SUMMARY OF
GEORGIA'S DUI LAW
Covering Arrests Made Prior to July 1, 1997

For arrests made July 1, 1997 through June 30, 2001, CLICK HERE

For arrests made July 1, 2001 or after, CLICK HERE

© 1995 William C. Head

By: William C. Head, Esq.
750 Hammond Drive
Building 5
Atlanta, GA 30328
Phone 888-250-6404

GENERAL INFORMATION: Substantial, significant changes in Georgia's laws went into effect January 1, 1995. Other changes occurred on July 1, 1994.

This Summary of Georgia DUI law only pertains to the criminal offense of DUI. Any administrative (non-criminal) license suspension penalties are covered in the section which follows. If a person suffers a license suspension penalty under Georgia's administrative suspension, credit is given for any later license suspension that may result from a conviction on criminal charges.

This summary also covers the JUDICIAL penalties for the criminal offense of DUI. Many other non-judicial penalties will inevitably follow a DUI nolo contendere plea, guilty plea or conviction. These can include increased insurance cost (or cancellation of coverage), inability to rent cars, job barriers, etc. These non-judicial penalties are not addressed in this Summary.

A DUI conviction or plea of "guilty" or nolo contendere will be a permanent part of your driving record. It does not "come off" your record after 5 years ... it never comes off your record. Moreover, a conviction, guilty plea or nolo contendere plea is reported to the Georgia Department of Public Safety, which in turn, reports it to the National Driver's License Registry.

These computer records are accessible to driver's licensing agencies nationwide.

Any non-resident driver's home state driver's license agency (DMV, DPS, etc.) will receive a notice from the Georgia Department of Public Safety if any license suspension or case disposition (conviction or nolo contendere plea) occurs in Georgia and the non-resident license is involved. In almost all cases, a nolo plea or a guilty plea or verdict in a criminal case for DUI in the State of Georgia will cause a suspension to occur in the non-resident's home state.

In two different ways, Georgia law permits prosecution of persons who are DUI-alcohol:

TWO TYPES OF DUI-ALCOHOL: In a "traditional" DUI case, the State must prove that the driver was a less safe driver as a result of alcohol consumed. This type of case can be pursued even if no test result exists. Whenever a person has taken a blood, breath, or urine test, the State will introduce evidence of the result. To "help" the prosecutor prove "less safe" driving, the legislature passed a law which permits a prosecutor to benefit from certain "legal" presumptions. A blood alcohol level of .08 is the level of "presumed" impairment for persons 18 or older. This presumption comes into play at trial where the prosecutor asks the judge to instruct the jurors that if they believe that the State has proven beyond a reasonable doubt that the driver had an alcohol level of 0.08% or more, that the jurors should "infer" that the driver was impaired. This inference, however, may be disputed by the driver, and evidence showing lack of impairment can be introduced. Georgia law also sets forth other "inferences" in the law, including the fact that persons who have a blood alcohol level of .05 or under are inferred (presumed) to NOT be impaired by alcohol. However, the State can attempt to refute that "presumption" by other proof (e.g., a collision, atrocious driving, disregard for the safety of others, etc.). If a person is .06 or .07, neither the driver nor the prosecutor is given the benefit of an "inference".

The second way that the State will attempt to prove some DUI cases (where there is a chemical sobriety test result over the legal limit) is known by lawyers as the "per se" DUI offense. It would be more accurate to call this driving with an unlawful blood alcohol level. To prove this type of DUI-alcohol, the State need not prove any "less safe" driving or any "drunken" condition. The offense is committed simply by having an unlawful blood alcohol level and "operating" an automobile. For persons 18 and older, the prohibited "level" is 0.100% or more, from a test taken by police within 3 hours of driving.

Hence, when there is a blood, breath or urine test result "in evidence" there are two separate ways for the State to prove a DUI case: (1) by proving less safe driving, utilizing the test result (and the inferences discussed above) or proceeding on other evidence in the case, such as field sobriety tests, smell of alcohol, etc., or (2) by proving that the person was driving with an unlawful blood alcohol level. This second way of proving a case is called the "per se" DUI. This method of proving DUI-alcohol requires a blood, breath or urine test. In refusal cases, the State can only pursue and prove a "less safe" DUI-alcohol case since no test result is available to prove the BAC level.

