In Georgia, as in all states, laws against driving under the influence (“DUI”) aren’t limited just to alcohol. You can also be charged with DUI for operating a vehicle while impaired by drugs—illegal, validly prescribed, and even over-the-counter.
Georgia’s drugged driving law outlines several ways a prosecutor can charge a drug-related DUI (called “DUI-Drugs”). Read on to learn about the DUI-Drugs law and the penalties for a violation.
(Ga. Code Ann. § 40-6-391(a) (2017).)
You can be charged with DUI-Drugs if you’re under the influence of any drug. Under Georgia law, you’re “under the influence” if impaired to the extent that it is “less safe” for you to drive. (Ga. Code Ann. § 40-6-391(a)(2) (2017).)
When prosecuting a DUI-Drugs-Less-Safe charge, the state doesn’t have to prove you had a particular level of drugs in your system. So prosecution is possible even if you refused the state-administered chemical test. In lieu of test result, the state can prove its case with evidence of impairment, such as:
And it’s not just illegal drugs that can lead to a drugged driving charge. Legally prescribed controlled substances and even over-the-counter medications can be the basis for a DUI-Drugs charge. Georgia law makes it clear that being legally entitled to use a drug is not a defense to a DUI-Drugs charge. (Ga. Code Ann. § 40-6-391(b) (2017).)
If you end up taking a chemical test and the results show you had drugs in your system, the prosecution might charge you with per se DUI-Drugs. The per se law prohibits driving with “any amount of marijuana or a controlled substance” (including drug metabolites and derivatives) in the blood or urine. The statute, however, carves an exception for drug use that’s lawful (for instance, as prescribed by a doctor). In such cases, the statute permits conviction only if the use rendered the person “incapable of driving safely.” (Ga. Code Ann. § 40-6-391(a)(6), (b) (2017).)
But that’s not the end of the story. As the result of constitutional challenges to the law, the Georgia Supreme Court and Georgia Court of Appeals have substantially narrowed its application.
In Love v. State, 271 Ga. 398 (1993), the Georgia Supreme Court held that the per se DUI-Drugs statute’s disparate treatment of legal versus illegal marijuana users was unconstitutional. Basically, the court found it unfair—and a violation of equal protection—that legal users could be convicted only if their use rendered them incapable of driving safely, whereas those who illegally ingested marijuana faced prosecution for having any amount of marijuana in their system even if not impaired.
Other rulings have further limited this statute’s application. For example, in Sandlin v. State, 307 Ga.App. 573 (2011), the Georgia Court of Appeals used the Love court’s rationale to hold that the per se DUI-Drugs statute was unconstitutional as it pertained to alprazolam (Xanax) users.
So what do these decisions mean for the per se DUI-Drugs statute? It should apply only in cases where a chemical test shows the presence of drugs that have no lawful use, such as cocaine and heroin. For all other drugs, the prosecutor will likely have to resort to a DUI-Drugs-Less-Safe charge. (Keenum v. State, 248 Ga.App. 474 (2001).)
Georgia law has another DUI charge that applies to motorists who, as the result of any combination of drugs, alcohol, or inhalants, is impaired to the extent of being less safe to drive. (Ga. Code Ann. § 40-6-391(a)(4) (2017).)
Example: While on patrol, Officer Tom sees Bill weaving back and forth down the highway. Officer Tom stops Bill on suspicion of DUI. Bill denies drinking but admits to having smoked marijuana several hours prior to driving. However, Officer Tom smells burning marijuana and finds a recently-extinguished joint in the car. Officer Tom also notices an open liquor bottle next to Bill’s seat and can smell booze on Bill’s breath. Bill refuses to take a chemical test.
Based on these facts, the prosecutor might charge Bill with:
Bill could be found guilty of any or all of these charges, even though they arise from the same incident. But if Bill is convicted of more than one charge, the convictions will “merge” for sentencing purposes. In other words, Bill can be sentenced for only one of the charges. (Hewett v. State, 244 Ga.App. 112 (2000).)
Generally, a DUI-Drugs charge is a misdemeanor. (Ga. Code Ann. § 40-6-391(c) (2017).) The criminal penalties for drugged driving are the same as those for alcohol-based DUI charges. To read about the penalties in detail, see our first, second, and third-offense articles.
If you’re facing a DUI-Drugs charge, consult an experienced criminal defense lawyer. DUI law is complicated and the facts of every case are different. A qualified attorney can review your case for weaknesses in the state’s evidence and any possible defenses.