuation omitted; emphasis in original.) 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) (“Mere presence of [drugs] is not the issue…. [T]he [s]tate must prove that the defendant had impaired driving ability as a result of [the drugs].”) (Punctuation and footnote omitted); Bowen v. State, 235 Ga.App. 900, 901-902, 510 S.E.2d 873 (1999). Cf. State v. Rish, 295 Ga.App. 815, 816, 673 S.E.2d 259 (2009) ( “If the evidence shows only that a driver is intoxicated and does not show that his consumption of alcohol [or drugs] has impaired his ability to drive, there is no probable cause to arrest for DUI-less safe.”).
Head v. State, 303 Ga.App. 475, 693 S.E.2d 845 (2010).

Experienced Georgia DUI lawyers recognize that there are favorable Georgia DUI cases which define “less safe” in a manner that is beneficial to our clients. Nonetheless, whatever definition is used, skilled Georgia DUI lawyers recognize that multiple pieces of evidences must be analyzed in order to successfully defend a Georgia DUI “less safe” charge.

Georgia DUI lawyers that successfully defend DUI “less safe” charges look at a multitude of factors, not simply an officer’s account of the clients performance on standardized field sobriety tests. Our Georgia DUI lawyers have successfully completed the 24-hour NHTSA standardized field sobriety test administration course, but our Georgia DUI lawyers recognize that field sobriety tests are often not where the fight over whether a driver is “less safe” should be waged.

Contact our Georgia DUI lawyers today to learn more about our proven methods of defending DUI “less safe” charges.

Georgia Drivers License Suspension After a Marijuana Charge Conviction

What Happens to a Georgia Drivers License After a Marijuana Conviction?

Here, we discuss what happens to your Georgia drivers license or privilege to drive in Georgia after you are convicted for a marijuana charge in Georgia. However, with slight exception for misdemeanor marijuana charges, these guidelines are applicable to all violations of the Georgia Controlled Substances Act (VGCSA). As always, We recommend that you consult with a qualified Atlanta marijuana charge defense lawyer before you enter any type of plea in to your marijuana charge.

Unlike Most Other Suspensions, Georgia Marijuana Charge Suspensions Run “Consecutively” to Other Pending Suspensions

After you are convicted or plead guilty to a Marijuana charge in Georgia, you will be served with a notice of suspension of Georgia drivers license or privilege to drive in Georgia. Unlike many other types of convictions that cause a mandatory license suspension (such as, DUI, Driving with a Suspended License, Hit-and-Run, etc.), pursuant to O.C.G.A. §40-5-75(i), all suspensions for a Controlled Substance violation committed on or after January 1, 2008 run consecutively to any other type of suspension on the record on the date of disposition. Therefore, if you have active suspensions on your record and you are convicted of a controlled substance violation, the controlled substance suspension will not become effective until all previously existing suspensions are reinstated or have aged-off. If you have no active suspensions and you are convicted of a controlled substance violation AND another mandatory suspension violation arising from the same incident, they will both run concurrently (at the same time) on the record. If you have a controlled substance suspension in effect on their record, and you are subsequently convicted of a non-controlled substance offense, that new suspension may run concurrently (at the same time) to the suspension in effect.

Any person who is not licensed in the state of Georgia at the time of disposition will become suspended upon conviction of a controlled substance violation. However, for the purpose of eligibility towards reinstatement, the time accrual will not begin unless/until they make application for reinstatement with the DDS. Anyone convicted of a controlled substance violation is urged to contact DDS directly after disposition to get information concerning a reinstatement application and their reinstatement eligibility.

First Marijuana Possession Conviction Within 5 Years

Plea of nolo contendere – Not accepted; shall be treated as a conviction (except for misdemeanor possession of marijuana as expressly described in this section).

Suspension – Yes; 180 day period beginning on effective date.

Limited Driving Permit – No

Reinstatement Requirements:

Submit an original certificate of completion of a DDS approved DUI Alcohol or

Drug Risk Reduction Program;

Remit a $210.00 reinstatement fee (or $200.00 if processed by mail).

Second Marijuana Possession Conviction Within 5 Years

Plea of nolo contendere – Not accepted; shall be treated as a conviction.

Suspension – Yes; 1 year period beginning on effective date.

Limited Driving Permit – No.

Reinstatement Requirements:

Submit an original certificate of completion of a DDS approved DUI Alcohol or

Drug Risk Reduction Program;

Remit a $310.00 reinstatement fee (or $300.00 if processed by mail).

Third Marijuana Possession Conviction Within 5 Years

Plea of nolo contendere – Not accepted; shall be treated as a conviction.

Suspension – Yes; 5 year period beginning on effective date

Limited Driving Permit – Yes, but only after 2 years of a hard suspension if defendant:

Has not been convicted or pleaded nolo contendere to any drug related offense,

including driving under the influence, for a period of two years immediately

preceding the application for a permit,

Completes a licensed drug treatment program approved by DDS,

Pays the permit fee of $25,

Submits proof of financial responsibility, and

Meets all other departmental requirements.

Reinstatement Requirements:

Submit an original certificate of completion of a DDS approved DUI Alcohol or

Drug Risk Reduction Program; and,

Remit a $410.00 reinstatement fee (or $400.00 if processed by mail).

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Ben Sessions is a Criminal Defense Lawyer and partner in the firm of McIlhinney & Sessions. His practice is focused on the defense of clients charged with DUI and other Drug and Alcohol-related offenses. If you have a question regading a marijuana charge in Atlanta or other parts of Georgia, do not hesitate to contact us today. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010 and 2011, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine. In 2010, he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers (DODD) Group. In 2011, Ben was recognized as the “DUI Lawyer of the Year” by DODD. Ben was selected by the Atlanta Municipal Court to participate in the 2011 DUI Court Advisory Committee. Ben has also been selected as a speaker for the Atlanta Municipal Court “C=C” program.