DUI drugs charges can be a
source of confusion for defendants and lawyers alike. This article will explore
these laws and explain their meaning, what must be proven, how they are proven,
and how to defend against them.

There are three ways to
charge DUI Drugs cases: (1) DUI Drugs – Less Safe; (2) DUI Drugs – Per Se; and
(3) DUI Drugs – Combined Effect.

DUI Drugs – Less Safe

Georgia law prohibits a
person from driving a 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)(2). This “less safe” statute requires proof (beyond
a reasonable doubt) that the quantity or amount of the prescribed, illicit, or
even over-the-counter drug in the person’s system caused impairment or rendered
the person to be a “less safe driver.” Therefore, a person can be prosecuted even though the
drugs were legally prescribed or were provided over-the-counter, so long as
consuming those drugs caused you to be a less safe driver.

The “less safe” provision
is the most common way DUI drugs charges are prosecuted. The State is not
required to prove the accused had a particular level of drugs in their system.
As a result, the State may prosecute even though no chemical test exists. The
arresting officer will look for the following indications of impairment:

  • Admitting to using
  • Bloodshot or watery
  • Slurred or slow speech
  • Presence of drugs in
    vehicle or on person
  • Bad driving
  • Poor performance on
    Standardized Field Sobriety Tests

The key to defending these
“less safe” drugs cases is raising doubt as to whether the drugs taken were the
actual cause of the bad driving complained of. This causation element is something
the State is required to prove. There are many reasons for bad driving
unrelated to the consumption of drugs. In addition, defense counsel should
raise challenges to the arresting officer’s training and experience in
detecting and investigating DUI Drugs cases. In many instances, the arresting
officer does not have the degree of training required to properly investigate
these cases such as an officer who is qualified as a Drug Recognition Expert
(DRE). Furthermore, defense counsel should raise a Harper challenge to the scientific validity of the Romberg Field
Sobriety test if that test was performed by the accused. [1]

DUI Drugs – Per Se

Georgia law makes it
illegal for a person to operate a vehicle while there is any amount of marijuana or a controlled substance, as defined in
O.C.G.A. § 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 any alcohol is present in the person’s breath or blood. O.C.G.A.

Given the language of the
law, the mere presence of a drug (prescribed or not) will constitute a
violation of this code section. The question becomes how an arresting officer
would know whether the accused had a valid prescription or not? Without an admission,
this would be difficult for a prosecutor to prove.

Issues of proof aside, Love v. State, 271 Ga. 398 (1999), has essentially
wiped out the “DUI Drugs – Per Se” law entirely. The Love case held that O.C.G.A. § 40-6-391(a)(6), was too broadly
drawn, as it incriminates both legal and non-legal users of marijuana,
constituting a violation of the Equal Protection clause of both the Georgia and
United States Constitutions. This is the primary reason most DUI Drugs cases
are prosecuted as “Less Safe” cases.

What remains of the DUI
Drugs – Per Se statute is to punish those cases where someone is driving with
drugs in their system which offer no lawful use (cocaine, heroin, etc.).

DUI Drugs – Combined

Under O.C.G.A. §
40-6-391(a)(4), a person is prohibited from driving a vehicle while under the
influence of any two or more of the substances provided in the DUI code section
(alcohol, drugs, or toxic vapors) to the extent it is less safe for the person
to drive.

Again, we see the State
being required to prove the accused was a less safe driver because of the
combined effects of two or more intoxicants (alcohol and drugs – prescribed or
not). Although these cases present greater challenges, a skilled attorney can
raise doubt as to whether the combined effect of intoxicants actually caused
less safe driving.  

If you or someone you know has been arrested for driving
under the influence, contact the law firm of W. Scott Smith at
 today for a free
case evaluation
. You’ll find a local Atlanta DUI attorney ready to
aggressively fight on your behalf. You can also find out more detailed
information about Atlanta
laws here

[1] The
Romberg test consists of the subject tilting their head back, closing their
eyes, and counting in their head until the subject believes thirty seconds has
elapsed and then telling the officer when they believe those thirty seconds had