Monday, December 31, 2012

DUI on a commercial drivers license | Atlanta DUI lawyer

O.C.G.A. § 40-6-391(i) provides:
A person shall not drive or be in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person's blood, breath, or urine. Every person convicted of violating this subsection shall be guilty of a misdemeanor and, in a addition to any disqualification resulting under Article 7 of Chapter 5 of this title, the “Uniform Commercial Driver's License Act,” shall be fined as provided in subsection (c) of this Code section.
See O.C.G.A. §§ 40-5-140 to 40-5-159 for provisions applicable to commercial driver's licenses. Act 44, House Bill 419, effective January 1, 2008, made numerous amendments to the applicable O.C.G.A. sections dealing with persons who possess commercial driver's licenses. These changes can be found at
Practice Commentary
Many attorneys are unfamiliar with the impact that a DUI arrest or conviction can have on a person who uses a commercial driver's license. The issuance of the DDS Form 1205 (for ALS suspension) on either a refusal or a "per se" offense effectively "suspends" the CDL driving privileges. Until the FULL plastic commercial license is reinstated, a commercial driver cannot LEGALLY operate a commercial vehicle. Furthermore, a "work permit" (limited operating permit issued after a nolo contendere or guilty plea to DUI) is not a proper license for driving a commercial motor vehicle. Additionally, some other serious driving offenses (such as reckless driving or hit and run) can cost the commercial driver his or her right to operate a big rig.

Aerosol glue and vapors | Atlanta DUi lawyer

At the 1996 Session of the General Assembly, the legislators passed S.B. 560, which was codified as O.C.G.A. § 40-6-391(a)(3). S.B. 560 expanded O.C.G.A. § 40-6-391 to include in the crime of DUI driving under the influence of any glue, aerosol or other toxic vapor to the extent that it is less safe for the person to drive. To prove such cases, the State will need expert testimony to establish quantitative levels of such chemicals in sufficient quantities to cause “less safe” driving, not just the mere presence of toxic vapors in the suspect's blood. No “charts” or “per se” limits exist for toxic vapors, so don't allow scientifically unreliable evidence to convict your client. Cf. Carr v. State, 222 Ga. App. 776, 476 S.E.2d 75 (1996).
Once again, defense counsel must bring in an expert witness for the defense to refute any "wildcat" claims by GBI personnel that only a certain level of such chemicals in a blood test will cause "impairment." Defense counsel should challenge these claims based upon correlation to the time of driving, experience level and actual expertise of the GBI witness, or possibly based upon the client's incidental exposure to these "vapors" during work or at home. Contact an atlanta dui attorney for a free consultation.

