OCGA 40-6-391

By: Board Certified DUI Lawyer William C. Head, Ex-cop Cory Yager and AVVO superstar Larry Kohn

When facing a DUI charge in Georgia, it is important to understand OCGA 40-6-391 and related laws. This article on DUI laws in Georgia endeavors to explain that DUI violations for those facing these serious motor vehicle crimes of driving under the influence because (if convicted) this creates a lifetime record.

Many clients are so shell-shocked by their DUI arrest that they go online to search “Is a DUI a felony in GA?” since they can’t believe being cuffed and stuffed in the back seat of a patrol car would occur to a traffic crime. But, a DUI in GA, or a reckless driving arrest under O.C.G.A. 40-6-390 or a hit and run GA charge under OCGA 40-6-270 are all serious traffic crimes.

OCGA DUI: Georgia Laws under 40-6-391 for DUI Charges

Let’s begin this discussion by pointing out that Georgia DUI laws have NEVER allowed any DUI conviction or plea of nolo contendere to a DUI charge to be able to be expunged or in any way restricted from that driver’s record. Only 8 other states in the USA plus the District of Columbia have these strict “no expungement” statutes like the DUI laws in GA.

The top-ranked DUI lawyers in Georgia often can find flaws in some aspect of the police investigation, and negotiate a reckless driving in Georgia. This avoids many of the serious effects of a DUI conviction.

However, these reductions mainly apply to first-time DUI cases. In Georgia, prosecutors can risk losing their jobs if they reduce DUI charges on repeat offender cases, even if being prosecuted as DUI less safe cases.

These charges of impaired driving can include violations related to alcohol, drugs, or any other intoxicating substances, vapors or noxious gases (such as from huffing aerosol gases, noxious vapors and aerosol propellants). This legal code sets the criteria for what qualifies as a DUI and details the prohibited behaviors under Georgia legislation.

Many drivers (once told they are under arrest for DUI) panic and have no idea about how GA D.U.I. laws work. They do not know how to answer the arresting officer when he or she reads them a green-colored card (see an image of the card below).

The green card gives a legal warning called “implied consent.” This warning is based on OGGA 40-5-67.1 (b)(1), (b)(2), and (b)(3). There are three versions of this warning. This is because drivers under 21 and commercial drivers need different information. You can see this information on the green card above.

How Most Arrests Occur and Proceed on the Day of Arrest

At the roadway, the officers in Georgia will usually request a blood test or a breath alcohol test, or both. In GA, refusing an alcohol breath test will not cause an immediate administrative driver license suspension of your driving privileges under the implied consent law in Georgia, but a detained driver’s refusal of a blood test will trigger that one-year suspension.

The person who refused the test will still face charges for OCGA DUI less safe. Many people panic because they know that drinking will show alcohol in a blood test.

If trial occurs later, the prosecutor will argue that the accused person refused the testing because she or he knew that the result would show an over-the limit reading.

So, depending upon all the evidence collected by police (e.g., video evidence with audio and video), possible field sobriety testing errors, rude or profane verbal attacks by the client toward police a DUI less safe Georgia case can result in a conviction.

How Georgia’s DUI Process Works

The OCGA DUI framework creates a complicated legal process. There are strict deadlines and serious consequences at each step.

Step 1: Traffic Stop and Investigation

A police officer must have a good reason to stop you. They will gather evidence of impairment through observations, sobriety tests, and breath tests.

Step 2: Arrest and Chemical Testing

If you are arrested for DUI, you must take state chemical tests. This is required by Georgia law. If you refuse, your driver’s license will be automatically suspended. This refusal can also be used as evidence against you.

Step 3: Administrative License Action

The Georgia Department of Driver Services will suspend your driver’s license immediately. This is not the same as the suspension under the criminal penalties, if convicted.

The length of the suspension depends on how many DUI offenses you have. You have 30 days to request a hearing to challenge this suspension.

Step 4: Criminal Court Proceedings

If you are charged with DUI, you will go through criminal court. Possible penalties include jail time, fines, community service, and mandatory treatment programs for substance abuse.

Step 5: Post-Conviction Requirements

If you are convicted, you must complete a risk reduction program. You may also need to install an ignition interlock device. Under strict conditions, you might qualify for a limited driving permit.

