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GA OCGA 40-6-391 DUI Laws Less Safe | DUI Per Se Explained

OCGA 40-6-391: Code Section for Georgia DUI Laws

Georgia DUI Laws Set Forth in OCGA 40-6-391, Driving under the Influence

By: William C. Head, Atlanta DUI Lawyer and Legal Book Author on Georgia DUI Laws

When people are arrested for driving under the influence in Georgia, many will research the Official Code of Georgia Annotated (O.C.G.A.) section listed on their traffic ticket for their drunk driving charge. The accused driver sees this general language: OCGA 40-6-391 (plus another parenthetical information, which is identifying what TYPE of DUI in Georgia is being charged).

GA OCGA 40-6-391 DUI Laws

For the first time in their lives, accused citizens want to know how the Georgia DUI law is worded, and seek to read the words of the DUI laws in Georgia, to see if they have violated the impaired driving law. Some Georgians facing driving while intoxicated charges type in “what is DUI less safe Georgia,” or just “DUI Georgia”, or possibly “first offense DUI.” This page gives answers to most of the questions about Georgia DUI.

Georgia DUI Laws Are Among the Nation’s Toughest

The state of Georgia has had very tough DUI laws for over half a century. These various provisions set forth what constitutes criminal acts of intoxicated driving or drugged driving.

The last major change to GA Code Section 40-6-391 occurred in 2001, under Gov. Roy Barnes. The Georgia DUI law was amended to lower the permissible BAC level for adult drivers (not operating a commercial motor vehicle) to 0.08 grams percent, as shown in subsection (a)(5) below. In addition, especially for repeat DUI offenders, the Georgia Legislature (in 2001) boosted minimum, mandatory punishments such as community service hours and minimum jail time, with dramatically higher DUI penalties.

The CMV (commercial motor vehicle) drivers are held to a lower BAC level of 0.04 grams percent “legal limit” for DUI-alcohol per se, under subsection “i” shown below. The CDL plastic license allows driving in other types of vehicles, but no person can legally operate a commercial motor vehicle without the proper classification of CMV license in his or her possession.

Following a similar theme, drivers under age 21 must comply with a more restrictive BAC level of 0.02 grams percent, under subsection “(k)(1)” below. The DUI-alcohol per se limit for underage drivers means that one drink can potentially create a DUI over the legal limit charge.

Georgia’s statute on DUI law outlines the numerous WAYS a person can be found guilty of drunken driving under OCGA 40-6-391. Mr. Head has added bracketed and added BOLD print about information for the two most commonly-accused Georgia code subsections under our state’s Georgia DUI laws: DUI-alcohol less safe and DUI-alcohol per se:

Georgia Code Sections for Law on Driving under the Influence Crimes

TITLE 40 – MOTOR VEHICLES AND TRAFFIC
CHAPTER 6 – UNIFORM RULES OF THE ROAD
ARTICLE 15 – SERIOUS TRAFFIC OFFENSES
OCGA 40-6-391

O.C.G.A. § 40-6-391 (2010)

  • 40-6-391. Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for second time; endangering a child(a) A person shall not drive or be in actual physical control of any moving vehicle while:(1) [DUI-alcohol less safe] Under the influence of alcohol to the extent that it is less safe for the person to drive;

    (2) Under the influence of any drug to the extent that it is less safe for the person to drive;

    (3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

    (4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

    (5) [DUI-alcohol per se] 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; or

    (6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.

    (b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.

    (c) Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor, upon a third conviction thereof, be guilty of a high and aggravated misdemeanor, and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:

    (1) First conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

    (A) A fine of not less than $300.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

    (B) A period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender’s alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;

    (C) Not fewer than 40 hours of community service, except that for a conviction for violation of subsection (k) of this Code section where the person’s alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not fewer than 20 hours;

    (D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department’s approval of the program to the person upon enrollment in the program;

    (E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; provided, however, that in the court’s discretion such evaluation may be waived; and

    (F) If the person is sentenced to a period of imprisonment for fewer than 12 months, a period of probation of 12 months less any days during which the person is actually incarcerated;

    (2) For the second conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

    (A) A fine of not less than $600.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

    (B) A period of imprisonment of not fewer than 90 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 72 hours of actual incarceration;

