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The Elements of a Georgia DUI Case

About Richard Lawson

Understanding the Elements of a Georgia DUI Case:

In Georgia, a person can be charged with Driving Under the Influence if they have an alcohol concentration of .08 grams or more within three hours of driving (from alcohol consumed before driving).  Additionally, a person can be charged with a DUI if they are a less safe driver due to the consumption of alcohol, drugs, inhalants, or the combination thereof.  

As a result, the State can charge a person based on their driving, their ability to drive, or for being over the prescribed “legal limit.”  If convicted of a DUI in Georgia, a person will face the possibility of serving a jail sentence, pay substantial fines and the prospect of losing the privilege to drive.   

Even just the minimum penalties can have drastic consequences that include a license suspension and community service.  Retaining a knowledgeable Georgia DUI lawyer from the very beginning is crucial. The Law Office of Richard Lawson and his team of Georgia DUI Attorneys have more than 20 years of Georgia DUI Defense experience, and Richard Lawson is a former DUI Prosecutor.  Put our experience to work for you! 

What are the Elements of a DUI Case and How are they Proven in Georgia?

There are two elements in a DUI case: driving or operating a vehicle and under the influence of alcohol, drugs, inhalants, or some combination of intoxicants.   

One of the common questions in a DUI case is: do you have to be driving to receive a DUI in Georgia? Although the law defines the crime of driving under the influence as driving a motor vehicle on the road, Georgia Courts have expanded the definition to include being in control of a vehicle in a parking lot.  “Physical Control” also means as little as having the key in the ignition.

The second element of a DUI case is that the driver is under the influence or intoxication. The prosecution has the burden to prove the case beyond all reasonable doubt.  

The Presentation of Evidence is the Means in Which a DUI Case is Proved in Court.  

The presentation of evidence of can include, but is not limited to, the order of alcohol, the manner of driving, the ability of the accused to follow directions, physical appearance, field sobriety testing, chemical testing, and whether a person refused chemical testing.

Field Sobriety Testing – Part of the Elements of a Georgia DUI Case

There are three standardized field sobriety tests, the Horizontal Gaze Nystagmus (HGN) test, the walk and turn test, and the one leg stand.  There are other tests, but none have been studied or validated with a high degree of certainly other than the three standardized field sobriety tests.  

HGN Test:    

The HGN Test (commonly called the eye test) is a test of the small muscles in the eye through a series of exercises conducted by the police officer.  Many people think it is a test of following a pen.  It is not.  Since alcohol, and some drugs, are central nervous system depressants, it affects a person's muscles.  That is why a severely drunk person has wobbly legs.  However, these central nervous system depressants affect the small muscles in the eye, even in situations of slight impairment.  The HGN test is used to detect small movements in the eyes due to the effect of alcohol or drugs on the small muscles in the eye.  Those intoxicants cause those small muscles to become weak, resulting in movement (Nystagmus) in the eye.  The HGN test is considered to be a scientific test.  As a result, it must be administered correctly to have any legal meaning.

Walk and Turn Test:

This is a physical agility test that involves taking eighteen, heel to toe, steps.  There are eight clues that an officer may observe and count against a suspected DUI driver.  Those clues include:

  1. Starting too soon
  2. Missing heel to toe
  3. Improper Turn
  4. Raising arms for balance
  5. Stopping while walking
  6. Wrong number of steps
  7. Losing balance during the instructional stage
  8. Stepping off the line

If a person gets two clues, out of the eight, they considered having failed the test.

One Leg Stand:

This is a physical agility test that involves standing on one foot for thirty seconds.  A suspected DUI driver is told to raise their foot six inches off the ground with their foot pointed forward.  There are four clues that an officer may observe and count against a suspected DUI Driver.  Those clues include:

  1. Swaying
  2. Uses arms for balance
  3. Hopping
  4. Puts foot down

If a person gets two clues out of four, they considered having failed the test.  

