HARDMAN LAWYER – Georgia DUI Case Law Updates and News


COVID-19 DUI Administrative License Suspension Update**
On September 25, 2020, the Georgia Department of Driver Services released a new memorandum with regard to admin suspensions in DUI cases. 
Quicks Facts:
1. If you refused a State blood or breath test and received a 1205 Form (Temporary Driving Permit), that permit is good for a total of 135 days. 
2. It is critical to remember that you only have 120 days from the date of your 1205 Form to request a hearing on the suspension of your license. If you do not either have an ignition interlock device installed a get that limited permit, or, request the hearing, you will be subject to a 1 year license suspension if you have a Georgia driver’s license. 
​3. If you opt for the ignition interlock device permit instead of requesting a hearing, you STILL only have 30 days to do that or you will be subject to a 1 year license suspension.
4. If you don’t have a Georgia license, your privilege to drive in Georgia may be suspended for a year. 


Memorial Day Weekend Includes Enforcement of Boating Laws & Social Distancing for Game WardensFor Immediate Release: May 21, 2020
SOCIAL CIRCLE – As Memorial Day quickly approaches, Georgia Game Wardens across the state are gearing up for a very busy weekend on the lakes, rivers, beaches, and on State Parks. They will be patrolling all state waterways, making sure the thousands of recreation seekers are lawfully enjoying themselves. This year, however, they have an added responsibility – making sure everyone is complying with the social distancing executive order.
“The Division will have a strong presence on our state impoundments, rivers and beaches across Georgia, addressing boating violations and emphasizing Boating Under the Influence (BUI) enforcement in order to keep our waters safe,” said DNR Law Enforcement Division Director Colonel Thomas Barnard. “They will also be addressing any violations regarding the Governors Executive Order.”
The Executive Order, which is in effect through May 31st, requires a 6-foot distance between individuals from different households, and therefore applies to people visiting beaches, lakes, parks and other public locations as well.
“With social distancing, our goal is compliance. We are not focused on writing tickets or making arrests related to social distancing. From what we have seen so far, when we ask people to comply, they do, and that is what we are looking for,” said Barnard.
When it comes to violations of boating laws, enforcement will be tight, especially for those who choose to operate a vessel while impaired. The Division has a zero-tolerance policy for BUI and violators will go to jail.
In Georgia there were 113 boating incidents with 26 fatalities in 2019, and Game Wardens made 209 boating under the influence arrests. So far in 2020, there have been 40 boating incidents, resulting in seven fatalities, and 25 people have been arrested for BUI. Additionally, there were 44 drownings statewide last year and 14 so far this year.
Boating Safety Tips
• Designate an operator. Do not drink and operate a boat. Georgia law states anyone operating a vessel with a blood alcohol content level of .08 or higher is boating under the influence.
• Take a boating safety course. Recommended for everyone, but anyone born on or after January 1, 1998 is required to have successfully completed a DNR-approved boater safety course before operating a motorized vessel on Georgia waters. Visit https://gadnrle.org/boating-education for course information.
• Wear a life jacket. Children under 13 years of age are required by law to wear a life jacket while onboard a moving vessel, but it’s highly recommended for EVERYONE to wear a life jacket.
• Don’t overload your boat with people or equipment. Check the capacity plate for the maximum weight or the maximum number of people the boat can safely carry.
• Use navigation lights at ALL times between official sunset and official sunrise. Check lights before it gets dark.
• Watch your speed. The 100-foot law applies to ALL size vessels and prohibits operation at speeds greater than idle speed within 100 feet of a moored or anchored boat or any boat that is adrift, a dock, pier or bridge, persons in the water, any shoreline at a residence, public park, beach or swimming area, a marina, restaurant or any other public use area, or any vessel, unless overtaking or meeting another vessel in compliance with the rules of the road.
The Georgia Department of Natural Resources Law Enforcement Division is committed to conserving our natural resources and protecting the people we serve through fair and vigorous law enforcement, quality education, and community involvement.

Mark McKinnon, Public Affairs Officer
Office: (770) 918-6408  


Many of Georgia’s DUI School (Risk Reduction Class) providers are now providing online courses in response to the current COVID-19 pandemic. It is important to remember that there are many **non-certified** DUI schools online. Below is a link to the Georgia Department of Driver Services state-certified schools:



Picture Texting while driving is a common way to get pulled over in Georgia. Below is a short summary of the law and what is allowed and what is not allowed in Georgia and the penalties for violations of the law:

What is allowed:
1) Earpieces and headphones;
2) Apple Watches;
3) Siri- you can press one button to activate your siri assistant on your device;
4) You can use your GPS but cannot type in an address while you are moving.
**You are allowed to make emergency calls for emergency situations without using a hands-free device. It is relatively unlikely however that you will be pulled over for a situation where you are making an emergency call.

What is NOT allowed:
1) Taking off your seatbelt to reach for your phone;
2) holding or supporting your phone with any part of your body (it cannot be sitting in your lap)
3) Any type of messaging (text, Facebook, email or other type of message)
4) Recording any type of video while you drive ( if there were to be a legal search of your information, you should not have a live video or picture posted to your social media account while driving or that evidence may be used against you)

All violations of this section of Title 40 of the traffic code are misdemeanors.
1st Violation– Up to a $50 fine and 1 Point on your license
**If it is your first offense and you are able to show a receipt that you have purchased a hands-free device, your fine will be waived and there will be no points assessed on your driver’s license. 
2nd Violation– Up to a $100 fine and 2 Points on your license
3rd Violation– Up to a $150 fine along with 3 Points on your license

​Note: Many DUI cases and other types of criminal investigations begin with a stop for someone using their phone while driving. You may also be held liable for personal injuries or property damage if it is proven that you were using a mobile device while driving. It is important to make sure that you have a hands-free device to avoid any negative consequences to you, your license or another person due to using a mobile device while driving.