    (C) Not fewer than 30 days of community service;

    (D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department’s approval of the program to the person upon enrollment in the program;

    (E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

    (F) A period of probation of 12 months less any days during which the person is actually incarcerated;

    (3) For the third conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

    (A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

    (B) A mandatory period of imprisonment of not fewer than 120 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 15 days of actual incarceration;

    (C) Not fewer than 30 days of community service;

    (D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department’s approval of the program to the person upon enrollment in the program;

    (E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

    (F) A period of probation of 12 months less any days during which the person is actually incarcerated;

    (4) For the fourth or subsequent conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

    (A) A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

    (B) A period of imprisonment of not less than one year and not more than five years; provided, however, that the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose;

    (C) Not fewer than 60 days of community service; provided, however, that if a defendant is sentenced to serve three years of actual imprisonment, the judge may suspend the community service;

    (D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program. The sponsor of any such program shall provide written notice of the department’s approval of the program to the person upon enrollment in the program;

    (E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

    (F) A period of probation of five years less any days during which the person is actually imprisoned;

    provided, however, that if the ten-year period of time as measured in this paragraph commenced prior to July 1, 2008, then such fourth or subsequent conviction shall be a misdemeanor of a high and aggravated nature and punished as provided in paragraph (3) of this subsection;

    (5) If a person has been convicted of violating subsection (k) of this Code section premised on a refusal to submit to required testing or where such person’s alcohol concentration at the time of the offense was 0.08 grams or more, and such person is subsequently convicted of violating subsection (a) of this Code section, such person shall be punished by applying the applicable level or grade of conviction specified in this subsection such that the previous conviction of violating subsection (k) of this Code section shall be considered a previous conviction of violating subsection (a) of this Code section;

    (6) For the purpose of imposing a sentence under this subsection, a plea of nolo contendere based on a violation of this Code section shall constitute a conviction; and

    (7) For purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of this subsection, only those offenses for which a conviction is obtained or a plea of nolo contendere is accepted on or after July 1, 2008, shall be considered; provided, however, that nothing in this subsection shall be construed as limiting or modifying in any way administrative proceedings or sentence enhancement provisions under Georgia law, including, but not limited to, provisions relating to punishment of recidivist offenders pursuant to Title 17.

    (d) (1) Notwithstanding the limits set forth in any municipal charter, any municipal court of any municipality shall be authorized to impose the misdemeanor or high and aggravated misdemeanor punishments provided for in this Code section upon a conviction of violating this Code section or upon a conviction of violating any ordinance adopting the provisions of this Code section.

    (2) Notwithstanding any provision of this Code section to the contrary, any court authorized to hear misdemeanor or high and aggravated misdemeanor cases involving violations of this Code section shall be authorized to exercise the power to probate, suspend, or stay any sentence imposed. Such power shall, however, be limited to the conditions and limitations imposed by subsection (c) of this Code section.

    (e) The foregoing limitations on punishment also shall apply when a defendant has been convicted of violating, by a single transaction, more than one of the four provisions of subsection (a) of this Code section.

    (f) The provisions of Code Section 17-10-3, relating to general punishment for misdemeanors including traffic offenses, and the provisions of Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section.

(g)(1) If the payment of the fine required under subsection (c) of this Code section will impose an economic hardship on the defendant, the judge, at his or her sole discretion, may order the defendant to pay such fine in installments and such order may be enforced through a contempt proceeding or a revocation of any probation otherwise authorized by this Code section.

(2) In the sole discretion of the judge, he or she may suspend up to one-half of the fine imposed under subsection (c) of this Code section conditioned upon the defendant’s undergoing treatment in a substance abuse treatment program as defined in Code Section 40-5-1.

(h) For purposes of determining under this chapter prior convictions of or pleas of nolo contendere to violating this Code section, in addition to the offense prohibited by this Code section, a conviction of or plea of nolo contendere to any of the following offenses shall be deemed to be a violation of this Code section:

(1) Any federal law substantially conforming to or parallel with the offense covered under this Code section;

(2) Any local ordinance adopted pursuant to Article 14 of this chapter, which ordinance adopts the provisions of this Code section; or

(3) Any previously or currently existing law of this or any other state, which law was or is substantially conforming to or parallel with this Code section.

