The first important thing to understand about your DUI is that there are generally two different types of DUI cases in Georgia.  The first is called "Per Se" DUI and the second is called "Less Safe Driver" DUI.  Falling under one category or the other can greatly change the way your DUI defense is handled. 

Per Se DUI

To be charged with a "Per Se" DUI, you must either have an unlawful blood alcohol content (BAC) or you must be under the influence of any amount of contraband drugs. For this type of DUI, the prosecutor (the person representing the government at trial) does not have to show that you were a "less safe driver," but rather only that you had an unlawful BAC or were under the influence of contraband drugs.  At Kaila Bagwell, our attorneys understand the rules of evidence and will attempt to suppress the evidence of your BAC.  If we are successful at suppressing this evidence, the prosecutor will either be forced to move forward with a "less safe driver" case or drop the charges against you altogether (both of these actions are favorable to you).  During your free consultation with us, we will spend some time determining exactly how the arresting officer tested your BAC and discuss whether it is likely that we can have that evidenced suppressed or not.  What constitutes an unlawful BAC depends on a few different variables and will be discussed below. This is the most commonly referred to type of DUI and, for that reason, most people think that this is the only type of DUI.  However, in Georgia, there is also a second type of DUI: the "Less Safe Driver" DUI.

Less Safe Driver DUI

If you have any alcohol in your system, no matter how small that amount is, you may still be charged with a "Less Safe Driver" DUI provided that the alcohol made you a "less safe driver" than you otherwise would have been.  In this type of case, the prosecutor must show that you were under the influence of any amount of alcohol and that the consumption of the alcohol caused you to be a "less safe driver."  In most of these types of trials, the prosecutor will likely offer the testimony of the arresting police officer.  The officer may testify to observations that he made at the time of your arrest such as bloodshot eyes, the smell of alcohol on your breath or slurred speech. 

Punishment is a difficult thing to predict because, first of all, you may not even be convicted.  Furthermore, there are many possibilities that may be explored as far as pleas and negotiations with the prosecutor go.  But to give you a better idea of the possibilities, the type of punishment you will be facing depends very much on the number of DUI convictions you have had in the past.

First DUI Offense In The Past 5 Years

If this is your first DUI offense in the past five years, you will likely be facing some combination of 1) a Fine, 2) Jail Time, 3) Community Service and 4) a License Suspension.  Let's examine each in a little more depth.

The Fine:

Your fine will probably range between $300 and $1,000 plus surcharges which will be added on by the court.  The court surcharges will often be approximately 12% - 15% of the fine amount.

Jail Time:

Your jail time will probably range between 10 days and 1 year.  The judge at trial will have the discretion of suspending or probating all but 24 hours of your sentence and most, if not all, of this 24 hours may include the time you spent in jail the day/night you were arrested.  Often the judge will give you 2-for-1 time for the time already spent in jail.  You will be placed on probation for 1 year less the amount of time that you spent in jail.

Community Service:

If you are over the age of 21, you will need to spend at least 40 hours performing community service.  If you are under 21, you will need to spend at least 20 hours performing community service.

License Suspension:

If you are 21 years old or older, you will have your license suspended for 1 year.  However, if you complete the alcohol/drug risk reduction program (DUI Classes) and pay a reinstatement fee, you will be able to apply for the reinstatement of your license after 120 days.  If your DUI involved drugs rather than alcohol, you will not be able to apply for re-instatement for at least 6 months.  During the initial 120 day time period during which your license is suspended (in an alcohol case only), you may be eligible to apply for a "limited license" which will allow you to drive to work, school or medical treatment only. If your DUI case involved drugs rather than alcohol, you will not be able to apply for any temporary or limited licenses.

Second DUI Offense In The Past 5 Years

If this is your second DUI offense in the past five years, you will likely be facing some combination of 1) a Fine, 2) Jail Time, 3) Community Service 4) a License Suspension and 5) Name Publication.  Let's examine each in a little more depth.

The Fine:

Your fine will probably range between $600 and $1,000 plus surcharges which will be added on by the court.  The court surcharges will often be approximately 12% - 15% of the fine amount.

Jail Time:

Your jail time will probably range between 90 days and 1 year.  The judge at trial will have the discretion of suspending or probating all but 3 days of your sentence and keep in mind that some of your jail time may have been spent in jail the day/night you were arrested.  Often the judge will give you 2-for-1 time for the time already spent in jail. You will be placed on probation for 1 year less the amount of time that you spent in jail.

