In Atlanta, drivers can face two kinds of DUI charges: "Less Safe" and "Per Se". If you have been charged with a 'Less Safe' DUI, this means that there was evidence (such as video or a report made by a police officer) that due to consuming any amount of alcohol or drugs, you were less able to safely operate a motor vehicle. For this type of DUI, it does not matter what the amount of alcohol (or drugs) in your system was, it only matters that you were impaired to the point that you were a less safe driver.
Let's compare this with a 'Per Se' DUI. For this type of DUI, a person has undergone a chemical test of the breath, blood or urine, and the result was over an established legal limit for blood alcohol content (BAC). For this type of charge, it is not necessary to prove that your driving was less safe. The law has established that merely by consuming alcohol to the extent that your BAC meets a threshold, you are automatically "too drunk to drive". For most drivers in Georgia, like all states, the legal BAC limit is .08 grams. For truck drivers, bus drivers, and others operating with a CDL (Commercial Driver's License), the limit is half this amount, .04 grams. Finally, for drivers under the age of 21, the limit is a mere .02 grams (again, for this charge, there is no requirement that you were 'less safe' of a driver).
Many people believe that if they submitted to a chemical test and were charged with a Per Se DUI, they are automatically guilty of DUI. This is not true. If you have submitted to a chemical test for DUI suspicion, there are many requirements which must have been met for your test results to be valid. To begin with, a law enforcement officer must inform you of the concept of implied consent. Implied consent means that Georgia law, if you are driving on public roadways, you have already given law enforcement officials your consent to test your blood, breath, or urine if you are placed under arrest on suspicion of driving under the influence. However, you must be informed that you may refuse a test (although this refusal will lead to the suspension of your driver's license and may be used against you in court) and you have the right to request a different test, and chose who administers it (at your expense).
Additionally, machines used to take samples for purposes of establishing BAC are subjected to numerous requirements. For example, a breathalyzer machine is required to be routinely calibrated and maintained. If your lawyer can demonstrate that the machine used to take your sample was not current on maintenance requirements, these results can be challenged. There are also defenses based on the circumstances of your arrest, even if your BAC was properly measured, such as medical necessity. Imagine you and your husband are drinking some beers while on a fishing trip, and he accidentally seriously cuts himself. If you need to drive him to get immediate medical attention, you would have an affirmative defense if you were charged with DUI while driving to the hospital.
If you are facing a Per Se DUI charge, please contact me. We will discuss in detail what happened in your case and agree on the best plan of defense.