One of the most misunderstood concepts of DUI law in Georgia is that a person cannot be convicted of DUI if that person “blows under 0.08.” While it is true that many DUIs are reduced to reckless driving or dismissed when a chemical test shows that a person’s blood alcohol content (BAC) is under 0.08, some jurisdictions consistently prosecute people with a lesser BAC if the state can show that the person was also less safe to drive under the circumstances.
Keep in mind that the following applies only to drivers 21 or over who have non-commercial licenses.
OCGA 40-6-391 (a)(5) states in pertinent part that a person shall not drive or be in actual physical control of any moving vehicle while: 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.
This is the code section that many people rely on in believing that 0.08 is the “legal limit.”
However, another code section, 40-6-392 provides for certain inferences that allow prosecutors to move forward with cases involving a lower BAC.
If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact (judge or jury) in its discretion may infer that the person was not under the influence of alcohol. Most of these cases are dismissed or reduced to a lesser offense.
But if there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol.
This means that if your BAC is above 0.05, but under 0.08, you can still be convicted for DUI under the code section that allows for convictions for DUI because you are a less safe driver as a result of your consumption of alcohol.
For example, if a motorist is weaving, has bloodshot eyes, a strong odor of alcohol, and performs poorly on the field sobriety tests, a BAC of 0.06 can be coupled with this evidence to convict the motorist of DUI even though the motorist blew under “the legal limit.”
While it is not necessarily illegal to drink and drive in Georgia, it is illegal to drink to the level of having a BAC of 0.08 or more and/or being less safe to drive as a result of alcohol consumption.
The only safe and conservative advice that I would feel appropriate giving is to not drive a motor vehicle after consuming any amount of alcohol. Even one beer can create a test result of 0.05 for some people. The act of drinking anything and driving is simply too great of a risk to others and yourself.
Swindle is a local attorney at law.