Georgia DUI Defense
A Georgia DUI arrest starts two clocks at once. The criminal case is one. The administrative case against your driver’s license is the other, and it moves much faster. Knowing which deadline applies to you, and what the State can prove, is the difference between managing a bad night and losing your license.
Kip Shepherd has defended DUI cases in Georgia for more than 30 years and began his career as a prosecutor, so he knows how the State assembles a DUI file from the traffic stop forward. A DUI is a criminal charge, handled alongside the rest of our Georgia criminal defense work.
What the State Must Prove Under OCGA § 40-6-391
Georgia’s DUI statute, OCGA § 40-6-391, makes it illegal to drive or be in physical control of a moving vehicle while under the influence of alcohol, drugs, or a combination of them. The State can prove the charge in more than one way, and a citation often lists more than one theory. The theory the State chooses decides what evidence it needs and what your defense looks like.
Per Se Limits and the Less-Safe Driver Theory
Georgia sets a per se limit of 0.08 blood alcohol concentration for drivers 21 and older, 0.04 for commercial drivers, and 0.02 for drivers under 21. At or above the limit, the State does not have to prove that you drove badly. It only has to prove the number and that you were in control of the vehicle.
DUI Less Safe vs. Per Se
The less-safe theory works differently. Under that theory, the State must prove that alcohol or drugs made it less safe for you to drive, even if your blood alcohol was below the limit or you never submitted to a test. Prosecutors often charge both theories so a suppressed breath test does not end the case. That is why the officer’s observations, the driving, and the field sobriety tests carry so much weight.
The 30-Day Administrative License Suspension Window
If you refused a chemical test, or submitted and tested over the limit, the Department of Driver Services will move to suspend your license. You have 30 calendar days from the date of your arrest to request an administrative license suspension hearing under OCGA § 40-5-67.1. Miss it and the suspension takes effect on the 31st day with no hearing and no second chance. This is the most time-sensitive deadline in a Georgia DUI case, and it exists even if the criminal charge is later reduced or dismissed.
The ALS Hearing Is Not the Criminal Case
The administrative hearing and the criminal case are separate proceedings with separate rules and burdens. The ALS hearing decides whether the State may suspend your driving privileges. The criminal case decides whether you are guilty. An issue that is fatal to one may not matter in the other, and evidence developed in one often surfaces in the other. Treating them as one case is a common and expensive mistake.
Implied Consent and the Right to Refuse
Georgia’s implied consent law, OCGA § 40-5-55, treats driving as consent to chemical testing of your breath, blood, or urine. You may refuse, but a refusal is not free. It triggers its own license suspension, and in Georgia the fact of a refusal can be used against you in the criminal case. Officers must read the implied consent notice before asking for a sample, and whether that notice was given correctly is one of the first things worth checking.
Field Sobriety Tests and Their Reliability
The standardized field sobriety tests, horizontal gaze nystagmus, the walk and turn, and the one leg stand, are not a blood alcohol measurement. They are divided-attention and balance exercises, and their value depends on how the officer administered and scored them. The manual that trains officers sets out specific instructions, clues, and conditions. When the officer departs from that protocol, or the video does not match the report, the test loses the weight the State wants it to carry.
The details worth reviewing on video usually include:
- Whether the instructions were given as the manual requires
- Whether the surface was level, dry, and adequately lit
- Whether the officer scored clues visible on the recording
- Whether medical or physical conditions affected your performance
The Intoxilyzer 9000 and Maintenance Records
Georgia uses the Intoxilyzer 9000 for breath testing. The law requires the test to be performed by a trained operator using GBI-approved methods on an instrument that carries a valid certificate of inspection and calibration. Those records are obtainable, and an instrument’s maintenance history is a standard target for the defense. A breath result is only as good as the machine that produced it and the records showing it worked that day.
DUI Drugs
For drugs there is no per se number. The State has to prove impairment through the officer’s observations, the driving, and a blood test. Georgia also treats the presence of marijuana or a controlled substance in your blood as its own basis for a charge, so a positive test can support a DUI even when the driving looked fine. Blood draws raise their own questions: who drew the sample, how it was stored, and what the laboratory actually tested for.
Under 21: Zero Tolerance Under OCGA § 40-6-391(k)
Georgia’s zero tolerance provision, OCGA § 40-6-391(k), applies to drivers under 21 and sets the limit at 0.02, far below the adult limit. A conviction carries a license suspension and mandatory classes, and a second offense is treated more seriously. Because the threshold is so low, the accuracy of the test result is often the defense.
Commercial Driver’s License Consequences
If you hold a commercial driver’s license, the stakes are different. The per se limit is 0.04, and a first DUI conviction disqualifies your commercial privileges for a year. A second conviction can disqualify you for life. Georgia also treats a DUI conviction in your personal vehicle as a disqualifying offense for the commercial license.
Can a DUI Be Reduced to Reckless Driving?
Sometimes. A DUI can be negotiated down to reckless driving, but a reduction is never automatic and it depends on the facts, the test results, your history, and the prosecutor. Reckless driving is not a free pass. It carries points on your record and insurance consequences. What it avoids is the DUI conviction, the state’s risk reduction course, and the DUI license suspension. Whether a reduction is realistic in your case is a question to answer after the evidence is in.
If your arrest happened in Athens-Clarke County, our Athens DUI page covers the local courts and the officers you are likely to see. If the case cannot be resolved, our trial practice covers what happens in front of a jury, and our frequently asked questions page answers what clients ask most.
Talk to a Georgia DUI Lawyer Before the Deadline Runs
DUI deadlines do not wait, and the license case can be lost before the criminal case is even scheduled. Tell us what happened at the stop and what you were told about testing.