Community Service:

You will have to spend a minimum of 30 days (or 240 hours) performing community service.

License Suspension:

Your license will be suspended for 3 years and you will not be eligible to apply for re-instatement for at least 18 months. If you have completed the alcohol/drug risk reduction program (DUI Classes), then between 12 months and 18 months you may be able to apply for a temporary limited permit to drive to work, school or to medical treatment, but you will likely need to have a device installed in your car that will not allow you to start your car if you have any alcohol in your blood. All of your license plates will be confiscated and will not be returned until you have served the full 3 year suspension or until you have received a limited permit.

Name Publication:

Your name, address and picture will be published in the newspaper along with the date and time of your DUI.  You will be charged $25 for this publication to be made.

Third DUI Offense In The Past 5 Years

If this is your third DUI offense in the past five years, you will likely be facing some combination of 1) a Fine, 2) Jail Time, 3) Community Service, 4) License Revocation and 5) Name Publication.  Let's examine each in a little more depth.

The Fine:

Your fine will probably range between $600 and $1,000 plus surcharges which will be added on by the court.  The court surcharges will often be approximately 12% - 15% of the fine amount.

Jail Time:

Your jail time will probably range between 120 days and 1 year.  The judge at trial will have the discretion of suspending or probating all but 15 days of your sentence and some of that jail time may include the time spent in jail the day/night you were arrested.  Often the judge will give you 2-for-1 time for the time already spent in jail. You will be placed on probation for 1 year less the amount of time that you spent in jail.

Community Service:

You will have to spend a minimum of 30 days (or 240 hours) performing community service.

License Suspension:

You are now considered by the state to be a "habitual violator" and as such, your driver's license will be revoked for 5 years.  If you complete the DUI classes, go through counseling and assessment, complete any treatment recommended by your counselor and pay your re-instatement fees, you may be eligible for a probationary license after 2 years. You will likely need to have a device installed in your car that will not allow you to start your car if you have any alcohol in your blood. All of your license plates will be confiscated and will not be returned until you have served the full 3 year suspension or until you have received your probationary license.

Name Publication:

Your name, address and picture will be published in the newspaper along with the date and time of your DUI.  You will be charged $25 for this publication to be made.

In matters involving DUI, there are usually two different types of driver's license suspensions: 1) Administrative suspensions and 2) Suspensions based on a conviction or a guilty plea.

Administrative Suspension

If you refuse to take the test to determine your Blood Alcohol Content (BAC) or if your BAC is determined to be at an unlawful level, the arresting officer will file paper work to have your driver's license administratively suspended. This will take place even before your case comes to trial.  You only have 10 days to appeal or delay this type of suspension.  If you have received a DUI and need to file an appeal to stop your administrative suspension, please call us immediately at (770)271-4780.

Suspension Based on Conviction or Guilty Plea

This type of suspension happens after you have been convicted or plead guilty.  The various forms of this are discussed in the section above that discusses punishment.  The term of this type of suspension ranges from one to five years.  Depending on your past behavior, you may be eligible to apply for a limited or a probationary license.  If you are looking to apply for a limited or probationary license, please call us at (770)271-4780.

A successful defense against a DUI often begins at the moment you are pulled over by the police officer.  This section will cover one way in which these situations may be handled to help your defense.  Please keep in mind that the purpose of this site is not to give you legal advice, but rather just to give you personal information so that you can make an educated and informed decision for yourself.  If you would like more personalized legal advice, please contact us at (770)271-4780 to schedule a free consultation with an attorney.  If you have already been stopped before you had a chance to read this page, please do not panic.  Simply call one of our friendly attorneys at (770)271-4780 and they will tell you the best way to proceed in your situation. 

Before we can discuss whether you should take "the test" or not, we must first talk about the difference between the "field sobriety test" and the "state administered test."

Field Sobriety Test

The "field sobriety test" is the type of test that is given by the police officer on the side of the road when you are pulled over.  Here are some general principles or tips to keep in mind with regards to this type of test:

• During the entire time you are pulled over, you are being recorded both audibly and visually.  Please be respectful to the officer at all times.  The officer is being recorded as well and his behavior can be used against him much like your behavior can be used against you.
   

• These "Field Sobriety Tests" are not admissible in court as proof that you were under the influence of alcohol or drugs.  However, they can still be used to support the arresting officers decision to arrest you and to prove that you were a "less safe driver."
   

