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I. Driving Under the Influence
Driving under the
influence of alcohol
or drugs is provided
by statute as follows:
1. A person shall
not drive or be
in actual physical
control of any motor
vehicle while:
a. Under the
influence of alcohol
to the extent
that is less safe
for the person
to drive
b. Under the influence
of any drug to
the extent that
is less safe for
the person to
drive
c. Under the combined
influence of alcohol
and any drug to
the extent that
it is less safe
for the person
to drive
d. The person’s
alcohol concentration
is .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, or the
subjects to the
provision of subsection
b, if there is
any amount of
marijuana or controlled
substance present
in the person’s
blood or urine,
or both, including
the metabolites
and derivatives
of each are both
without regard
to whether or
not any alcohol
is present in
the person’s
breath or blood.
Thus being under
the “influence”
for purposes of
the statute can
be proved by any
of the five ways
mentioned above:
by alcohol, by drugs,
by alcohol and drugs,
by having a blood
alcohol concentration
above .08 grams
or by having the
presence of marijuana
or a controlled
substance in the
blood or urine at
the time of the
test regardless
of the presence
of alcohol. The
first three subsections
merely require that
the defendant be
under the influence
to the degree that
he is rendered “less
safe” to drive.
In most cases the
state attempts to
prove the element
“under the
influence”
by introducing the
results of a chemical
test administered
to the defendant,
the amount of alcohol
in a person’s
blood is shown by
chemical analysis
so does blood, breath
or urine or other
bodily substance
gives rise to the
presumption regarding
intoxication.
The law provides
for certain presumptions
regarding the blood
alcohol concentration
in the defendant’s
blood stream. Also,
other evidence may
be considered to
determine whether
or not the driver
was under the influence
of alcohol.
The state may also
attempt to prove
that the defendant
was under the influence
through the testimony
of eye witnesses
who had an opportunity
to observe the defendant’s
condition. Although,
evidence gained
through chemical
tests are strong
and persuasive,
it is dispositive
of whether the defendant
was under the influence.
Opinion evidence
may corroborate
or contradict the
evidence from the
chemical test. Moreover,
the state must prove
with any DUI prosecutions
whether the defendant
has refused to submit
to a chemical test.
In the refusal case,
opinions of witnesses
regarding the defendant’s
condition are critical.
It is well settled
under Georgia law
that the witnesses’
observation and
opinions regarding
the defendant’s
condition are admissible
to prove that the
defendant was under
the influence to
the extent that
it would render
him less safe to
operate a motor
vehicle.
II. The Element of
Control
The driving under
the influence statute
prohibits a person
from driving or being
“in actual physical
control of any moving
vehicle” while
under the influence.
What constitutes control
and under what circumstances
a vehicle is deemed
to be moving has been
subjects of several
court cases. Circumstantial
evidence may be sufficient
to authorize a finding
that the defendant
was driving or in
control of the moving
vehicle where there
are no witnesses to
the operation of the
vehicle. The defendant
who was incoherent,
was unsteady on his
feet, smelled of alcohol
and admitted driving
the vehicle, these
would be instances
in which control could
be established by
circumstantial evidence.
III. Law Concentration
.08 Grams or More
O.C.G.A. §40-6-391
provides that:
1. A person shall
not drive or be
in actual physical
control of any moving
vehicle while:
a. The person’s
blood alcohol
concentration
is .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 be in actual
physical control
ended.
This subsection,
known as the 0.08
statute or the persay
statute provides an
additional way a driver
can be under the influence.
Under the persay statute
the state does not
have to prove that
the defendant was
a less safe driver
by virtue of his intoxication.
A showing that the
defendant’s
blood alcohol concentration
was 0.08 is all that
is necessary to prove
that he was under
the influence. Moreover,
under the 0.08 statute,
the state does not
have to prove that
the defendant was
under the influence
at the time of the
driving. The state
needs to only prove
that the defendant
was 0.08 or above
at the time of the
test or at any time
within three hours
of driving or being
in control of a vehicle.
The crime of driving
under the influence
by virtue of violating
this code section
differs from driving
under other influence
crimes, only in that
the proof merely of
the commission of
the prescribed specific
act (being 0.08 or
above) is sufficient
without resort to
any inference or presumption.
Therefore, in prosecutions
under this statute
a charge on the rebutable
presumption of the
chemical test under
this specific code
section is not required.
IV. Under the Influence
of Drugs
The fact that the
defendant may be legally
entitled to use a
drug shall not constitute
a defense to the driving
under the influence
charge. However, or
a drug other than
alcohol is legally
prescribed, such drug
must render the defendant
unable to drive safely
in order to violate
the code section.
Consequently, where
a defendant had taken
a prescription drug
which had alcohol
as its primary ingredient,
such as is not a sufficient
defense under the
statute.
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