There are two theories under which Georgia prosecutors may charge a DUI offense. Under the first theory the State must prove that the driver's physical and mental faculties were impaired to a degree to make the defendant an unsafe driver as a result of alcohol. This type of case can be pursued even if there is no blood, breath, or urine alcohol content test. The State will prove this theory with evidence such as the arresting officer's testimony regarding the driver's physical appearence, driving pattern and field sobriety test results.

The second way the State may attempt to prove a DUI charge is when there has been a chemical test and the offender is determined to have an unlawful blood alcohol level. This charge has nothing to do with the driver's actual ability to safetly drive, as this offense is concerned only with body chemistry. The offense is committed simply by having an unlawful blood alcohol level, and "operating" an automobile. The unlawful blood alcohol level for persons over 21 years of age is .08% or higher. For persons under 21 years of age, the limit is now only 0.02%.

CRIMINAL CONSEQUENCES

If convicted for a first offense DUI, fines can range between $300 to $1,000. In addition, jail sentences between 10 days and 12 months may be imposed, but all but 24 hours of the sentence may be suspneded, meaning that most persons will have to serve at least 24 hours in jail. The only conditions when a person may avoid the 24 hour mandatory jail sentence is when a first offender has a BAC of less than .08%. This means that a person who refused the chemical test may be entitled to no jail time, but it is the judge's discretion as to sentencing. Also, a minimum of 40 hours of community service is mandatory, but persons under 21 with a first offense and who have a BAC level of less than .08% must perform not less than 20 hours of community service.

For those 21 and over, a one-year suspension of driving privileges may also result from a first time conviction. But note that a "work permit" is available to first offender adults if the driver has a Georgia license. After 120 days and completion of the DUI driving school course, application for reinstatement by drivers 21 and older is possible.

FIVE-YEAR LOOKBACK PERIOD

Georgia has MANDATORY increased minimum punishments for DUI "repeat offenders." Repeat offender status is determined by a five-year "lookback" period. This means that the State can "lookback" for a period of five years to determine if the offender is a repeat offender. The method for determining the five years is to take the date of arrest from the most current offense and take the date of the previous arrest and see ifthe two lie within five years. It is important to take teh date ofarrest and disposition to determine the five-year lookback period.

It is important to note that judges are not bound to this five year lookback period, because it only applies to mandatory minimum sentences. Judges have the discretion to look beyond the five-year lookback period to determine an offender's sentence and may enhance the sentence for previous DUI's beyond the five-year lookback period, but the enhancement is not mandatory.