Driving Under the Influence of Drugs: the “Other” DUI

The following subsections of O.C.G.A. § 40-6-391 lay out the framework under which the State may charge a driver with DUI due to the consumption of drugs or a combination of drugs and alcohol.

(a) A person shall not drive or be in actual physical control of any moving vehicle while:

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) 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;

(4) 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;

(6) Subject to the provisions of subsection (b) of this Code section, if 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.

(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.

Marijuana: as you will note from subsection (6) above, the presence of any amount of marijuana in a driver’s blood or urine can lead to a charge of Driving Under the Influence. Due to the way it is metabolized, marijuana stays in a person’s system far longer than most drugs. For daily users, it can remain in their bloodstream for at least 30 days, if not longer. Even if the State can introduce evidence that the driver and consumed marijuana within the last thirty days, it still must show that the driver was under the influence of marijuana on the date in question.

Prescription Drugs: It comes as a surprise to many drivers that they can be charged for driving under the influence after having taken medication that has been legally prescribed to them. As you will note from subsection (6)(b), having a valid prescription is NOT a defense. But, the legal question is not whether you took the prescription, but whether such consumption rendered you a “less safe driver”. That is a factual question that the State will attempt to prove through a combination of standardized field test results and other “indicia of intoxication” e.g, slurred speech, failing to maintain lane, etc.

Drug Recognition Experts: More than 250 police officers have been trained as “drug recognition experts” (DRE’s) in Georgia, a type of training that is supposed to enable officers to determine if a driver is under the influence of drugs.

DRE is a twelve step National Highway Traffic and Safety Administration (NHTSA) standardized national curriculum that has been designed (but have yet to be vigorously tested) to supposedly detect impaired drivers at roadside. As part of that evaluation, the arresting officer will administer the Standard Field Sobriety Tests that were designed to detect the presence of alcohol. If the arresting officer believes that driver’s performance on the FST’s does not match the reading on the portable breath test, the officer may attempt to conduct the additional tests to develop evidence that the driver is under the influence of drugs. Such tests may include the Romberg test, dark room examinations, and checking the pulse and temperature. All of these “tests” are subject to false positives that may lead to an arrest when no drugs are present.