By: William C. Head, Georgia Criminal Defense Attorney and Atlanta DUI Lawyer Since 1976

Six (6) primary Georgia statutes outline most legal challenges under the criminal laws pertaining to driving under the influence.  Since 2008, Georgia laws on driving impaired have had both misdemeanor DUI and felony DUI statutory provisions. Looking at punishments for repeat offenders illustrates the “ramping up” of criminal punishment for scofflaws who get convicted of this serious offense more than once.

Getting a precise DUI definition is a bit elusive, since different subsections of GA DUI law proscribe different criminal conduct. The word criminal is italicized because most DUI Georgia cases also carry administrative license suspension consequences controlled by what are called implied consent laws that affect a Georgia driver’s license. The purpose of such laws is to get a post-arrest chemical test of blood alcohol content or drug concentrations.

The administrative consequences address only a driver’s ability to operate a motor vehicle, and carry no other traditional punishment sanctions such as jail time, being on probation, mandatory DUI classes, etc. To not create confusion between criminal aspects of drunken driving or driving while impaired by other substances, those administrative sanctions and consequences are discussed on other pages. This page focuses on Georgia DUI penalties for various offenders.

Multiple Georgia DUI Laws Affect Criminal Law Enforcement

The interrelationship of the statutes will be obvious once you read the descriptions below. Consider each DUI GA law by what improper behavior is being criminalized in the fashion that the Georgia General Assembly wrote the laws controlling intoxicated driving. Stopping highway accidents and death is the overriding concern for lawmakers.

Your starting point for considering the DUI penalties and consequences of a Georgia DUI conviction is to know that issues relating to DUI penalties must be separated into two-categories. First are the criminal law penalties for DUI in GA, which utilize a 10-year lookback period. Second, your driver’s license consequences are measured by a 5-year lookback. For BOTH lookback periods, the controlling factor is DATE OF ARREST to date of arrest.

Even those who have taken prescribed medications can face a charge as a misdemeanor or felony DUI GA. You can be accused by a police officer when the prescribed Rx drugs are combined with other drugs or alcohol, or when the medicine has been consumes in a dose beyond what was prescribed.

GA Code 40-6-391 – Gives our state’s DUI meaning and breaks down the various methods by which a citizen may be accused of drunk driving, drugged driving or being impaired by noxious vapors or chemical inhalants. This statute is written so broadly that both legal and illegal substances can be the “impairing substance” such as a person being high on caffeine or fumes from a Cool Whip aerosol can;

GA Code 40 6 392 – Establishes guidelines for forensic breath testing and use of other testing methods for urine or other bodily fluids, plus imposes periodic accuracy inspections of the Intoxilyzer 9000 breath alcohol test devices by use of a simulator of a series of precision checks;

GA Code 40 -5-75 – Suspension of driver license if convicted or plead nolo to any DUI charge in Georgia;

GA Code 40-6-391.1 – Limits the use of a nolo contendere plea in an impaired driving case of any type;

GA Code 40-6-391.2 – For drivers declared to be a habitual violator, this statute controls for how long that driver is embargoes from driving and how he or she can obtain future restricted driving privileges;

GA Code 40-6-391.3 – Special felony enhanced penalties under GA DUI laws for any school bus driver operating under the influence of alcohol, drugs or other substances.

DUI Less Safe and DUI Per Se in Georgia: What’s the Difference?

Next you must be aware that two methods of being charged exists in Georgia and most other states. First is the type of DUI that has existed from the beginning of motor vehicles, which is that the driver is too impaired (by alcohol, prescription drugs, or other substances or a combination) to drive. While many states (e.g., South Carolina, Oklahoma and others) mandate that the Prosecutor must elect ONE method for seeking conviction, most other jurisdictions (e.g., NC, GA, WV) permit putting both methods of committing the crime in front of the jury.

The concept of less safe DUI laws is that your symptoms (as caught on video or through an officer’s description will match the effects that a high dose of alcohol will have on a driver. Federal and state highway fatality and serious injury statistics show a proven correlation of driving intoxicated and collisions. Georgia calls these laws “DUI less safe” criminal charges and much of their circumstantial evidence comes from the voluntary and optional field sobriety tests, which are not scientific.