Legal Limits of Alcohol

An alcohol content reading of .04 BAC is the level for per se (legally DUI) intoxication for persons under the age of 18 at the time of arrest. This means that if you submitted to the state's test and the result was .040 or higher, you were driving with an unlawful blood alcohol level.

An alcohol content reading of .04 BAC is the level for per se (legally DUI) intoxication for persons with a CDL license who were stopped while operating a commercial vehicle. This means that if you submitted to the state's test and the result was .040 or higher, you were driving with an unlawful blood alcohol level. If a commercial driver is stopped in a commercial vehicle and the State's test reveals ANY alcohol, a 24-hour out-of-service order will be issued, and the truck will be impounded until said time period is over.

An alcohol content reading of .10 or more is considered per se (as a matter of law) intoxicated for persons who are age 18 and older. The prosecutor, however, must be able to prove that the test given was a valid test, and that it was taken within 3 hours of driving or being in actual physical control of a vehicle. This means that if you submit to testing and yield a result over .099, you will be accused of driving with an unlawful blood alcohol level. No evidence of "bad driving" or visible signs of impairment is REQUIRED to obtain a conviction for this type of DUI.

Other than the two methods of proving DUI-alcohol, Georgia law also provides for prosecution of other types of "impaired" driving. A person can be prosecuted for driving under the influence of alcohol and drugs, or drugs (prescribed or non-prescribed), or DUI contraband (illegal) drugs such as marijuana or cocaine. Depending on the type of evidence available (i.e., blood, breath or urine test), a prosecutor can proceed on any or all or one of these "types" of DUI.

"Repeat offender" status is determined in Georgia based upon a five-year "lookback" period for purposes of increased mandatory minimum punishment. This "lookback" period has nothing to do with how long a DUI remains on your record.

Whenever the 5-year "lookback" period is discussed herein, the method of counting is as follows:

1) take the DATE OF ARREST for the previous DUI offense (not the disposition or plea date;
2) the prior DUI "counts" against you, whether it was disposed of as a plea of guilty, with a trial resulting in a "guilty" verdict or where a nolo contendere plea was ultimately accepted; and
3) take the DATE OF ARREST in the current case, and determine if more than five full years have expired.

A bad record can come back to haunt a person facing a current DUI charge. Remember that a judge can (and many do) ignore the 5-year lookback period and review your ENTIRE record for purposes of:
a) not allowing a nolo contendere plea;
b) increasing your punishment (up to the maximum penalties set by law) over that which he/she would give another person with no prior record; and
c) allowing the prosecutor (in some instances, after notice and a pre-trial hearing) to introduce evidence of prior instances where you were stopped driving while impaired. The prosecutor may attempt to bring in evidence from any case even those older than 5 years. This is called introducing evidence of "similar transactions". Some judges will not readily admit similar transaction evidence from other DUI cases, due to its tremendous prejudicial harm to the current case. Other judges routinely permit prior transaction evidence into the current case.

The counting of "first", "second", etc., relates to which offense this is within the 5 year "look-back" period. This determines minimum punishment that must be assessed if a guilty verdict or plea is entered, or (if available) if a nolo contendere plea has been entered.

DUI First offense/Nolo Contendere Plea (Simple Misdemeanor)

[NOTE: No person who has had a prior nolo contendere plea or guilty plea or verdict within the 5-year "lookback" period is eligible to receive the favorable benefits of retention of Georgia's driving privileges under a nolo contendere plea. A nolo plea is now unavailable for persons who take a State test and have a result higher than 0.150%. Also, drivers under age 18 at the time of arrest are ineligible.]

