DUI Drugs…Really?

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).

Atlanta Public Drunkenness and Public Intoxication

We frequently represent people charged with public drunkenness or public intoxication in Atlanta Municipal Court.  Charges of puclic drunkenness or public intoxication are significant because they are obviously alcohol-related charges and they may appear upon your criminal history.  This type of charge may have an impact upon your employment.  Below, we discuss some of the issues that should be considered in defending a public drunkenness or public intoxication case in Atlanta.  We have also attempted to identify some of the common questions that clients have regarding this offense.

O.C.G.A. § 16-11-41. Public drunkenness

(a) A person who shall be and appear in an intoxicated condition in any public place or within the curtilage of any private residence not his own other than by invitation of the owner or lawful occupant, which condition is made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language, is guilty of a misdemeanor.

(b) This Code section shall not be construed to affect the powers delegated to counties or to municipal corporations to pass laws to punish drunkenness or disorderly conduct within their respective limits.

What is the maximum punishment for public intoxication or public drunkenness in Atlanta?

The maximum punishment for violation of this state law provision is 12 months in jail and a fine of $1,000.00.  Yes, this is the maximum punishment for every misdemeanor offense in Georgia.

What is a public place for the purposes of a public drunkenness charge?

Restaurant which issued implied invitation to members of public was “public place” within meaning of law making it a crime to be intoxicated while in public place, if condition is manifested in specific ways. Code, § 58-608. Talley v. State, 1973, 129 Ga.App. 479, 199 S.E.2d 908.

Yard of county jail is not per se a “place of public gathering or assembly,” for purposes of statute prohibiting manifested intoxication at place of public gathering or assembly, and whether yard of certain jail is place of public gathering or assembly in given instance is for jury in prosecution under such statute. Code, §§ 58-608, 91-705. Favors v. State, 1961, 104 Ga.App. 854, 123 S.E.2d 207.

What conduct will support a lawful arrest for public drunkenness?

In order to effectuate valid arrest for public drunkenness, defendant’s drunken condition must have been made manifest by boisterousness or by indecent condition or act or by vulgar, profane, loud or unbecoming language. Code, § 26-2607. Young v. State, 1980, 155 Ga.App. 598, 271 S.E.2d 731.

Where record clearly showed that defendant did not exhibit behavior which would justify arrest for public drunkenness and arresting officers testified that defendant did not speak until officers and defendant got to police station following arrest, arrest was not legally justified, and it was therefore error not to suppress fruits of the unlawful arrest. Code, § 26-2607. Young v. State, 1980, 155 Ga.App. 598, 271 S.E.2d 731.

Under circumstances wherein defendant was found either asleep or passed out in his automobile parked on premises of friends who testified that they had invited him to spend the night, but had themselves gone to sleep before he arrived, arrest for public drunkenness was illegal. Code, § 26-2607. Moore v. State, 1980, 155 Ga.App. 299, 270 S.E.2d 713.

Can you be removed to a public place and charged with public drunkenness?

Where a person is intoxicated in a place which is not one designated by statute, he cannot be forcibly removed from that place to a public place within the purview of the statute and then charged with committing the offense in the latter place. Code, § 58-608. Finch v. State, 1960, 101 Ga.App. 73, 112 S.E.2d 824.

What are the essential elements of a public drunkenness (public intoxication) charging document?

Where indictment charges that alleged drunkenness and intoxication are caused by excessive use of intoxicating wines, beers, liquors, and opiates, failure to prove that drunkenness was caused by any intoxicant enumerated is fatal. Code 1933, § 58-608. Plemons v. State, 1939, 60 Ga.App. 639, 4 S.E.2d 681.

Accusation, charging defendant with manifested intoxication in yard of county jail, was insufficient for failure to allege character of place where offense was allegedly committed. Code, §§ 58-608, 91-705. Favors v. State, 1961, 104 Ga.App. 854, 123 S.E.2d 207.

Are there certain techinal defenses that can be raised in the defense of a public drunkenness (public intoxication) charge?