The other method of accusing a citizen is by having an illegal quantity of alcohol or certain contraband drugs in his or her system, as proven by a forensic test. These laws are commonly called DUI per se laws in GA and are found in subsections (a)(5) [for being over the legal alcohol limit] and (a)(6) drugs other than alcohol under O.C.G.A. 40-6-391. Asserting a defense that you were unimpaired is not going to be relevant to the legal question of what’s in your system.

For drugs, having any measurable quantity of contraband substances in his or her blood alcohol level (e.g., crystal meth, cocaine, PCP, THC from marijuana or cannabis). Current changes in Georgia laws allowing hemp products creates a possible constitutional challenge for accusations made under 40-6-391 (a)(6) that claim any measurable level of non-psychoactive THC or the metabolites of CBD oil or capsules.

First Offense DUI Within the Last 10 Years (Misdemeanor DUI)

Possible jail time up to 12 months, but GA DUI law calls for 24 hours in jail if driver’s BAC level was 0.080 grams percent or higher. Credit given for time in custody following your arrest.

A monetary fine of $300 plus applicable state surcharges is the minimum but can be as high as $1,000 plus surcharges. The state of Georgia surcharges roughly double that fine amount or can be even higher for DUI-drugs convictions.

Driver license suspension for one year, but first DUI offense in the last five (5) years permits drivers age 21 and over who are Georgia residents obtain an immediate limited permit to drive. This limited driving permit runs for up to twelve months, but the person with a first-time offense can reinstate after 120 days by supplying the risk reduction certificate and reinstatement fee (see below). 40 hours of community service, minimum mandatory

After 4 months, a DUI first offense can apply to have the full driver’s license reinstated by taking $210 ($200 if handled via mail) to a DDS Georgia office, with the needed Secure ID documentation.

Attend and complete Risk Reduction School (DUI classes), which is a 20-hour course in GA. Approved similar classes can be taken in other states, if on the DDS GA approved list.

Second DUI Offense Within Ten (10) Years of Any Prior DUI-DWI-OUI Offense or Nolo Plea (Misdemeanor DUI)

Statute calls for 90 days to 12 months in jail, but requires the judge to impose not less than a minimum mandatory seventy-two 72 hours in jail;

Fine of $600 to $1,000, and state surcharges will double (or more) the total cost);

The violator’s name, plus a summary of the case sentencing & disposition, plus that person’s mug shot photo, street address and date of disposition are published in local newspaper and at the violator’s sole expense;

Driver’s license suspension for three (3) years, with provisions for most GA licensees to regain limited driving privileges after 120 days when using an approved ignition interlock device, and being restricted to one vehicle;

Georgia law calls for 30 days community service, which is 240 hours on a second offense DUI;

$310 is the required license reinstatement fee (only $300 if by mail) that must be paid to later regain your full license after 18 months or more has passed, and you have complied with the interlock law.

A mandatory clinical evaluation as mandated under OCGA 40-5-1, and, if treatment is needed, the completion of substance abuse therapy sessions and treatment program at the offender’s expense

To regain driving privileges after a DUI 2nd offense, the DUI school (same as set forth under 1st offense DUI above) must be completed, or a comparable course in another state. This is commonly called the “risk reduction program.”

Third Offense DUI Within 10 Years of Two Prior DUI-DWI Convictions or Nolo Contendere Pleas (High and Aggravated DUI Misdemeanor)

Fine amount of $1000 at a minimum, up to $5,000, plus surcharges that may double these dollar amounts;

Statute calls for 120 days to 12 months in jail but requires the judge to impose not less than a minimum mandatory fifteen (15) days in jail. Plus, with high and aggravated jail time can’t get 2-for-1 credit on the jail sentence. State law in Georgia only allows 4 days of good time credit for every 30 days of jail sentence served;

License revocation for five (5) years and habitual violator notice issued and served upon the convicted driver in court, making it illegal for that person to even sit behind the steering wheel of any motor vehicle;

Like a 2nd DUI in GA, Georgia law for 3rd DUI conviction requires the completion 30 days community service, which is 240 hours;

