Under 21 yrs old | Atlanta DUI lawyer
§ 1:23. Other DUI “per se” classifications—Drivers under the age of 21—Prior law
Substantial changes were made to O.C.G.A. § 40-6-391(k) by the Georgia General Assembly in 1997 and in 2001:
(k)(1) A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.
(2) Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section, provided that any term of imprisonment served shall be subject to the provisions of Code Section 17-10-3.1, and any period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.
(3) No plea of nolo contendere shall be accepted for any person under the age of 21 charged with a violation of this Code section.
(4) The driver's license of any person convicted of violating this subsection shall be revoked as provided by Code Section 40-5-57.1.
Practice Commentary
The requirement under O.C.G.A. § 40-6-391(k)(2) for all community service to be completed may pose problems if the trial court orders 160 or 480 hours of community service. A sentence of 480 hours of community service means that the person must work an average of 8 hours every day for 60 days. See § 1:34, infra, for an explanation.
In Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999), the Supreme Court rejected an equal protection challenge to O.C.G.A. § 40-6-391(k). Barnett argued that because persons over 21 are presumed not to be under the influence with an alcohol concentration of 0.05 or less (O.C.G.A. § 40-6-392(b)(1)), he was denied his right to equal protection of the law under the State and Federal Constitutions. In rejecting this contention, the court found subsection (k) bore a “reasonable relationship” to the legitimate goal of “[p]rotection of the public safety and safeguarding the physical well-being of children.” See also Firsanov v. State, 270 Ga. 873, 513 S.E.2d 184 (1999).
Former O.C.G.A. § 40-6-391(k) provided:
(k) A person under the age of 18 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.04 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended. Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section. No plea of nolo contendere shall be accepted for any person under the age of 18 charged with a violation of this Code section. Contact an Atlanta DUI attorney today for a free consultation.
Substantial changes were made to O.C.G.A. § 40-6-391(k) by the Georgia General Assembly in 1997 and in 2001:
(k)(1) A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.
(2) Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section, provided that any term of imprisonment served shall be subject to the provisions of Code Section 17-10-3.1, and any period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.
(3) No plea of nolo contendere shall be accepted for any person under the age of 21 charged with a violation of this Code section.
(4) The driver's license of any person convicted of violating this subsection shall be revoked as provided by Code Section 40-5-57.1.
Practice Commentary
The requirement under O.C.G.A. § 40-6-391(k)(2) for all community service to be completed may pose problems if the trial court orders 160 or 480 hours of community service. A sentence of 480 hours of community service means that the person must work an average of 8 hours every day for 60 days. See § 1:34, infra, for an explanation.
In Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999), the Supreme Court rejected an equal protection challenge to O.C.G.A. § 40-6-391(k). Barnett argued that because persons over 21 are presumed not to be under the influence with an alcohol concentration of 0.05 or less (O.C.G.A. § 40-6-392(b)(1)), he was denied his right to equal protection of the law under the State and Federal Constitutions. In rejecting this contention, the court found subsection (k) bore a “reasonable relationship” to the legitimate goal of “[p]rotection of the public safety and safeguarding the physical well-being of children.” See also Firsanov v. State, 270 Ga. 873, 513 S.E.2d 184 (1999).
Former O.C.G.A. § 40-6-391(k) provided:
(k) A person under the age of 18 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.04 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended. Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section. No plea of nolo contendere shall be accepted for any person under the age of 18 charged with a violation of this Code section. Contact an Atlanta DUI attorney today for a free consultation.
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