• Fine: $300-$1,000
• Jail: 10 days to 12 months (all or part of the sentence may be suspended, stayed or probated). On nolo pleas, no jail time is required by most judges. Exceptions to this general rule exist but are rare.
• Community Service: A minimum of 40 Hours of Community Service is MANDATED.
• License Suspension: If the court accepts a nolo plea the offender must complete the Risk Reduction Program and submit proof of completion to the Department of Public Safety within 120 days of the court date/disposition to avoid suspension. Most courts require the completion of the Risk Reduction Program (driving school) before a nolo plea will be accepted. Some courts (e.g., City Court of Atlanta) require that all the community service work be completed before a plea is taken. For persons licensed by a state other than Georgia, a nolo plea will not "save" your license, in most cases. The home state will routinely suspend or revoke the person's license in their home state. So, a nolo plea is no better than a guilty verdict at trial.

A plea of nolo contendere is always discretionary (optional) with the judge handling the case. It is unavailable to drivers under the age of 18 at the time of arrest. It is often unavailable in the event of a refusal to submit to a chemical sobriety test at the time of arrest. A nolo is also unavailable to any person who has had a prior guilty plea or verdict or a prior plea of nolo contendere to DUI in the past 5 years.

The individual judge decides whether he/she will accept a nolo plea. Any person stopped July 1, 1994 or after who has a BAC test of over 0.150 cannot plead nolo. Many judges require a copy of your lifetime driving record. Even one prior DUI will cause some judges to deny nolo treatment. Sometimes a bad driving history (with no prior DUI's) will cause a judge to deny this plea alternative.

If the offender does not file with DPS a certificate proving completion of a Risk Reduction Program within 120 days, the Department of Public Safety will suspend his or her driver's license. The suspension will not be lifted until proof of completion of the Risk Reduction Program is received and a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in) is paid. The obligation of filing this paperwork in a timely and complete manner is on the licensee.

IN SUMMARY, OFFENDERS WITH A BAC OF .151 OR MORE CANNOT PLEAD NOLO. NOLO TREATMENT IS ALWAYS OPTIONAL WITH THE JUDGE, BUT CANNOT BE PERMITTED FOR A PERSON WHO HAS A PRIOR DUI WITHIN 5 YEARS. FURTHERMORE, LICENSE SUSPENSION IS MANDATORY, IF NOLO IS NOT ACCEPTED. FOR DRIVERS UNDER 18 AT THE TIME OF ARREST, NOLO IS NOT AN OPTION WHICH IS AVAILABLE.

DUI First Offense/Guilty Plea or Being Found Guilty at Trial (Simple Misdemeanor)

• Fine: $300-$1,000
• Jail: 10 days to twelve months (all or part of the sentence may be suspended, stayed or probated at the judge's discretion). Most judges will not require jail time for a guilty plea or verdict of guilty, but others will require some jail time.
• Community Service: A minimum of 40 Hours of Community Service is MANDATED.
• License Suspension: One year suspension, but "work permit" is available. After 120 days and completion of driving school course, application for reinstatement is possible. Therefore, 121 days after conviction, offenders may apply to the Department of Public Safety for possible early reinstatement by submitting proof of completion of the Risk Reduction Program and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in).

DUI Second Offense/Guilty Plea or Being Found Guilty at Trial (Simple Misdemeanor)

• Fine: $600-$1,000
• Jail: 90 days to twelve months. All but 48 hours of jail time can be suspended, stayed or probated. Forty-eight (48) hours in jail is MANDATED. However, some judges will consider (in the right case and with the right witnesses and proof) permitting all or part of the "jail" time to be served at either (a) a halfway house; (b) in drug/alcohol treatment [in-house]; (c) by way of "house detention", whereby you must be at home and respond to monitoring and testing whenever you are not at work, treatment, etc. The judge sets the rules of when you must be at home. Any alternative to traditional jail time is a matter of planning by the attorney and client, and is usually subject to "negotiations" between the prosecutor and the defense attorney which are later implemented by the judge into a formal, written order or "sentence". The remainder of the sentence may be suspended, stayed or probated—at the judge's discretion.
• Community Service: Not less than eighty (80) hours of Community Service is MANDATED in all cases.
• License Suspension: Three year suspension. No "work" permit available to anyone for any reason. After a minimum of 120 following the date after the suspension began, and completion of driving school course, application for reinstatement is possible. Therefore, 121 days after conviction, offenders may apply to the Department of Public Safety for possible early reinstatement by submitting proof of completion of the Risk Reduction Program and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in).