Sunday, December 30, 2012

Equal protection grounds for DUI | Atlanta DUI lawyer

Subsection (6) provides that any person driving or in actual physical control of a motor vehicle who has any amount of marijuana or a controlled substance or a derivative or metabolite (i.e., a “by-product” created by the body's elimination of the contraband substance) (see O.C.G.A. § 16-13-21) in the blood is guilty of DUI-drugs (“per se”). It seems clear that the mere presence of a prescription drug in a driver's blood stream—where the person does not have a prescription in his or her name—will constitute a violation of this provision. Query: How does the arresting officer know whether the Defendant had a valid prescription or not? Absent a roadside admission or incriminatory for a drug statement caught on videotape, this proof may be difficult for the prosecutor to procure.
Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), has put O.C.G.A. § 40-6-391(a)(6) “on hold.” Love held that O.C.G.A. § 40-6-391(a)(6) (DUI by driving with the mere presence of a drug, without need of proof of impairment) was too broadly drawn, so as to proscribe both legal users and illegal users of marijuana. The Supreme Court held that this differentiation violated the equal protection clause under a “rational basis scrutiny” test. This violated the equal protection clause of both the Georgia and United States Constitutions, the high court held.
We must hope that prior atrocious decisions get better appellate treatment in light of Love, for the sake of justice. See, for example, Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999) (vehicular homicide and VGCSA conviction on urine (metabolites of marijuana ONLY) with no apparent proof of impairment and a plausible explanation at the accident scene for the cause of the accident). Also see, Walker v. State, 239 Ga. App. 831, 521 S.E.2d 861 (1999). Contra, Webb v. State, 223 Ga. App. 9, 476 S.E.2d 781 (1996).
Some legal authorities say Love wiped out (a)(6) entirely. Yet, several courts have permitted convictions of persons under (a)(6) where drugs other than marijuana were found in the person's blood or urine. State v. Beck, 275 Ga. 688, 572 S.E.2d 626 (2002); Keenum v. State, 248 Ga. App. 474, 546 S.E.2d 288 (2001); Carthon v. State, 248 Ga. App. 738, 548 S.E.2d 649 (2001) (Handschuh v. State, 270 Ga. App. 676, 607 S.E.2d 899 (2004)).
Prior case law had upheld this per se statute. In Ryals v. State, 215 Ga. App. 51, 449 S.E.2d 865 (1994) (overruled on other grounds), the defendant was charged with driving under the influence of marijuana [O.C.G.A. § 40-6-391(a)(6) at the time codified as O.C.G.A. § 40-6-391(a)(5)]. The Court of Appeals held that the State does not have to prove that the defendant was a less safe driver. The court observed that the legislature had amended the statute to further public policy that driving under the influence of any amount of a controlled substance is a crime, regardless of how it affects driving ability. [Accord, Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995); Lester v. State, 253 Ga. 235, 320 S.E.2d 142 (1984)].
The constitutionality of this provision, on a challenge of vagueness, has been upheld. Steele v. State, 260 Ga. 835, 400 S.E.2d 1 (1991).
But in Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), the Georgia Supreme Court held that O.C.G.A. § 40-6-391(a)(6) violated the equal protection clause of the Georgia and United States Constitutions because of the arbitrary distinction drawn between people driving with any amount of medically prescribed marijuana (who can only be convicted for being less safe), and people driving with any amount of unsanctioned marijuana (who can be convicted of being less safe and of per se DUI).
Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), does not defeat a conviction for reckless driving or for vehicular homicide with the predicate serious driving offense being reckless driving. This is despite the “reckless” conduct being that the driver operated a car after having ingested marijuana. Ayers v. State, 272 Ga. 733, 534 S.E.2d 76 (2000).
Presently, unlike in Virginia, Nevada, and over a dozen other states, the Georgia Legislature has not yet tried to legislate a “per se” impairment level for various controlled substances. Hence, no “inferences” presently exist whereby the prosecutor can convict with expert testimony to “interpret” how a certain quantity of “nanograms” of a drug “equal” impairment. Kerr v. State, 205 Ga. App. 624, 423 S.E.2d 276 (1992).
In Head v. State, 303 Ga. App. 475, 693 S.E.2d 845 (2010), after a stipulated bench trial based upon the transcript of a hearing held upon his demurrer, Head was convicted of DUI of any drug to the extent that it was less safe for him to drive, in violation of O.C.G.A. § 40-6-391(a)(2), and driving with a controlled substance in his blood, in violation of O.C.G.A. § 40-6-391(a)(6). His DUI drugs per se conviction merged into his DUI-less safe conviction. In his appeal, Head contended that the evidence was insufficient to support his DUI-less safe conviction, and that O.C.G.A. § 40-6-391(a)(6) violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. The Court of Appeals reversed his DUI less safe conviction finding that the evidence was insufficient to support this conviction. However, the court rejected Head's constitutional challenge to O.C.G.A. § 40-6-391(a)(6). Because Head's O.C.G.A. § 40-6-391(a)(6) conviction was merged into his DUI-less safe conviction for sentencing purposes, the case was remanded to the trial court for resentencing so that Head on the DUI drug per se charge.
With regard to his conviction for violating of O.C.G.A. § 40-6-391(a)(6), Head argued that the trial court erred in denying his demurrer raising a constitutional challenge to O.C.G.A. § 40-6-391(a)(6). Head argued that O.C.G.A. § 40-6-391(a)(6) violates the equal protection provision in that it arbitrarily distinguishes between those who are legally entitled to use cocaine and those who are not. See O.C.G.A. § 40-6-391(b). Head presented evidence that eye drops containing cocaine hydrochloride, a solution form of cocaine otherwise used illicitly, may lawfully be used by ophthalmologists conducting certain types of surgical and diagnostic procedures. The Court of Appeals did not address this issue. Instead, it held “this case is directly controlled by Keenum v. State, 248 Ga. App. 474, 546 S.E. 2d 288 (2001).”
In Sandlin v. State, 307 Ga. App. 573, 707 S.E.2d 378 (2011), after a jury trial, Sandlin was acquitted of driving under the influence of drugs to the extent that he was less safe [O.C.G.A. § 40-6-391(a)(2)], but was convicted of driving under the influence of a controlled substance [O.C.G.A. § 40-6-391(a)(6)]. On appeal, one of the issues raised by Sandlin was that the trial court erred in overruling his demurrer challenging the constitutionality of O.C.G.A. § 40-6-391(a)(6). At trial, a GBI forensic toxicologist testified that Sandlin's blood contained metabolites of marijuana and alprazolam, which is commonly referred to as Xanax.
O.C.G.A. § 40-6-391(a)(6) provides that a person with any amount of marijuana or a controlled substance in his or her urine or blood can be convicted of driving under the influence. Under O.C.G.A. § 40-6-391(b), a person who legally uses a controlled substance can only be convicted of driving under the influence if that person “is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.” Sandlin argued that the statute denied him equal protection under the law because it disparately treats legal and illegal users of alprazolam.
The Georgia Court of Appeals reversed Sandlin's conviction for driving under the influence of a controlled substance under O.C.G.A. § 40-6-391(a)(6) relying on Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), where the Georgia Supreme Court held O.C.G.A. § 40-6-391(a)(6) was unconstitutional as it pertained to persons with detectable levels of marijuana in their systems. As in Love, the legislative distinction between users of legal and illegal alprazolam was not directly related to the public safety purpose of the legislation. Consequently, the statute was arbitrarily drawn and was an unconstitutional denial of equal protection.

