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:
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(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).