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.
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.
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