In addition to those discussed above, consider that:

State failed to meet its burden of proving that defendant’s public intoxication violated local ordinance, where state failed to place into evidence a copy of ordinance involved. Poole v. State, 1997, 229 Ga.App. 406, 494 S.E.2d 251.


Ben Sessions is an Atlanta DUI 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. 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.

Atlanta DUI Defense Lawyer

Our DUI lawyers recognize how overwhelming a DUI charge can be. The potential loss of employment, loss of your drivers, potential expenses, and possible jail sentences are expected sources of fear. However, unlike many law firms that “handle” DUI cases, our firm is committed to one singular goal: helping you avoid the potentially catastrophic penalties of a DUI conviction.

Allow our experienced DUI lawyers to help you through this process. We have an excellent track record of achieving dismissals and reductions of DUI charges in Atlanta. When you meet with our Atlanta DUI lawyers, we will discuss the avenues of defense in your Atlanta DUI case, and we will provide you with a clear plan of action that alleviates many of the concerns that our clients have.

Our Atlanta DUI lawyers can also help you address the “collateral” consequences of your DUI charge. Our experience allows us to predict the obstacles that you may face in terms of your employment and your driver’s license as result of your charge.

If you are charged with DUI in Atlanta, Georgia, you need the very best Atlanta DUI defense lawyer possible. Our Atlanta DUI lawyers are among the most experienced and skillful DUI lawyers in Georgia. Our Atlanta DUI lawyers aggressively pursue your defense, yet we strive to maintain the professionalism, tact and skill necessary to negotiate favorable dispositions when it is possible. Our Atlanta DUI defense lawyers deliver results.

If you face an Atlanta DUI, contact our Atlanta DUI lawyers for a free consultation. We can clarify many of your concerns, identify a clear plan for the defense of your Atlanta DUI, and provide you with the peace of mind of knowing that your Atlanta DUI charge will be in the trusted hands of a qualified Atlanta DUI lawyer.

Are you overwhelmed at the number of lawyers holding themselves out as “DUI lawyers”?  Consider our article on choosing a DUI lawyer before you make a decision, and call us to schedule an in-person consultation.  This decision is simply too important to be made over the telephone.

Alpharetta MIP Lawyer | Alpharetta, Georgia Underage Drinking Lawyer

If you face a MIP charge in Alpharetta, Georgia, you should contact our office today. We have an excellent track record in handling these cases and minimizing the short- and long-term impact that this charge can have upon you and your future.

Georgia law makes it illegal for any person under the age of 21 to possess alcohol. This criminal offense, which is known as minor in possession of alcohol or MIP, can have a very severe impact upon young adults seeking employment and applying to graduate school programs.  In addition, a Georgia minor in possession or MIP conviction can result in the suspension of a driver’s license.  You need a lawyer that understands how a Georgia minor in possession (MIP) conviction can impact your future, and you need a lawyer that can help keep this offense from appearing on your criminal and driving record.

A conviction for minor in possessions of alcohol (MIP) while operating a motor vehicle in Alpharetta, Georgia, will cause a 120-day suspension of the driver’s license.  There is no limited driving permit which will permit the person to drive during the period of suspension for a MIP conviction.  Upon a MIP conviction, a person cannot even obtain a limited a driving permit that that would enable them to drive to and from work or school.

MIP while not operating a motor vehicle should not result in a suspension of a driver’s license.  However, if the citation is reported to the Department of Driver Services, a Georgia MIP conviction, even if the offense did not occur in connection with the operation of a motor vehicle, it will result in a license suspension.

Our experienced Alpharetta lawyers recognize that in many cases there are multiple ways to avoid a Georgia minor in possession of alcohol (MIP) conviction .  In most MIP cases, we can keep the offense off your criminal and driving record, and we can frequently obtain an expungement if you were arrested.

If you need an experienced lawyer to defend you with regard to a minor in possession of alcohol (MIP) charge in Alpharetta or an Alpharetta underage drinking lawyer, contact our office today for a free consultation.