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License Consequences for DUI Convictions in Gwinnett Recorder’s Court

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By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI under the following circumstances:

  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of alcohol to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of any drug to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of a combination of any two or more controlled substances, which does include alcohol, to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while his/her alcohol concentration was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was any amount of marijuana or a controlled substance, as defined by O.C.G.A § 16-13-21, present in his/her blood or urine.

If an accused is convicted of DUI in Gwinnett Recorder’s Court, pursuant to O.C.G.A § 40-6-391, his/her license will be suspended. This is a mandatory suspension required by the Department of Driver’s Services. The length of the suspension is decided by how many prior DUI convictions he/she has had in the last five years. Those suspensions are as follows:

  • If the accused has not had a prior DUI conviction in the last five years:
    • The suspension will be for a period of 120 days.
    • During that suspension, the accused will be eligible for a limited permit to drive if he/she is a resident of Georgia, and he/she has not had a prior DUI conviction in the last five years.
    • After the 120-day license suspension, the accused will be eligible to get their permanent license back if he/she has completed a Risk Reduction Course, otherwise known as DUI school, and has paid a $210 reinstatement fee.
  • If this is the second DUI conviction in the last five years for the accused:
    • The suspension will be for a period of 18 months.
    • For the first 4 months of the suspension, there will be a hard suspension with no eligibility for a limited permit. This means for the first 4 months, he/she will not be able to drive.
    • After the first 4 months, he/she may be issued a limited permit if he/she installs an ignition interlock in their vehicle.
    • After the full 18 months, the accused will be able to reinstate their permanent license if he/she has completed a substance abuse evaluation plus recommended treatment and has shown proof of that completion to the Department of Driver’s Services.
  • The most serious license suspension happens to drivers who have been convicted of a third DUI in the last five years.
    • If that occurs, the driver will be considered a Habitual Violator.
    • This will require a 5-year license suspension, and there is no eligibility for a limited permit.
    • Only after two years can an accused be eligible for a probationary license to drive.
    • It is very important that the accused not drive if he/she is a Habitual Violator, as he/she could be arrested for a felony, if caught driving, that carries at least one year in jail.

Contact Us

Due to the severity of the license suspension consequences of a DUI conviction, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of defending a DUI, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with DUI in Gwinnett County, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.

Can I get a DUI if I am under .08 in Georgia?

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            Most of us are aware that the legal limit for a DUI for a driver over 21 years old is .08. What comes as a surprise to most, however, is that you can also be charged with DUI even if you were well below the legal limit. How is this possible? You can be arrested and charged with DUI, even if you blew below the legal limit, under Georgia’s DUI Less Safe law. In practice, it is a very common way to be charged with DUI in Georgia.

            Georgia law has criminalized DUIs into a few different categories. The two most common ways to be charged with DUI are DUI Per Se and DUI Less Safe. DUI Per Se occurs when a person is arrested after being alleged to be in control of a moving vehicle with a blood alcohol concentration of .08 grams or more. This means that after he or she was arrested, law enforcement obtained a blood alcohol reading either by a breath, blood, or urine test taken typically at the jail or a hospital.

What happens if I don’t blow or take a breathalyzer?

            In this situation, you can still be charged with DUI Less Safe. DUI Less Safe in Georgia means you were in control of a moving vehicle, after having consumed alcohol, to the extent it made you a less safe driver. Evidence in this situation may not include an actual BAC number, but the State will attempt to prove DUI with other pieces of evidence. For example, the State may bring forward evidence of an odor of alcohol, bloodshot eyes, open containers, and/or poor performance on field sobriety tests.

            In some instances, if you decline or refuse the breath or blood test at the officer’s request, the police officer will take out a search warrant to take your blood over your objection. In this situation, you can be charged with both DUI Less Safe and DUI Per Se if the BAC comes back as over .08.

What happens if I blow below the legal limit?

            In Georgia, you can still be arrested and charged with DUI Less Safe. This is because a BAC greater than .08 is not a requirement in DUI Less Safe cases. If you blow a .07, a .06, or even a .05, you can and will still be prosecuted for DUI. This seems shocking to some, but we see it happen regularly. The State, in this situation, still has to prove impairment- meaning the prosecutor must still prove you were a less safe driver because of the alcohol.

Georgia’s Law on Alcohol Content

In Georgia, you are Per Se impaired if your blood or breath test shows a result of .08 grams or more. If your BAC is more than .05 but less than .08 grams, there is no inference of impairment. This means it is up to the judge or the jury to consider whether or not you were actually a Less Safe driver or not. In Georgia, a BAC of even less than .04 can get you into court fighting for your life and freedom. In a scenario where the BAC was les than a .04, Georgia law has a presumption that you were NOT impaired. The State can rebut this inference through other evidence in a trial. A different BAC applies in cases where the driver is under 21 years old. In that situation, an under 21 DUI ‘legal limit’ is .02 grams.

We routinely see drivers with a ‘below the legal limit’ DUI have their cases prosecuted. Do not assume that the prosecuting attorney will throw the case out based on having been less than .08 grams. If you were arrested, the State will most likely bring the prosecution’s case with any other evidence they have, even if they do not have a BAC or if the BAC was below a .08 grams.

DUI cases are one of them most litigated cases in Georgia courtrooms. This is because there is so much at stake with a DUI conviction: jail time, lengthy and involved probation sentences, suspended licenses, and a criminal history that cannot be expunged. There are numerous defenses to DUI Less Safe and DUI Per Se cases, no matter what the BAC is or what county you were arrested in. If you or a loved one has been arrested for Driving under the Influence, call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.