(i) A person shall not drive or be in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person’s blood, breath, or urine. Every person convicted of violating this subsection shall be guilty of a misdemeanor and, in addition to any disqualification resulting under Article 7 of Chapter 5 of this title, the “Uniform Commercial Driver’s License Act,” shall be fined as provided in subsection (c) of this Code section.
(j)(1) The clerk of the court in which a person is convicted a second or subsequent time under subsection (c) of this Code section within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall cause to be published a notice of conviction for each such person convicted. Such notices of conviction shall be published in the manner of legal notices in the legal organ of the county in which such person resides or, in the case of nonresidents, in the legal organ of the county in which the person was convicted. Such notice of conviction shall be one column wide by two inches long and shall contain the photograph taken by the arresting law enforcement agency at the time of arrest, the name of the convicted person, the city, county, and zip code of the convicted person’s residential address, and the date, time, place of arrest, and disposition of the case and shall be published once in the legal organ of the appropriate county in the second week following such conviction or as soon thereafter as publication may be made.

(2) The convicted person for which a notice of conviction is published pursuant to this subsection shall be assessed $25.00 for the cost of publication of such notice and such assessment shall be imposed at the time of conviction in addition to any other fine imposed pursuant to this Code section.

(3) The clerk of the court, the publisher of any legal organ which publishes a notice of conviction, and any other person involved in the publication of an erroneous notice of conviction shall be immune from civil or criminal liability for such erroneous publication, provided such publication was made in good faith.
(k)(1) A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.

(2) Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section, provided that any term of imprisonment served shall be subject to the provisions of Code Section 17-10-3.1, and any period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.

(3) No plea of nolo contendere shall be accepted for any person under the age of 21 charged with a violation of this Code section.

(l) A person who violates this Code section while transporting in a motor vehicle a child under the age of 14 years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or drugs. The offense of endangering a child by driving under the influence of alcohol or drugs shall not be merged with the offense of driving under the influence of alcohol or drugs for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished in accordance with the provisions of subsection (d) of Code Section 16-12-1, relating to the offense of contributing to the delinquency, unruliness, or deprivation of a child. 

DUI With Child in Car or Child Endangerment

OCGA § 40-6-391, subsection (l) is the Georgia code section calling for an additional child endangerment DUI to be added to drunk driving charges, for each child under age 14 that was in the vehicle when the DUI arrest occurred. See wording of this child endangerment law, above.

If the driver is convicted, the law states that any endangerment counts cannot be “merged” (not placed on the criminal history as separate charges). So, with several “underage” children as passengers, as defined by this DUI statute, you can face enough DUI charges to take away your right to drive for years – after you get out of jail.

Searching for a DUI Attorney Who Is Known for Getting Top Results?

Atlanta DUI Lawyers

If accused of driving under the influence in Georgia, ask other lawyers (in ANY practice field) for names of the best Atlanta DUI lawyer. For any who have practiced for 10 years or more, it will most often be William C. “Bubba” Head. Bubba Head is well-known around the country as Georgia’s best-known DUI lawyer.

Bubba and his two law partners represent celebrities, sports figures, politicians, and anyone else who has TOO MUCH TO LOSE TO PLEAD GUILTY! Bubba Head has won thousands of tough DUI-alcohol and DUI-drug cases for over more than four decades, and 95% of those clients are people just like you.

Call 42-year veteran Atlanta DUI attorney Bubba Head today and get honest answers to all your questions. 404-567-5515. The call is FREE, the legal advice is FREE, and the lawyer consultation is FREE. Everyone that consults with us gets a FREE PDF copy of Bubba Head’s DUI Book, which is 420 pages of highly-valuable information. Tell us everything that happened before, during and after your DUI arrest. The sooner you call us, the better the chances that our criminal attorneys will win your DUI case or get your DUI charge reduced or dismissed.

GA DUI 30 Days

Remember, you only have 30 DAYS after the arrest date to file a license suspension appeal or to apply for an ignition interlock device (if eligible), or your driver’s license will be suspended for ONE FULL YEAR! Talk to Bubba Head, Larry Kohn, or Cory Yager now.

Our Atlanta DUI lawyers are available 24 hours a day, weekends, and all major holidays. (404) 567-5515

 

 

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