DUI Third Offense/Guilty Plea or Being Found Guilty at Trial (High and Aggravated Misdemeanor)

• Fine: $1,000-$5,000
• Jail: One Hundred Twenty (120) days to twelve months. All but ten (10) days may be suspended, stayed or probated, but ten (10) days in jail is MANDATED. However, some judges will consider [in the right case and with the right witnesses (e.g., alcohol rehab counselors) and other proof] permitting all or part of the "jail" time to be served at either (a) a halfway house; (b) in drug/alcohol treatment [in-house]; (c) by way of "house detention", whereby you must be at home and respond to monitoring and testing whenever you are not at work, treatment, etc. Any alternative to traditional jail time is a matter of planning by the attorney and client, and is usually subject to "negotiations" between the prosecutor and the defense attorney which are later implemented by the judge into a formal, written order or "sentence". The remainder of the sentence may be suspended, stayed or probated, at the judge's discretion.
• Community Service: Not less than twenty (20) days of Community Service is MANDATED. Some judges translate "days" to mean 20 eight-hour workdays (160 hours); others translate this into 20 twenty-four hour days (480 hours) of "service".
• License Revocation: Five year license revocation, and the offender is declared a Habitual Violator. Offenders may apply for a probationary license after two (2) years of the 5-year revocation period provided that stringent reinstatement requirements are met. Offenders should contact the Department of Public Safety for specific requirements, or ask his/her legal counsel. No "work" permit is permitted whatsoever.

In conjunction with a Third (or subsequent) Conviction, a notice of conviction will be published in the local newspaper including:

1) Photograph of offender taken at time of arrest
2) Name and address of offender is given
3) Date, time, place of arrest and disposition of the case
4) The offender is assessed an additional $25.00 fee to be paid to the Clerk of Court to cover the cost publishing the photograph
5) The size of the photo and written notice that accompanies it is 1 column wide by 2 inches high.

SPECIAL CAUTION: UPON A FOURTH CONVICTION WITHIN FIVE YEARS, HABITUAL VIOLATORS CAN HAVE THEIR MOTOR VEHICLES SEIZED BY THE STATE.

Drug Offenses and DUI-Contraband

While a DUI offense involving drugs may be prosecuted by the State even where the drugs are prescribed by a physician, special rules apply to DUI-contraband cases involving illegal substances (marijuana, cocaine, heroine, etc.). The DUI offense here is based upon driving while having an unlawful substance in your blood system. The prosecutor is not required to prove impairment caused by the illegal drugs in your system, just that it showed up in the test.

Beyond the misdemeanor DUI-contraband penalties set forth above, Georgia law has other more punitive statutes for possession of drugs. A "possession" offense may be committed by a person driving a car, or by a person not operating a car. However, a person driving a vehicle may face both the DUI-contraband offense AND the possession offense.

These "possession" statutes are generally felonies, except where small amounts of marijuana are involved. So, a test which shows positive for cocaine will result in a felony prosecution for possessing cocaine (i.e., possessing it within your body). Other drugs are often found in the person's pockets or in the vehicle. As covered hereafter, your driver's license can and will be suspended for possession of drugs EVEN IF you were not driving when arrested.

First Conviction on Possession of Controlled Substance (Felony) or Marijuana (Misdemeanor or Possible Felony depending upon drug and quantity)

• Fine: Up to $1,000 for marijuana/Court's discretion for other controlled substances (like heroin, cocaine, etc.).
• Jail: 1 - 15 years depending on the substance.
• Community Service: Up to twelve (12) months of Community Service for possession of marijuana.
• License Suspension: 180 day minimum. 181 days from conviction offenders may apply to the Department of Public Safety for possible early reinstatement of driving privileges by submitting proof of completion of a Risk Reduction Program and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in). No "work" permit whatsoever is allowed for "drug" offenders.