Georgia DUI Penalties by Offense Level

First DUI Conviction

For a first DUI conviction, the penalties are:

• Jail: Ranging from rom 24 hours to 12 months
• Fines: $300 to $1,000 plus surcharges and extra court costs that can double the fine amount
• License suspension: Up to 12 months (the GA Department of Driver Services imposes this)
• Community service: At least 40 hours of community service hours
• DUI school: Generally, this must be completed within 120 days after your court date, which (for adult age drivers) allow them to then seek reinstatement of their full plastic driver’s license after the 120^th day.
• Nolo Contendere: Prior to 1997, many first offence DUI offenders could enter a plea of nolo contendere. Since then, very few “no contest” pleas have been accepted, and the process is at the Judge’s discretion.
• Criminal record: Permanent, possibly affecting job options, credit scores and rental housing availability

Second DUI Within 10 Years

Jail: 72 hours to 12 months, but in counties with a DUI Court program, nothing close to 72 hours typically will be what you are offered. The offer will usually be 90 days to serve if you decline the DUI Court Program (or a Drug Court program) and if you subsequently lose the case.

• Fines: $600 to $1,000 plus surcharges and court costs, which likely will be nearly double the fine amount
• Conviction notice published in local paper: Mug shot photo and case disposition summary will be published in the local newspaper of that county, in the legal notices (see sample below – NOT OUR CLIENT, just an example found online)
• License suspension: At least 18 months for Georgia licensees age 21 or over at the time of the plea being entered (suspensions increase with each subsequent offense within a 5-year span from date of the first DUI arrest)
• Community service: At least 240 hours of community service [30 days at 8 hours a day].
• Obtain a clinical evaluation from a State-license counselor and complete any substance abuse treatment program required by that counselor.
• Criminal record: Permanent criminal blemish on record, possibly affecting job options, banking and credit scores and being able to be accepted for higher end rental housing.

Third DUI within Ten Years (will be a High and Aggravated Crime if the 3rd in 5 years)

For a third DUI Georgia conviction, the penalties are very harsh:

• Jail: 15 days to 12 months, but in counties with a DUI Court program, that 15 days minimum typically will not be what you are offered. The offer will usually be 120 days to serve in jail if you decline the DUI Court Program and later lose the case at trial.
• Fines: $1,000 to $5,000 plus court costs, which can boost the total cost by nearly double the fine amount.
• License revocation: Minimum of 5 years (suspensions and revocations are longer for repeat offenses) if the date of that 3rd arrest occurred within five (5) years of the first offense DUI of that driver.
• Habitual violator designation: 
• Your photo will be published (see sample displayed above for any 2nd or subsequent DUI conviction within 10 years
• Ignition interlock device: Required for any driving privileges.

Fourth DUI (Felony) within 10 years

• Prison: 1 year to 5 years of prison time, but by entering a drug court or DUI Court program this jail time can be reduced.
• Fines: $1,000 to $5,000 plus state add-ons and surcharges then can reach nearly $8000.
• License revocation: At least 60 months (5 years) with no chance to drive using interlock or otherwise
• Criminal record: Permanent, affecting jobs and housing

Note: Your license may be suspended right after your arrest. This can happen even before a conviction. It is more likely if you refuse a chemical test or are over the legal limit. You can ask for a hearing to challenge this suspension.

Implied Consent Laws and Chemical Testing

Georgia law mandates chemical tests for DUI arrests, with automatic consent from drivers for breath, blood, or urine tests. This detailed GA implied consent page written by our Georgia DUI law book co-authors gives greater detailed information.

Refusing post-arrest forensic testing leads to a 12-month administrative license suspension which is separate from any suspension triggered by a criminal conviction. CDL (commercial driver license) holders face much stricter rules, and under-21 drivers are suspended for having any measurable level of alcohol 0.02 grams percent or more.

Call NOW: Take Immediate Action to Protect Your Rights

Once arrested, time starts “ticking down” until you lose your right to drive for a FULL YEAR. Any DUI arrestee has only 30 days after your arrest date to EITHER (a) ask for a hearing with the Department of Driver Services or (b) get an IID-restricted GA license and have it installed within that thirty-day period.

If you miss this deadline, your driver license will be suspended for 12 full months, with NO LIMITED driving privileges. This administrative license suspension cannot be successfully appealed.

What are you waiting for? The call and initial interview with our award-winning lawyers is FREE. 1-888-839-4384. Our phones are answered 24 hours a day.