I. Driving Under the Influence (DUI)

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.