DUI Per Se in Georgia

Driving under the influence (DUI) in Georgia is a serious offense, and the law categorizes it into two primary types: DUI less safe and DUI per se. While most people are familiar with the concept of being “too impaired to drive,” they may not fully understand what DUI per se means and how it can impact their case.

If you or someone you care about is facing a DUI per se charge in Georgia, this guide breaks down the legal definition, penalties, and viable defense strategies to help you understand what you’re up against, and how an experienced Georgia DUI lawyer can help.

If you or a loved one is facing a DUI per se charge in GA, call 1-888-839-4384 or use our online contact form to schedule a FREE CONSULTATION with a top rated criminal defense attorney in Georgia today!

What Is DUI Per Se Under Georgia Law?

Under O.C.G.A. § 40-6-391(a)(5), a person can be charged with DUI per se if they operate a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher, regardless of whether they show signs of being under the influence of alcohol.

The term per se is Latin for “by itself.” In a DUI per se case, the fact that your BAC was at or above the legal limit is, in itself, sufficient to convict you, provided the test was administered properly and other procedural safeguards were met.

The prosecution does not have to prove that your driving was affected by alcohol. This makes a DUI per se charge distinct from a DUI less safe, where the state must demonstrate that you were actually impaired while driving.

Legal Limits for DUI Per Se in Georgia

• 0.08% or higher for drivers 21 and older operating non-commercial vehicles
• 0.04% or higher for commercial drivers
• 0.02% or higher for drivers under 21 years old

It’s important to note that these thresholds apply only to alcohol-based offenses. If drugs (prescription, over-the-counter, or illegal) are involved, the case is typically handled under DUI less safe or DUI drugs statutes.

How Is BAC Measured?

To secure a DUI per se conviction, Georgia prosecutors rely on chemical testing, which must be conducted according to the state’s Implied Consent Law. Upon being arrested for DUI, drivers are required to submit to state-administered chemical tests of their breath, blood, urine, or other bodily substances.

Refusing these tests can lead to immediate consequences, including an administrative license suspension of up to 12 months for a first offense. Additionally, refusal can be used as evidence in court to support a DUI less safe charge, but a Georgia DUI per se charge cannot be brought without a valid BAC test result.

Penalties for DUI Per Se in Georgia

Georgia does not differentiate between DUI per se and DUI less safe when it comes to sentencing. A conviction for either will carry the same statutory penalties. Here’s what you can expect for a first Georgia DUI per se offense:

Criminal Penalties

• Jail time: 24 hours minimum, up to 12 months (some or all may be suspended, stayed, or served on probation)
• Fines: $300 to $1,000
• Community service: Minimum of 40 hours
• DUI Risk Reduction Program: Mandatory enrollment and completion
• Probation: Up to 12 months (minus any days served in jail)
• Driver’s license suspension: Up to 12 months (with possible reinstatement after 120 days and completion of DUI school)

Administrative License Penalties

• If your blood alcohol concentration is 0.08 grams per mil, the Georgia Department of Driver Services (DDS) will suspend your license for at least 120 days, unless you install an ignition interlock device or apply for a limited driving permit (only available for eligible first-time offenders).
• A refusal to submit to testing leads to a 12-month suspension with no limited permit eligibility.

Subsequent offenses carry more severe penalties, including longer jail time, higher fines, longer license suspensions, and potentially mandatory alcohol or drug treatment programs.

Fighting a DUI Per Se Charge in Georgia

Although a DUI per se charge may sound like a slam-dunk for the prosecution, that’s far from the truth. A skilled Georgia DUI lawyer can scrutinize every aspect of your arrest and chemical testing process to identify weaknesses in the state’s case. Here are several common—and often effective—defense strategies.

1. Challenging the Validity of the BAC Test

Georgia law requires that chemical tests be conducted properly, using calibrated and certified equipment, by qualified personnel. If the device used for your breath test was malfunctioning or not regularly calibrated, the results may be thrown out. Similarly, if a blood, breath, or urine sample was improperly stored or contaminated, that evidence may be inadmissible.

Key Issues to Challenge:

• Was the Intoxilyzer 9000 machine (used in Georgia) functioning properly?
• Was the breath sample collected after the mandatory 20-minute observation period?
• Were blood samples stored at the proper temperature and labeled correctly?

2. Improper Traffic Stop or Arrest

Police must have a lawful reason to stop your vehicle, such as a traffic violation or reasonable suspicion of DUI. If the stop was unlawful, or if the police officer lacked probable cause for the arrest, your attorney can move to suppress all evidence gathered after the stop, including BAC test results.

3. Violation of Implied Consent Procedures

Under Georgia’s Implied Consent Law, officers must read the appropriate implied consent warning after arresting a driver and before requesting a chemical test. If the officer failed to read this warning, or read the wrong version, any resulting BAC test may be inadmissible in court.

For example, a commercial driver must be read the commercial driver implied consent warning. If the officer mistakenly reads the general warning, that’s a procedural error your lawyer can use to suppress evidence.

4. Timing of the BAC Test

BAC can continue to rise for up to an hour after you stop drinking. If there was a significant delay between the time you were pulled over and the time the test was conducted, your BAC may have risen above 0.08% after you were no longer driving.

This is known as the “rising blood alcohol defense.” Your lawyer may present expert testimony to argue that your BAC at the time of driving was below the legal limit.

5. Medical Conditions or Diet

Certain medical conditions, such as GERD (acid reflux), hypoglycemia, or diabetes, can lead to false positives on breath tests. Similarly, strict low-carb or ketogenic diets can produce acetone, a substance that some breathalyzer machines may misread as ethanol.

A knowledgeable DUI lawyer will explore these factors and potentially work with medical experts to challenge the test results.

Why Hiring a Georgia DUI Lawyer Is Crucial

DUI law in Georgia is complex, and prosecutors are aggressive in seeking convictions—especially in per se cases where the state believes it has “hard science” on its side. But BAC test results are far from infallible, and an experienced DUI lawyer can use Georgia’s procedural safeguards and evidentiary rules to your advantage.

Your attorney will:

• Conduct a thorough review of the arrest report, dash/body camera footage, and chemical test records
• File motions to suppress evidence where your rights were violated
• Cross-examine the arresting officer and state experts at trial
• Identify opportunities for case dismissal, reduction of charges, or acquittal

DUI Per Se Doesn’t Mean You’re Guilty

A DUI per se charge may seem like an open-and-shut case, but Georgia law provides numerous opportunities to challenge the evidence and protect your rights. The key is to act quickly; your license, your record, and your future could depend on it.

If you’ve been charged with DUI per se in Georgia, don’t face the system alone. Contact a qualified Georgia DUI lawyer immediately to review your case and start building your defense.

Need Help with a DUI Per Se Charge in Georgia?

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