Chemical Testing of Breath, Blood, or Urine:

When a police officer has probable cause to make a DUI arrest, he or she will read the driver the Georgia Implied Consent Warning.  This warning describes a person's rights in a DUI case and the requirement to take a State-Administered chemical test.  The officer then designates which test he or she is requesting.  The options include blood, breath, or urine testing.  A suspected driver has a right to refuse testing.  If the accused agrees to the officer's test, then he or she can request an independent test of their choosing.

The breath test used in Georgia is the Intoxilyzer 9000.  Blood and Urine tests are conducted at the GBI Crime Lab.  The usual testing method involves first using a screen test called an Immunoassay test.  If drugs are detected on the screening test, the crime lab will use a Gas Chromatograph or Mass Spectrometry to confirm the results.  The Gas Chromatograph can also provide a person's blood alcohol level.   

Blood testing is considered to be more accurate than a breath test.  However, blood and urine tests as subject to tampering and issues involving the chain of custody of the sample.  If the state cannot prove that a defendant's actual blood or urine was tested, it can lead to potential defenses.  Georgia DUI Lawyers also challenge the qualifications of the phlebotomist who drew the blood and the technicians who conducted the analysis. 

Refusals in Georgia DUI Cases:

A Georgia driver has a right to refuse chemical testing.  However, there are circumstances when a police officer can get a warrant to take a person's blood.  Also, in cases without a chemical test, the state can still prosecute a DUI case.  The evidence used in a DUI Less Safe case includes the manner of driving, the ability to follow officer instructions, physical observations, odor of alcohol on a person's breath or person, balance, and the performance on field sobriety tests. 

A DUI Less Safe case is every much a DUI case as one that has a chemical test.  The direct criminal consequences and punishment is the same as any other DUI.  The collateral consequences are the same, as well.  The driver's license consequences are worse in the case of a refusal.  A person who refuses a chemical test in Georgia faces up to twelve months without a license or limited permit to drive.

The job of a qualified Georgia DUI Attorney is to find all of the factual and legal defenses in our client's cases.   Every attorney in our office is trained in the same field sobriety testing protocols as the officer who arrested our clients.  We use that training to challenge the field sobriety testing procedures used against our clients and the interpretations of testing as well. 

Is Criminal Intent an Element of a Georgia DUI Case?

There are two types of intent: general and specific intent. Specific intent crimes require that the defendant intentionally commits an act and intends to cause a particular result when committing that act. General intent crimes require that the accused only meant to do the act prohibited by law. 

DUI is a general intent crime; the prosecutor only has to prove that you were driving under the influence, not that you had the intent to drive under the influence.  Essentially, a person charged with a DUI must have the intent to do the act that turned out to me a violation of the law, not the intent to break the law itself.  As a result, involuntary driving (such as under the influence of Ambien) is a defense to a DUI in Georgia.  Saying that a person did not mean to drive impaired is not a defense.   

An example of a specific intent crime is burglary. The suspect must have the intention to break into someone's house and commit a crime.   

Misdemeanor DUI in Georgia:

Most Georgia DUI's are misdemeanor offenses.  This includes the first Georgia DUI, the second Georgia DUI, and the Third Georgia DUI.  

That being said, the penalties for a DUI in Georgia increase with each subsequent DUI.  A second or third DUI will result in significant time in jail, loss or license, community service, and the payment of high fines.  A third DUI is a high and aggravated misdemeanor.  As a result, a person must serve every day of their jail sentence.  

For a first Georgia DUI offense, the minimum penalty is:

  • 12 Months' probation
  • 24 hours in jail 
  • 40 hours of community service
  • $300 fine
  • DUI School
  • A clinical evaluation for Alcohol or Drug Dependency
  • License suspension for 120 days to one year 
  • Limited permit to drive for work, school, medical purposes, or for completing conditions of a DUI Sentence (going to community service, treatment, probation, etc.)

