There are four primary types of DUI-related charges (driving under the influence) that can result in a felony conviction on your record in Georgia: (1) a fourth conviction of DUI Less Safe within five years, (2) DUI with vehicular homicide, (3) DUI with serious bodily injury, & (4) DUI that endangers a child,.
1.DUI: Driving Under the Influence
1.1 Elements
1.1.1 LESS SAFE: Driving under the influence of drugs or alcohol to the extent that it is less safe for the person to drive (DUI Less Safe) is a misdemeanor subject to punishment with a fine no less than $300 and no more than $1,000. If, however, a person is convicted of DUI Less Safe four times within five years, the last offense is deemed a felony and is subject to greater punishment than the same act prosecuted as a misdemeanor. O.C.G.A. § 40-6-391. For the purposes of this law, a plea of nolo contendere to a DUI Less Safe charge constitutes a conviction.
To show that a driver was “less safe” to drive due to the influence of drugs or alcohol, the state may or may not have a chemical sobriety test to support the charge. All that the state has to show is that there was circumstantial evidence that someone under the influence of drugs or alcohol was operating a “moving vehicle.” The state must show that the defendant (1) was driving or had actual physical control of the vehicle & (2) was less safe to drive because he was under the influence of drugs or alcohol. Mere evidence that the driver of the car had some alcohol in his system, whether through a blood or a breathalyzer test, does not show that the driver was “less safe” to operate the vehicle. Usually, the state will call the officer who made the arrest to testify to his opinion that the person operating the vehicle was less safe to drive because of the influence of drugs or alcohol.
1.1.2 Per Se: DUI Per Se is when a driver is caught operating or in control of a motor vehicle with a blood alcohol level of 0.08% or higher or with any marijuana or controlled substance in his system. In order to prove this charge, the state must show have a chemical sobriety test showing that the driver’s blood alcohol content was at or above the 0.08% or showing the presence of illegal controlled substances.
1.2 Sentencing
1.2.1 1st, 2nd, & 3rd Offenses: Misdemeanor
1.2.2 4th Offense, DUI: Subject to a fine between $1,000 and $5,000 and imprisonment of 1-5 years.
1.3 Defenses
1.3.1 To defend against a charge of DUI Less Safe, a defendant must either show…
1.3.1.1 {1} that the state has not proven that he was operating or in physical control of a motor vehicle
Or
1.3.1.2 {2} that the state has not shown that he was impaired or less safe to drive because of drug or alcohol influence.
1.3.2 To defend against a DUI Per Se charge, the defendant must show that the state has not proven that the driver’s blood alcohol limit was at or above the legal limit of 0.08% or that the driver was not operating or in physical control of the vehicle.
2. DUI with Vehicular Homicide
2.1 Elements Vehicular Homicide is a homicide resulting from the commission of a serious traffic offense, such as reckless driving, evading police, or as in this case, DUI. If someone dies in an accident where the driver in the other vehicle was drunk and caused the accident, then the driver of the other vehicle may face a vehicular homicide charge based on the underlying DUI. This charge does not require that the driver who caused the accident intended to violate the law or intended to cause the harm. Vehicular Homicide in the Second Degree is when a death results from the violation of any other less-serious traffic violation. Vehicular Homicide in the First Degree is a felony while Vehicular Homicide in the Second Degree is a misdemeanor. O.C.G.A. § 40-6-393.
2.2 Sentencing
2.2.1 1st Degree: 3-15 years in prison.
2.2.2 2nd Degree: up to 1 year in jail or up to a $1,000 fine, or both.
2.3 Defenses
2.3.1 To defend against a charge of Vehicular Homicide with an underlying DUI, a defendant must show that the state has not sufficiently proven that…
2.3.2 {1} the defendant was driving under the influence of drugs or alcohol;
and/or
{2} the defendant did not cause the accident that caused the harm.
3. DUI with Serious Bodily Injury (Serious Injury by Vehicle)
3.1 Elements
A DUI with Serious Bodily Injury occurs when a driver who is under the influence of drugs or alcohol causes an accident that results in serious bodily injury to another person. O.C.G.A. § 40-6-394.
3.2 Sentencing
This offense is punishable by 1-15 years in prison.
3.3 DefensesTo defend against a charge of Serious Injury by Vehicle with an underlying DUI, a defendant must show that the state has not sufficiently proven that…
{1} the defendant was driving under the influence of drugs or alcohol;
and/or
{2} the defendant did not cause the accident that caused the harm.
4. DUI that endangers a child
4.1 Elements
When DUI causes the endangerment of a child, the child endangerment charge is tried as a separate offense from the underlying DUI. O.C.G.A. § 40-6-391(l). If the influence of drugs or alcohol causes the driver to put a child in danger, such as driving recklessly with a child in the backseat or neglecting to properly buckle up the child, then the driver could face a charge of child endangerment in addition to the DUI.
4.2 Sentencing (O.C.G.A. § 16-12-1(d))
4.2.1 For the first and second offenses, this charge is a misdemeanor punished by a fine of $1,000 or less or imprisonment for less than 12 months, or both.
4.2.2 Upon the third offense, this charge is a felony punishable with a fine of $1,000 to $5,000 or imprisonment of 1-3 years, or both.
4.3 Defenses
4.3.1 Show that the state has not presented sufficient evidence that the child was endangered by the DUI.
4.3.2.Show that the state has not presented sufficient evidence of the underlying DUI.
Josh T. Teague
Teague Law
Kennesaw & Ellijay
706-273-1286 / 833-4-Teague
