A Paulding county criminal defense lawyer knows the following:
(1) Blood or Breath Alcohol of 0.05% or Less
O.C.G.A. § 40-6-392(b)(1) provides the defense with a presumption (inference) of non-impairment, subject to the State's attempt to rebut the presumption. This might be done by presenting evidence of a collision or erratic driving, or through testimony about the driver's physical manifestations. The amended provisions now read:
(b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation ofCode Section 40-6-391, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood, urine, breath, or other bodily substance, may give rise to inferences as follows: (1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391….
(2) Blood or Breath Alcohol Level of 0.06% or 0.07%
O.C.G.A. § 40-6-392(b)(2) is a “neutral” position, where neither side can take advantage of an inference.
(3) Blood or Breath Alcohol Level of 0.08% or More
In 2001, the Georgia Legislature lowered the “per se” limit for adults to 0.08 grams and eliminated all reference to alcohol readings of 0.08 or more creating an “inference of impairment.” Prior law provided the prosecutor with this tool to facilitate convictions prior to July 1, 2001. The old BAC level for use of the “inference” was 0.10 grams or more.
Former O.C.G.A. § 40-6-392(b)(3) provided the State with an inference of impairment for any BAC of 0.08 or more, subject to the defense's attempt to try to rebut the inference. However, the State still had to establish that this was the person's alcohol level at the time of driving on all “less safe” DUI-alcohol cases. Defense counsel must insist on the trial court's giving this instruction, as the jury charge relates to the "less safe" count, as opposed to a different "proof" requirement under the per se alcohol content.
These “inferences” apply to all drivers, regardless of age. However, with the passage of HB 681, drivers under age 21 can be convicted of a per se DUI where a chemical test indicates an alcohol content of 0.02 grams percent or more if he or she is properly accused under O.C.G.A. § 40-6-391(k).
Also, commercial truck drivers are held to a 0.04 grams percent or higher per se level if accused under O.C.G.A. § 40-6-391(i). Despite these more stringent threshold levels for underage and CDL drivers, an alcohol level of 0.04 grams percent is a very favorable BAC in a "less safe" case, using existing statutory inferences. However, the existence of the same evidence may be sufficient to convict operating a commercial vehicle or a driver under 21 of a "per se" violation.
This dichotomy is why defense counsel must do anything possible to eliminate any per se "number," yet (if trial goes forward) be prepared to BOTH show lack of proof of "Less Safe" DUI and cast doubt on the accuracy and reliability of the State's breath test "number" which is the sine qua non of a per se alcohol count.
In any court using Uniform Traffic Citations rather than accusations, carefully review which Code section(s) were used and obtain an acquittal if the "probata and allegata" do not match. The case law on these issues is anything but clear so do your homework in this topic prior to trial of the case. A demurrer (motion to quash) may be the winning strategy, or remaining mute on the problem until after the "issue is joined" at trial and jeopardy attaches could be your best chance at success.
Although these evidentiary “inferences” are given to the prosecution in alcohol-based DUI cases, no such rules have YET been promulgated by the Legislature for controlled substances (drugs). Kerr v. State, 205 Ga. App. 624, 423 S.E.2d 276 (1992). Over the past five years, the National Highway Traffic Safety Administration has conducted studies to try to establish national “per se” impairment levels for certain controlled substances (e.g., marijuana). Several states have now enacted such laws. CAUTION: the GBI training manual for the Intoxilyzer 5000 contains some language about impairing levels for common prescribed drugs. Be aware of the likelihood an untrained lab worker will try to use these “numbers” without any foundation's being laid.
Practice Commentary
In the 2001 regular session the Georgia Legislature amended O.C.G.A. 40-6-392(b) by finally changing “presumptions” to “inferences” in order to follow the requirements of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Despite the legislative change, an overworked judge still may erroneously read the language as “presumed” creating reversible error. Davis v. State, 236 Ga. App. 32, 510 S.E.2d 889 (1999); Stepic v. State, 226 Ga. App. 734, 487 S.E.2d 643 (1997). Contact a Paulding County Criminal defense lawyer for help with your case.