It doesn't matter if you have a subscription | Atlanta DUI lawyer

O.C.G.A. § 40-6-391(b) provides:
(b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use. Contact an Atlanta Dui attorney for a free consultation.

Notable changes involving DUI law in Atlanta | Atlanta DUI lawyer

The 2001 legislation also provided that a second conviction within five years results in a minimum jail sentence of 72 hours, rather than 48 hours; that community service is increased from 80 hours to 30 days; and that the license suspension increases to a hard 12 month suspension followed by six months of IID restriction. Additionally, the license plates of all cars registered to a person convicted of a second offense in five years must be surrendered during the hard suspension period. A third DUI conviction within five years mandates that the offender serve at least fifteen days rather than ten days; a portion of the sentence must now be probated to subject the offender to conditions of probation relating to ignition interlock devices. As with a second offense within five years, minimum community service is 30 days rather than 120 hours.
Also in 2001, an “aggressive driving” statute that carries a six point penalty was enacted, and the presumption language of O.C.G.A. § 40-6-392 was replaced with “inference” language. An open container law was enacted that prohibits anyone in the vehicle (as opposed to just the driver) from having an open container.This bill added a new O.C.G.A. § 40-6-15, which makes it a misdemeanor to knowingly operate a vehicle when the registration is suspended, cancelled or revoked, and further added that operating a vehicle in violation of § 40-6-15 is subject to the mandatory driver’s license suspension/habitual violator offense(s) set forth in § 40-5-54.
House Bill 1169, effective May 9, 2002, added a new O.C.G.A. § 36-32-10.2, relating to jurisdiction of municipal courts, and further amended § 17-7-71 to allow the prosecutor in any court to amend “any citation” prior to trial, thereby eviscerating the earlier cases that had stated that a Uniform Traffic Citation could not be amended (only a subsequent accusation could add/delete charges). Contact an Atlanta DUI lawyer for a free consultation.

