2.  Driving With Unlawful Blood Alcohol Level

O.C.G.A. §40-6-391(a)(5) is Georgia's  "per se" DUI statute.  Anyone caught driving with a blood alcohol concentration (BAC) of 0.08 grams % or more is assumed to be so intoxicated that he or she cannot possibly be a safe driver.

Under this section of DUI law, there is no need to prove that a driver was driving poorly or even that he or she was feeling the effects of intoxication.  If you were over the limit and were behind the wheel, and the test result is admitted against you, a jury may convict you, period.  Don't despair if your test was over the limit; a skilled and knowledgeable DUI attorney can persuade the court or jury to disregard the test result in many instances.

Georgia's original DUI law set a 0.15 grams% limit for intoxication, which was endorsed by the American Medical Association at the time.  Since then, lobbying groups funded by big insurance companies have forced the federal government to "strong-arm" state governments into lowering their  "per se" DUI levels.  The U. S. Congress denied states highway construction money until each state passed laws lowering the legal intoxication limit.  Georgia bowed to this federal pressure twice, first lowering the legal limit to 0.12 grams%, and then, in 1994,  to 0.10 grams%. Georgia's limit has been lowered to 0.08 grams%, due to additional federal legislation enacted during the Reagan administration.  Many more drivers will be sent to jail for DUI who were never drunk.

Consider also that all breath tests and blood tests following a DUI arrest are taken an hour or two after driving.   Therefore, the test does not show the blood alcohol level at the time of driving at all.

Legislators think they cured this defect by changing the law to make it a crime to have a 0.08 grams% BAC at any time within three hours of driving.  A similarly worded Pennsylvania law was declared unconstitutional in 1995.  Currently, Georgia law interprets any test given within three hours of driving to be admissible.

Most accused drinking drivers submit to chemical testing of the breath, blood or urine and are charged under both (a)(1) and (a)(5), "DUI less safe" and "DUI per se."  Charging in the alternative is a strategy that makes it easier to convict you.  Prosecutors who do not understand the science of breath or blood testing can argue the importance of the breath test, and, at the same time, argue that the test is unnecessary because the driver was obviously "less safe."

For drivers under the age of 21, the law makes it illegal, for all practical purposes, to drink any amount of alcohol and then drive a car.  The "per se" level for drivers under 21 years old is 0.02 grams%.  This reflects "zero tolerance" policy on youthful offenders.  The problem is that the breathalyzer is not calibrated and the calibration is never checked to detect low levels of BAC.  A good number of young people are being unfairly stigmatized at a crucial period in their lives because of inaccuracies in the breath machines. 

Drivers holding a commercial driver's license (CDL) are subject to a per se level of 0.04 grams% while driving a commercial vehicle.  There are also automatic punishments for CDL holders who are shown to have any amount of alcohol on their breath.

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