Yes, You Can be Charged with DUI in Georgia even if You Don’t Provide a Blood, Breath, or Urine Test

One question I often get from people who are charged with Driving Under the Influence (DUI) in Georgia is, “How can I be charged with DUI if I didn’t give them a test?” The Georgia DUI statute O.C.G.A. 40-6-391 has six subsections for the different types of DUI charges under Georgia law. The six subsections are as follows:

• O.C.G.A. 40-6-391(a)(1) - A person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.

• O.C.G.A. 40-6-391(a)(2) - A person shall not drive or be in actual physical control of any moving vehicle while under the influence of any drug to the extent that it is less safe for the person to drive.

• O.C.G.A. 40-6-391(a)(3) - A person shall not drive or be in actual physical control of any moving vehicle while under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive.

• O.C.G.A. 40-6-391(a)(4) - A person shall not drive or be in actual physical control of any moving vehicle while under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive.

• O.C.G.A. 40-6-391(a)(5) - A person shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.

• O.C.G.A. 40-6-391(a)(6) - A person shall not drive or be in actual physical control of any moving vehicle while subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.

• O.C.G.A. 40-6-391(b) - The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.

The first four subsections of DUI offenses, O.C.G.A. 40-6-391(a)(1-4), also known as DUI - Alcohol Less Safe, DUI - Drugs - Less Safe - DUI - Inhalants, and DUI - Multiple Substances, do not require a chemical test of blood, breath, or urine to determine whether alcohol or drugs are within your body. You can be charged with DUI if you refuse to take a chemical test of your blood, breath, or urine if the State of Georgia can prove beyond a reasonable doubt that you were driving or in physical control of any moving vehicle while under the influence of any alcohol, drug (including lawfully prescribed drugs), glue, aerosol, or any toxic vapor to the extent that it made you less safe to drive than someone not under the influence of that substance. The last two subsections, also known as DUI - Alcohol Per Se and DUI - Drugs Per Se - O.C.G.A. 40-6-391(a)(5-6), require a blood, breath, or urine test in order for you to be charged with those offenses.

It is very common to be charged with both DUI - Less Safe and DUI - Per Se if you provide a blood, breath, or urine test that is over .08 for alcohol or positive for drugs. You cannot be charged with DUI - Alcohol Per Se if you provide a test that is below .08, but you can still be charged with DUI - Less Safe if you provide a sample that is less than .08 for alcohol or does not test positive for any drugs.

Remember, just because you have been charged with DUI does not mean you are guilty of the offense. There are defenses to every DUI case and speaking to an experienced and knowledgeable Georgia DUI attorney who can discuss those defenses with you can help you understand the charges you are facing and the pros and cons of different resolutions. If you would like a free consultation, please call or text 678-753-6431 today.