For a second Georgia DUI offense, the minimum penalty is:

  • 12 Months' probation
  • 72 hours in jail
  • 240 hours of community service
  • $600 fine. 
  • DUI School
  • A clinical evaluation for Alcohol of Drug Dependency
  • License suspension for up to three years with options for a permit after 120 days with the installation of an ignition interlock device.

For a third Georgia DUI Offense, the minimum penalty is:

  • 12 Months' probation
  • High and Aggravated Misdemeanor
  • 15 days in jail (day for day without “good-time credit”)
  • 240 hours of community service
  • $1000 fine
  • DUI School
  • A clinical evaluation for Alcohol or Drug Dependency
  • License suspension for five years with options for a permit after at least two years, with the installation of an ignition interlock device.

Practice Note: 

Most Georgia courts rarely give the minimum penalty for multiple offense DUI cases.  One of the biggest mistake laypeople make is the assumption that they will receive the minimum sentence.  After a first DUI, the sentence is entirely negotiable.  That is why having the best Georgia DUI Attorney is so important.    

Felony DUI in Georgia: 

When a person gets a fourth DUI in Georgia, it is considered a felony offense.  When convicted of a felony a person loses their civil rights, including the right to vote and own a firearm. 

Additionally, if someone has been declared a habitual violator, for having three DUI's in a five-year period, and is caught driving, they will be charged with driving while being declared HV.  The penalty for driving after being declared HV is up to five years in prison.   

If a DUI driver seriously injures someone else in an accident, they will be charged with Serious Injury by Vehicle.  The potential penalty includes up to fifteen years in prison.  

If a DUI driver kills someone else in an accident, they will be charged with vehicular homicide.  The potential penalty includes up to fifteen years in prison.  

In both a serious injury by vehicle case and a vehicular homicide case impairment is only one element of the crime.  To be found guilty, the prosecution must also prove that the DUI driver was the cause of the injuries or the death.  The driver's actions must be the proximate cause of the injuries or death of another person.  

Plea Agreement or Trial?

The decision to go to trial or settle a case is one hundred percent up to the accused.  However, a sensible client will trust the advice of their Georgia DUI Lawyer.  

We will discuss the pros and cons of going to trial and then the driver can make an informed decision on how they would like to proceed.  If a trial is chosen, we will advise our clients whether to have a trial by jury or a bench trial (trial by the judge only).  Misdemeanor jury trials have six jurors.  Felony trials have 12 jurors.  

In a jury trial, all six or all twelve jurors must reach a unanimous verdict.  The jurors must only concern themselves with the guilt or innocence of the accused, not the potential punishment if a defendant is convicted.  

No person should consider contesting their Georgia DUI Case without first considering the advice of their attorney.   Our attorneys are well-versed in helping our clients choose the best possible defense strategy in their case.  

Contact Us:

Never go it alone when charged with a crime.  The elements of a Georgia DUI Defense are complicated.  There are many possible legal and factual defenses that a layperson cannot pursue on their own.  

Contact our office today so we may help make the process easier and to get the best representation for your case. The Law Office of Richard Lawson and our team of Georgia DUI Attorneys are here to help you 24/7. Let our experience work for you! 

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Choosing the Best DUI Lawyer

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When you are arrested for DUI in Georgia, finding the right Lawyer is Job #1. At the Law Offices of Richard S. Lawson we will investigate your case and find the best possible legal defense to your DUI in Georgia. You are in good hands with Richard Lawson and his associates. We will work tirelessly to help you while compassionately holding your hand throughout the entire DUI Defense Process.

Georgia DUI Defense Attorneys

At the Law Office of Richard S. Lawson, we have offices conveniently located throughout metro Atlanta and throughout Georgia. If we do not have a convenient office, we will come to you. We practice throughout Metro Atlanta and North Georgia. If your case is in an area we do not serve, we will find you an attorney in your area free of charge. Our office is part of a State-wide network of Georgia DUI Lawyers. Contact us 24/7 for immediate legal help. Our attorneys are standing by. Your DUI Case will not defend itself. Your Best Georgia DUI Defense Begins Here!