Equal protection law Atlanta DUI lawyer

In State v. Kachwalla, 274 Ga. 886, 561 S.E.2d 403 (2002), the Supreme Court of Georgia found that the decision in Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), was concerned only with the disparate treatment afforded those drivers charged with the per se violation found in O.C.G.A. § 40-6-391(a)(6), and the Court upheld the constitutionality of O.C.G.A. § 40-6-391(a)(2) against the charge it violated equal protection. See also State v. Pittmon, 275 Ga. 139, 562 S.E.2d 185 (2002).
The Kachwalla Court was faced with an equal protection challenge based on the fact that “DUI—Prescription Drugs” calls for a higher standard under subsection (b) than under the other subsections. The Supreme Court of Georgia avoided the equal protection challenge altogether by concluding that “less safe to drive” and “rendered incapable of driving safely” were equivalent standards—legally, historically, and semantically. Therefore, a defendant accused of violating the statute which prohibited a person from driving while under the influence of any drug to the extent it was less safe for defendant to drive did not suffer disparate treatment in violation of equal protection, even though another statute set forth that a person charged with DUI who was legally entitled to use the drug other than alcohol did not commit DUI unless such person was rendered incapable of driving safely.
Prior court cases seemed to acknowledge that the difference in terminology (“less safe” being applied to alcohol and “incapable of driving safely” being applied to proscribed drugs) meant a higher standard of proof for drug cases. Carr v. State, 222 Ga. App. 776, 476 S.E.2d 75 (1996).
The Georgia Court of Appeals has been very liberal (for the prosecution) in upholding highly questionable convictions on some DUI-drug cases. See, for example, Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999); Doster v. State, 259 Ga. App. 605, 578 S.E.2d 262 (2003); c.f. Savage v. State, 252 Ga. App. 251, 556 S.E.2d 176 (2001). Compare to the favorable result in Bowen v. State, 235 Ga. App. 900, 510 S.E.2d 873 (1999).
Practice Commentary
Based on the Kachwalla decision, a defense attorney in any “less safe” DUI alcohol case should be able to argue to the jury that “less safe to drive” means “rendered incapable of driving safely.” Furthermore, the defense should request a jury instruction that “less safe to drive” means “rendered incapable of driving safely.” However, a trial judge may opt to not give the Kachwalla language in a DUI-alcohol case, despite the more descriptive language that would undoubtedly assist a jury. Drogan v. State, 272 Ga. App. 645, 613 S.E.2d 195 (2005). The Kachwalla opinion, if applied to all cases of "impaired" driving (alcohol or drugs), would bring Georgia more in line with other states in requiring some articulable standard for the jury to differentiate between an impaired driver and either a drinking driver or a driver who was "within the therapeutic" level for a prescribed drug.

Drug recognition officer | Atlanta DUI lawyer

While any evidence of driving with a contraband (i.e., illegal for all purposes) substance in a driver's system constitutes driving under the influence of a drug, O.C.G.A. § 40-6-391(a)(2) requires proof beyond a reasonable doubt that the defendant is less safe because of the quantity or concentration of the drug in his system at the time of driving.
The statute does not distinguish between prescribed and non-prescribed drugs. Indeed, many types of over-the-counter drugs can impair a person's motor skills and lead to a possible DUI-drugs conviction. Defense counsel must tailor the defense to the TYPE of substance and call experts to help refute the state's case.
Additionally, a new advanced level police-training course called the "D.E.C." program (see § 6:21, infra) is being utilized to add "Drug Recognition Experts" to most police departments. Eventually, this may lead to a much higher incidence of DUI "drug" arrests, assuming that a sufficient number of officers receive and use the training. As of 2007, fewer than 3% of all patrol officers in Georgia possess such advance training.
The Georgia Supreme Court has upheld a first-degree vehicular homicide "reckless driving" charge based upon evidence of "metabolites" of marijuana in the defendant's system. Under both federal law and Georgia law, marijuana is a "contraband" substance. Hence, any trace of marijuana in the defendant's system, even if insufficient evidence of impairment existed, is enough to support a DUI-drugs "predicate offense" for the felony vehicular homicide offense. This is regardless of whether the defendant consumed the marijuana legally or illegally. Ayers v. State, 272 Ga. 733, 534 S.E.2d 76 (2000). Also see Keef v. State, 220 Ga. App. 134, 469 S.E.2d 318 (1996), a dismal appellate case often cited by the State. Defense counsel's task is to use every available "tool," motion, and tactic to either totally exclude any blood test indicating the contraband substance, or to bring in expert testimony to cast doubt on the reliability of the testing methodology, equipment qualifications of the GBI lab personnel, or in the identity of the blood or urine sample being used as your client's forensic sample.