These are minimum sentences for a first offense on possession of a controlled substance. Additional penalties may be set at the discretion of the judge/court depending on the severity of the offense and substance.

Second Conviction on Possession of Controlled Substance or Marijuana (Felony)

• Fine: At the Judge's discretion
• Jail: 1 - 30 years depending on the substance
• License Suspension: One year minimum. After one year, offenders may apply to the Department of Public Safety for possible early reinstatement of driving privileges by submitting proof of completion of a Risk Reduction Program and paying a reinstatement fee in the amount of $200.00 (mail-in) or $210.00 (walk-in). No "work" permit available.

These are minimum sentences for a second offense on possession of a controlled substance. Additional penalties may be set at the discretion of the judge/court depending on the severity of offense and substance.

NOTE: Upon conviction for possession of any contraband drug, in any amount, The law calls for a suspension of an offender's driver's license regardless of whether the offender was operating a motor vehicle at the time of arrest.

Any conviction of DUI or possession of marijuana or other controlled substance requires mandatory participation in the Risk Reduction Program in order to apply to the Department of Public Safety for possible reinstatement of driver's license. Suspensions will not "age off", so as to automatically entitle you to drive once again. Application must be made, and fees paid before driving privileges will be restored.

DRIVING WHILE YOUR LICENSE IS SUSPENDED

First Offense Driving on a Suspended License (Simple Misdemeanor)

The penalty for a first offense of driving on a suspended license is not less than 2 days nor more than six (6) months of jail time and the fine is not less than $500 nor more than $1,000. The Department of Public Safety will automatically suspend the driver's license for 6 months (from date of conviction) with no "work permit" available. If the suspended driver is ultimately determined to have been suspended, any suspension called for here is ADDED ON to other existing suspension period. No reinstatement fee is required, however, and this suspension may "age off".

Second (or Subsequent) Offense for Driving on a Suspended License (High and Aggravated Misdemeanor)

The penalty for a second offense of driving on a suspended license is not less than 10 days and no more than one year of jail time and the fine is not less than $1,000 nor more than $2,500. The Department of Public Safety will automatically suspend the driver's license for 6 months (from date of conviction) with no "work permit" available. If the suspended driver is ultimately determined to have been suspended, any suspension called for here is ADDED ON to other existing suspension periods.

Georgia Law Regarding Underage Drinking While Driving (Simple Misdemeanor)

Persons under the age of 21 who are convicted of being in possession of alcohol while operating a motor vehicle have a mandatory 120 day driver's license suspension and must attend the Risk Reduction Program and pay a reinstatement fee of $25.00 (mail-in) or $35.00 (walk-in). No work permit is available and no early reinstatement.

Juveniles under the age of 16 who have a FIRST offense of DUI or possession of alcohol will have his or her license or driving privilege suspended until age 17 and will have to attend the Risk Reduction Program or court approved juvenile program and pay a reinstatement fee of $200.00 (mail-in) or $210.00 (walk-in).

Juveniles under the age of 16 who have a SECOND offense of DUI or possession of alcohol will have his or her license or driving privilege suspended until age 18 and will have to attend the Risk Reduction Program or court approved juvenile program and pay a reinstatement fee of $200.00 (mail-in) or $210.00 (walk-in).

An Open Container of Alcoholic Beverage will be considered in the possession of the driver if it is (a) not in the possession of a passenger or (b) is not locked outside of the passenger compartment (trunk/glove compartment). An officer will follow these rules in making an arrest, but "possession" can be contested at trial, especially since passengers can have open containers of alcohol inside the vehicle. The driver can be fined up to $200.00 and receive 2 points on his or her driver's license. [NOTE: Some counties or cities (e.g., Savannah) have stricter open container ordinances and prohibit any person—driver or passenger—from having open containers in the car.]