• You have the right to refuse to take these tests. If you decide to not take these tests, please inform the officer in a well-behaved fashion.  The officer will likely place you under arrest and will ask you to take the "state administered test."  The "state administered test" will be discussed below. Your license will not be revoked or suspended for refusing to take the field sobriety tests.
   

• During the field sobriety tests, the officer will be looking for signs that you are intoxicated.  Some of these signs may include not following instructions exactly, being unsteady or stumbling, slurred speech or beginning before the officer finishes giving instructions.  All of these signs can be used to support the officers case during your DUI trial. 

Examples of Field Sobriety Tests

There are currently a number of different field sobriety tests used in the state of Georgia.  Some of these include:

• Alcosensor: This is a hand-held machine which you will be asked to blow into by the officer.  This is not the “breathalyzer” test.  This machine’s readings are only admissible to show whether you had alcohol in your system, but not to show exactly how much alcohol was in your system.
   

• Walk and Turn:  The officer will ask you to take nine steps, heel-to-toe, then pivot around the foot that is on the ground, and repeat the nine steps back toward the officer.  The instructions for this test are notoriously confusing, and there are many, many, signs the officer is looking for.
   

• One-leg-stand:  The officer will ask you to stand on one foot, with your other foot about six inches off the ground, look at your raised foot, and count to thirty.  Again, he is also looking at whether you start before he is finished instructing you, whether you count out-loud, keep your hands by your side, etc…  Follow his instructions exactly, if you choose to take this test.
   

• Horizontal Gaze Nystagmus (HGN):  The officer will ask you to follow his finger or a pen with your eyes.  He is looking to see if your eyes move smoothly, or if they follow a jerky path, like windshield wipers across a dry windshield.

There are also a number of tests that are not field sobriety tests that are used to determine if you have your wits about you at the time you are stopped.  Some of these include:

• Saying your ABCs:  Though this sounds simple, they may ask you to start from a random letter, such as N, or Q.  They may also ask you to recite the alphabet backwards.  They look for whether you have to sing to complete the test, how difficult the test is for you, how many letters you get wrong, etc… 
   

• Touching your finger to your nose:  Again, the test is more difficult than it sounds.  It can only be used against you.  You may simply wish to respectfully refuse to take this test.
   

• Miscellaneous:  By now you understand these basic, common-sense tests.  They may ask you to count on your fingers, hop on one leg, or do other silly things.  These tests are intended to make you look intoxicated.  Simply refuse, politely, to take these tests.

State Administered Test

The "state administered test" is the test that the officer will ask you to take.  It's a chemical based test that is used to test your breath, blood, urine or all three.  The officer must tell you that if you refuse to take this test your license will be suspended for 1 year.

When It Is Okay To Take The State Administered Test

If this has been your first DUI in the past five years, you are over the age of 21 and there are no aggravating circumstances, such as an auto fatality involved in the DUI, then taking the state administered test should not hurt your case too much.

When You Might Not Want To Take The State Administered Test

If there were unusual aggravating circumstances involved in your case, such as an automotive death or a serious injury to somebody, you might not want to take the state administered test.  In situations like this, you may be facing more serious charges than just DUI (such as vehicular homicide).  In such instances, losing your license for 1-5 years is not your most pressing concern.

As mentioned above, if you are under the age of 21, the prosecutor only needs to prove that you had a BAC of 0.02 to convict you of "Per Se" DUI.  Without an actual state administered test, it may be difficult for the state to prove this level of BAC.

It is important to remember that for any DUI, acting quickly is very important.  If you are facing an administrative suspension of your driver's license and you do not appeal that decision within 10 days, you may lose your right to an appeal.  Please take it upon yourself to begin the administrative appeals process or call us immediately at (770)271-4780 so that we can begin the process for you, especially if it is fewer than 48 hours until your 10 day appeal period expires. 

Rajeev Kaila, B.S.E.E., J.D. and Samuel R. Bagwell, B.B.A., J.D. are the founding partners at Kaila Bagwell, LLP. Both Rajeev and Sam are graduates of the University of Georgia School of Law. Both partners share a tremendous interest in the area of DUI defense and have been practicing in this area since the firm was opened. Both have been known to say that DUI defense is a special area of law which gives them an opportunity to help people that normally don't have experience with the criminal law system.  Rajeev and Sam understand what it is like to be judged and won't judge you.  They will provide a professional legal defense at a fair price.
 

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