Less safe DUI drugs | Atlanta DUI lawyer

O.C.G.A. § 40-6-391(a)(2) provides:
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
* * *
(2) Under the influence of any drug to the extent that it is less safe for the person to drive[.]
Prior to the Supreme Court's ruling in Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), this was probably the least used DUI Code section. The “less-safe” DUI drugs statute, O.C.G.A. § 40-6-391(a)(2), requires proof that the quantity or amount of the prescribed or contraband or over-the-counter drug in the person's system caused impairment or rendered the accused to be a “less safe” driver. See Webb v. State, 223 Ga. App. 9, 476 S.E.2d 781 (1996). But see Walker v. State, 239 Ga. App. 831, 521 S.E.2d 861 (1999), for an atrocious conviction followed by an even more atrocious appellate decision.
Most reported cases involving prescribed medications arise as a result of impairment by both alcohol and drugs. With more and more police officers requesting blood tests from DUI suspects, an increase in the number of “combined effect” cases can be expected.
Additionally, as of January 1, 2008, changes in Georgia law under O.C.G.A. § 40-5-75 pertaining to loss of driving privileges for certain drug-related convictions (whether behind the wheel or not) have raised the stakes for aggressively fighting cases with multiple criminal counts that MAY carry mandatory CONSECUTIVE driver's license suspensions. As of January 1, 2008, any "drug" convictions will be tacked on to the end of any other license suspensions. See O.C.G.A. § 40-5-75(i).Contact an atlanta dui lawyer today.