The violator’s name, a summary of the case sentencing and disposition, plus his or her mug shot photo, and street address are published in local newspaper and at violator’s expense;

Declared as a habitual violator, which prohibits even sitting in the driver’s seat of any vehicle for 5 years. Plus, the court requires surrender of all license plates of all vehicles in the driver’s name. These are forwarded to the Georgia Department of Driver Safety (GA DDS);

For a DUI 3rd offense, a mandatory clinical evaluation as mandated under OCGA 40-5-1, and, if treatment is needed, the completion of substance abuse therapy sessions and treatment program at the offender’s expense

Fourth DUI Offense Within 10 Years of Three Prior DUI-OWI-DWI Convictions or Nolo Contendere Pleas (Felony DUI) under OCGA Section 40-6-391 (c)(4)

Fine amount of $1000 at a minimum, up to $5,000, plus surcharges that may double these dollar amounts;

Statute calls for one (1) year to five (5) years in state prison but allows the judge to impose not less than a minimum mandatory jail sentence of ninety (90) days;

License revocation for five (5) years and habitual violator notice will be issued and served upon the convicted 4th offense DUI driver in court, making it illegal for that person to even sit behind the steering wheel of any motor vehicle before regaining driving privileges of some type;

For any DUI felony in GA, our statute for a 4th DUI conviction in the past 10 years requires the completion 60 days of community service, which is 480 hours. A caveat exists, however, wherein in the judge gives 3 years or actual imprisonment in state prison time or more, these community service hours may be suspended by the judge;

The violator’s name, a summary of the case sentencing and disposition, plus his or her mug shot photo, and street address are published in local newspaper and at violator’s expense;

The DUI felon will be declared as a habitual violator, which prohibits even sitting in the driver’s seat of any vehicle for 5 years. Plus, the court requires surrender of all license plates of all vehicles in the driver’s name. These are forwarded to the Georgia Department of Driver Safety (GA DDS);

For a DUI 4th offense a mandatory clinical evaluation as mandated under OCGA 40-5-1, and, if treatment is needed, the completion of substance abuse therapy sessions and treatment program at the offender’s expense

Accountability Courts: Some Repeat Offense DUI Cases may have a DUI Court or Drug Court Alternative

Under the leadership of former Governor Nathan Deal, existing DUI Court and Drug Court options were greatly expanded. These accountability courts recognize the societal need to rehabilitate and treat addicted citizens rather than incarcerate them.  Some of these new laws can be found in these Georgia statutes:

OCGA 15-1-15 – Drug court divisions

(a)(1) “may establish a drug court division to provide an alternative to the traditional judicial system for disposition of such cases”

O.C.G.A. 15-1-18 Council of Accountability Court Judges in Georgia

OCGA Section 40-5-64 – Limited driving permits available for certain offenders

In a nutshell, Georgia accountability judges have the judicial power to fashion incentives for attendees of these intensive outpatient programs, when an attendee has been compliant and graduates. Only recently could a DUI court judge in a State Court provide a participant a conditional driving permit to accommodate some extreme need to operate a vehicle for route-restricted driving. This usually pertains to maintaining employment, and using a vehicle equipped with an ignition interlock device (IID).

Contact Our DUI Lawyers Near Me for Immediate Legal Advice

When you are facing a DUI, it is a criminal accusation that threatens to put a criminal conviction on your record for LIFE. No expungement is possible, and no first offender act is available. With some clients, a six-fold increase in insurance rates have been reported. Contact our award-winning Atlanta DUI Attorneys.

Our three legal book authors and highly experienced DUI lawyer in Atlanta can help most accused citizens find a better solution to a DUI case. Dial 404-567-5515 for a FREE consultation, 24 hours a day, and 7 days a week. William Head, Larry Kohn and Cory Yager have a collective 75 year of DUI defense under our belts.

Additional Helpful DUI Georgia Links:

The New 2019 Implied Consent Notice given by Law Enforcement at a DUI Arrest

Learning About Your Legal Alcohol Level From a BAC Chart

 

Georgia’s Busiest Traffic and DUI Court: Atlanta Municipal Court