Atlanta DUI lawyer | Atlanta DUI lawyer

§ 1:11. Driving with an unlawful alcohol level—“Per se” alcohol DUI—O.G.C.A. § 40-6-391(a)(5)—Misdemeanor—Elements
When the State alleges a violation of O.C.G.A. § 40-6-391(a)(5), it must prove that the defendant was “driving or was in actual physical control of a moving vehicle.” Once again, this means that the State must prove “the number” shown in the alcohol test result was above 0.08 grams percent. Miller v. State, 238 Ga. App. 61, 516 S.E.2d 838 (1999); Mullinax v. State, 231 Ga. App. 534, 499 S.E.2d 903 (1998) ; Kitchens v. State, 258 Ga. App. 411, 574 S.E.2d 451 (2002). Slight evidence may be sufficient to carry the day for the State, if defense counsel does not successfully keep this out of evidence. Goodson v. State, 242 Ga. App. 167, 529 S.E.2d 175 (2000); Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000). Under prior Georgia law, the prosecution was required to prove that any driver 18 and older had a blood alcohol concentration of 0.10 grams or more within three hours after driving. Changes to the law in 1997 and 2001 forever changed Georgia's law on this per se limit.
The State also has to prove that the alcohol was consumed prior to or during driving. This element of proof is often lacking in accident cases or in any scenario where the driver can't be positively identified or placed behind the wheel of the vehicle within a 3-hour window of the test being taken.
For example, in Norton v. State, 280 Ga. App. 303, 640 S.E.2d 48 (2006), an officer was dispatched to a one vehicle collision at around 2:30 a.m. in the morning where the driver had lost control of the vehicle, crossed to the opposite side of the road, and struck an embankment. The back end of the vehicle was partially obstructing the roadway. Two officers found the Defendant lying on the side of the road less than one half of a mile from the scene of the collision. Defendant stated that she had lost control of her vehicle, driven into the embankment, and then left to seek help. Based on her physical manifestations, Alco-sensor test and performance on field sobriety tests, Defendant was arrested for DUI less safe alcohol. She agreed to a breath test after implied consent was read and had a breath alcohol content of 0.135.
In reversing the conviction for the DUI per se conviction, the Court of Appeals noted that the State did not put forth sufficient evidence that Defendant had driven her vehicle within three hours prior to the breath test being administered. The officers did not know when the collision actually occurred. Additionally, at a minimum there was no evidence introduced at trial of a “fresh accident scene” such as evidence of a warm or running engine to show Norton's recent operation of the vehicle.
Likewise, in Peters v. State, 281 Ga. App. 385, 636 S.E.2d 97 (2006), the Court of Appeals found evidence insufficient to show that a Defendant's blood alcohol level exceeded the legal limit within three hours of when he had last had control of a moving vehicle. The State submitted no evidence about the time blood was drawn at the hospital, and no circumstantial evidence from which the time of the blood draw could be inferred. Additionally, no evidence was presented by the State showing when the officer arrived at the location after receiving the dispatch; how long he remained at the scene conducting his investigation, the amount of time it took to drive from the scene to the hospital and how long he was required to wait before the lab technician drew Defendant's blood.
In Stadnisky v. State, 285 Ga. App. 33, 645 S.E.2d 545 (2007), Defendant hit another person's car, which made his own car inoperable. The first officer arrived within five minutes of dispatch of the accident and asked both parties not to leave until a second officer arrived. When the second officer arrived, the first officer had left the scene. The second officer noted that Defendant had bloodshot eyes and smelled strongly of alcohol. Defendant was arrested for driving under the influence, read implied consent, and agreed to take the State's breath test approximately one and one-half hours after the second officer had been dispatched to the location. The second officer determined that the breath test was conducted within three hours for the per se DUI because the original dispatch concerning this accident occurred approximately one hour and forty minutes earlier.
The Court of Appeals rejected the argument that the conviction for DUI per se could not be sustained because the State failed to eliminate the possibility that he consumed alcohol after his driving had ended. The court held that based on the record, it could not say that the trial court's decision was clearly erroneous. The State does not have to eliminate every possibility of innocence in order to achieve a conviction in a criminal case. The State must introduce evidence that proves guilt beyond a reasonable doubt, each element of the crime as prescribed in the statute.
Practice Commentary
This case seems to allow the State to shift the burden of proving all elements of the per se offense to the defense. One "weak" element in this case was the lack of proof of the TIME of driving. The radio dispatcher could not have observed any driving or any accident. Timely objections may have changed this outcome.
In O'Connell v. State, 285 Ga. App. 835, 648 S.E.2d 147 (2007), two "911" BOLO calls of a "gray Thunderbird with a possible drunk driver" at a mobile home park led two separate officers to look for defendant's vehicle. The officers never saw "any vehicle in motion," but a second officer's visit to the mobile home revealed the Thunderbird parked in front. The hood was still warm. The first officer had been by there less than twenty minutes before when there was no vehicle there.
When officers approached and directed defendant outside to talk, he was so drunk inside the trailer that he could not unlatch the front door. The defendant suggested that officers "come on in" by going to the rear door. In his 0.217 stupor, defendant told the officers that he had driven and that he had not driven the car. He admitted to having had two to three drinks.
The Georgia Court of Appeals held that there was sufficient circumstantial evidence to show that defendant's blood alcohol level exceeded the legal limit within three hours of the time when he was in actual physical control of a moving vehicle. This evidence included defendant's admission of drinking, the warmth of the hood of his car, and evidence that defendant had consumed alcohol before driving based (circumstantially) upon his degree of intoxication less than twenty minutes after driving ended, despite the fact that the officers did not know when defendant had initially started drinking.
For cases made July 1, 1997 and after, the “per se” level for drivers under age 21 was lowered to 0.02 grams percent. For commercial truck operators age 21 or over, the BAC level of 0.04 or more supports a conviction of “per se” DUI.
The three-hour “window” only applies to the State's pursuit of a per se count against either drivers under the age of 21 [pursuant to O.C.G.A. § 40-6-391(k)], or for adults age 21 or over who are charged with a violation of O.C.G.A. § 40-6-391(a)(5).
The statutory provisions dealing with the per se law for operators of commercial vehicles do not allow the same 3-hour window for proof of a test result. Hence, the State will be required to prove the 0.04 (or more) reading at the time of driving. Moreover, driving or actual physical control within the three-hour time frame must be proven by the State. This can be proven by circumstantial evidence. Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000).
In Abelson v. State, 269 Ga. App. 596, 604 S.E.2d 647 (2004), the State failed to establish that the breath test result was obtained within three hours. Therefore, the per se count did not support the court's conviction at a bench trial.
The Court of Appeals recently found that O.C.G.A. § 40-6-391(a)(5) does not require a chemical test performed upon the suspected DUI driver within three hours in order to sustain a “per se” conviction. In State v. Allen, 256 Ga. App. 798, 570 S.E.2d 34 (2002), the Court held that expert testimony utilized by the State could be used to establish the alcohol concentration during the “relevant time period.” However, the Allen Court did not address the requirements in O.C.G.A. § 40-5-55(a) or O.C.G.A. § 40-5-67.1(a) mandating the chemical test be performed “as soon as possible” as it was not properly raised on appeal.
Additionally, the issue of "retrograde extrapolation" by utilizing "Widmark's Formula" is a hotly-contested area of forensic law in DUI-alcohol cases. The world's greatest scientific minds have warned of the dangers of attempting to make precise calculations of a "number," without allowing for variability in both the defendant's rate of elimination and in factual data supporting the estimates. A.W. Jones, "Inter-Individual Variation in the Disposition and Metabolism of Ethanol in Healthy Men," Alcohol, vol.1, pp. 385-391 (1984); Rod G. Gullberg, "Considering Measurement Variability when Performing Retrograde Extrapolation of Breath Alcohol Results," Journal of Analytical Toxicolgy, vol. 18, pp. 126-127 (1994); Kurt Dubowski, "Absorption, Distribution, and Elimination of Alcohol: Highway Safety Aspects," 10 Journal of Studies on Alcohol, pp. 98-106 (1985).
It should be noted that where the State brings a per se DUI count, there will usually be a “less safe” count also. This means that even if the test result is suppressed, the State may still proceed under the alternative “less safe” count on the remaining evidence in the case. See Daniel v. State, 231 Ga. App. 125, 497 S.E.2d 656 (1998). In some cases, loss of the chemical test results will end the prosecution for DUI. In others, overwhelming evidence of impairment will seal the fate of the drunk driver even for a “refusal” case with no field tests. Boyd v. State, 259 Ga. App. 864, 578 S.E.2d 472 (2003).
O.C.G.A. § 40-6-391(a)(5) does not require that a person be tested within three hours. The statute provides that it only needs to be established that the defendant's blood alcohol concentration was at or above the “per se” limit during the three-hour period after he ceased driving or exercising actual physical control of the vehicle. Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000). The State will need an expert witness (toxicologist) to use retrograde extrapolation to establish a “likely” range of blood alcohol levels for the person driving. State v. Allen, 256 Ga. App. 798, 570 S.E.2d 34 (2002). As a defense attorney, you must bring in a defense expert to show the error in such "estimates" or be prepared to see your client be convicted.
Practice Commentary
In adding a new type of DUI for inhaling toxic vapors, the legislature renumbered the old UBAL statute from (a)(4) to (a)(5). This has opened the door for targeted demurrers to be filed in response to faulty UTCs and accusations. These errors often are grounds for an acquittal or elimination of changes, depending on when and how the defense challenge is asserted. Contact an Atlanta DUI lawyer today for a free consultation.

DUI per se | Atlanta DUI lawyer

O.C.G.A. § 40-6-391(a)(5) [the so-called “per se” DUI, previously codified as O.C.G.A. § 40-6-391(a)(4)] provides:
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
* * *
(5) The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended[.]
The State MUST have an alcohol test result in evidence to be able to maintain this count. “Less safe” driving is immaterial to a DUI charge under this Code section. This “per se” DUI statute is sometimes call driving “UBAL,” or “driving with an unlawful blood alcohol level.” Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995); Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).
The overwhelming majority of DUI prosecutions have a chemical sobriety test result as part of the evidence of the case. This is because most drivers agree to take the State's test. However, in taking the test, the driver may be providing the State with its strongest evidence. Not only will test readings of 0.08% or higher for persons age 21 or over support a case under Georgia's per se DUI, but the test score will typically be a key part of the evidence in the companion “less safe” DUI case. See Kitchens v. State, 258 Ga. App. 411, 574 S.E.2d 451 (2002). This is despite excellent wording in a few cases that tends to infer that the “test result” is not an essential part of the evidence in a “less safe” DUI case. Evans v. State, 253 Ga. App. 71, 558 S.E.2d 51 (2001); Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995).
Drivers under age 21 arrested on or after July 1, 1997 have a “per se” level of 0.02 grams percent. See § 1:23, infra, for more information regarding drivers under age 21.
Commercial vehicle operators maintain a 0.04 grams percent “per se” level under O.C.G.A. § 40-6-391(k). If the commercial driver is under age 21, however, the 0.02 grams percent BAC level is also applicable. See § 1:22, infra, for more information regarding drivers behind the wheel of a commercial rig.
In Bohannon v. State, 269 Ga. 130, 497 S.E.2d 552 (1998), the Georgia Supreme Court upheld the constitutionality of O.C.G.A. § 40-6-391(a)(5). The majority noted that the Legislature could rationally punish people for having an unlawful blood-alcohol concentration within three hours of driving. Yet, the dissent held that the statute should be struck down as void for vagueness because an individual should not be required to predict when and whether an unlawful alcohol level would be reached within three hours of driving. Some other states have sided with the dissent's position. See Com. v. Barud, 545 Pa. 297, 681 A.2d 162 (1996).

Atlanta Dui lawyer not enough for less safe | Atlanta DUI lawyer

Although exceedingly rare, the appellate courts in Georgia have occasionally overturned a conviction on a “less safe” DUI, as codified in O.C.G.A. § 40-6-391(a)(1). A quick summary of some key cases will show the level of “lack of proof” that has been required:
In Allen v. State, 257 Ga. App. 246, 570 S.E.2d 683 (2002), a conviction of Mr. Allen, (the driver) was overturned when the evidence admitted at trial consisted of: (1) the smell of alcohol; (2) a “positive” Alco-sensor result; (3) the trooper saying he “could tell he had been drinking”; (4) Intoxilyzer readings of 0.079 and 0.078. The Court of Appeals seemed to be troubled by the lack of traditional “manifestations of impairment” and the fact that no evidentiary alcohol test revealed a level associated with “an inference of impairment.” Although the trooper gave his opinion that Allen was “less safe” to drive, this opinion was not supported by competent evidence. In addition, because the officer did not see the vehicle while it was driving and the Prosecutor had no other witnesses as to the manner of driving, the mere fact that a wreck had occurred did not suffice. Contact an Atlanta DUI lawyer today if you need help with your case.
In Ricks v. State, 255 Ga. App. 188, 564 S.E.2d 793 (2002), the defendant was stopped for speeding in Clayton County by a DUI task force officer. After first denying consumption of any alcohol, Ricks admitted “to drinking one beer.” An Alco-sensor was the only field evaluation, and it was “positive” for alcohol. Arrest followed immediately, with no more field tests being offered. At the station, Ricks took an Intoxilyzer test that revealed 0.052 and 0.055. Despite being under age 21, the State proceeded only on the “less safe” DUI case. At trial, the typical manifestations of an impaired driver were lacking: no unsteadiness on his feet, no slurred speech, no difficulty exiting the vehicle, no belligerence, and no inability to understand instructions. In fact, outside of the speeding, the Alco-sensor, the smell of alcohol, the reluctant admission of drinking, and “being under 21,” only eyes that were a “little bit red and glassy” constituted the officer's “proof” of impairment. Accord, Peck v. State, 245 Ga. App. 599, 538 S.E.2d 505 (2000) (no testimony of defendant's manner of driving or ability to drive); Hollis v. State, 234 Ga. App. 269, 505 S.E.2d 837 (1998) (Evidence of atrocious driving, but no evidence it was caused by alcohol impairment); Davis v. State, 206 Ga. App. 647, 426 S.E.2d 267 (1992) (wreck by teenager who was observed drinking “from a beer can,” he testified it was water, and his boast to teenage friends of “smoking marijuana” earlier were not supported by negative lab test results from blood drawn 3 hours later); Bell v. State, 197 Ga. App. 175, 398 S.E.2d 29 (1990) (smell of alcohol on breath is insufficient without more corroborating evidence of impairment); State v. Speir, 189 Ga. App. 254, 375 S.E.2d 298 (1988) (defendant not present at scene when police arrived, but was first observed at hospital); Groom v. State, 187 Ga. App. 398, 370 S.E.2d 643 (1988) (quantity of beer alone without proof of size and time span of consumption is insufficient). Contact an Atlanta Dui attorney today for a free consultation.