Picture Getting arrested for DUI Marijuana is very different from an alcohol related DUI arrest. Below is a brief summary of some factors and license suspensions that are involved in a Georgia DUI marijuana case:

Georgia code section for DUI marijuana O.C.G.A. 40-6-391 (A)(6) and subsection (b) read:
A person shall not drive or be in actual physical control of any moving vehicle while
…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.
The above is clarified in subsection (b) in part: 
such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely.

Being “incapable of driving safely” is a key part of marijuana DUI cases. The State prosecutors must show that a person is unsafe to drive because they have used or consumed  marijuana. Although it is likely that if someone uses a large amount of marijuana before driving that their driving skills may be affected, this is many times not the case after DUI arrest. Marijuana may have a strong odor after it is burned that may last for hours in a car or on a person’s clothing or body. This evidence is frequently evidence of use and NOT EVIDENCE OF IMPAIRMENT. 

Evidence of Use of marijuana as opposed to evidence of impairment:

  • Many times officers use the fact that they allegedly smell marijuana coupled with other factors to claim that someone is under the influence of marijuana such as red eyes or a yellow tongue. There are obviously many other factors that can cause red eyes and a yellow tongue such as being tired, contact lenses, eating a yellow piece of candy, gum, or any number of medical conditions.​ Possession of marijuana in Georgia is also illegal. If a person has marijuana in their car or in their pocket, they are subject to being arrested for possession. Possession is a completely different and separate offense than DUI marijuana although the fact that someone is in possession of marijuana is frequently used against them in the DUI case.
  • The key factor in marijuana DUI cases is that evidence of use does not necessarily indicate that a person is impaired by marijuana to an extent that renders them “incapable of driving safely.” The State must prove beyond a reasonable doubt that the reason that a person in unable to drive safely is because they have used marijuana. No matter how much or how little marijuana someone has used, the amount must make them unsafe to drive to be convicted of DUI.
  • The State must show that someone unable to drive safely is after they have used marijuana because there is no “legal limit” or “per se” amount of marijuana that must be in a person’s blood or urine for them to be convicted of a marijuana DUI like in an alcohol DUI case where the legal limit is .08 g/L. 
  • ​The CDC’s webpage says that “it is unclear whether marijuana use actually increases the risk of car crashes.” This is because officers do not have a method to determine what amount of marijuana is in a person’s system at the time of arrest on the roadside. People also drive unsafely very frequently when there is no marijuana involved. According to articles the effects of marijuana typically begin to subside within 1 hour. Because evidence of “use” may last for hours or weeks  (in the case of a blood test) many people are arrested for DUI marijuana when most of the evidence obtained by the police officers indicates use not impairment.
  • It is important to have a Georgia DUI lawyer that knows what evidence the State has/does not have/and needs to show in a Georgia marijuana DUI case. 
License Suspension for Marijuana DUI’s
The license suspension for a 1st Marijuana DUI in Georgia is: 180 days. This is a hard suspension and there is no work permit available. You can read the code section for this license suspension here: O.C.G.A. 40-5-75.


Picture As of July 1, 2019, Georgia will have a new implied consent notice regarding the test officers ask for after a DUI arrest. .

When officers arrest someone for DUI, they typically proceed to administer roadside field sobriety tests (HGN test, Walk and Turn, One Leg Stand, Portable Breath Test) and if an arrest is made, request a state-administered test to determine a blood alcohol level or the presence of other drugs. Because of the Georgia Supreme Court’s holding in Elliott v. State, 824S.E.2d 265 (2019), decided on February 18, 2019, a person’s refusal to submit to a breath test cannot be offered into evidence against them at trial. It is important to note that this is not the “portable breath test” that is usually given as part of the field sobriety tests on the side of the road. The portable breath test or “breathalyzer” is only admissible in court to the extent that the officer obtains a positive or negative reading. The portable breath test does indicate a numerical result, but that blood alcohol number/result is not admissible in court. 

Refusal to take tests offered at trial
Formally, the Intoxilyzer 9000 (breath testing instrument that is usually administered at the jail or police station) was utilized to get an admissible state breath test after an arrest was made. If the results are .08 grams or more, that is per se DUI in the State of Georgia. Because of the holding in the Elliott case and other cases, the Supreme Court has decided that Georgians do have a Constitutional right to refuse a breath test and that refusal cannot be offered into evidence at their DUI trial. People refuse chemical tests in DUI cases for a variety of reasons-i.e. scared to have a needle stuck in their arm inside of the jail, don’t understand what implied consent means (because they are not lawyers and are hearing this warning for the first time ever), etc. The problem is that a jury may infer that the reason someone refused a test is “because they were drunk.” 

End Result
Now, because of the rulings in recent cases, police officers in Georgia are no longer requesting breath tests after they make DUI arrests. The officers either request a blood or urine test. If you refuse either of those tests, your refusal to submit may be offered into evidence against you at trial. 


A common question in DUI cases is: “Can I use a first offender plea to a DUI?’
The answer to that question is “No.” The provision that specifically forbids a first offender plea to a DUI charge in Georgia is included in O.C.G.A. 42-8-60(j)(10) listed at the very bottom below:

(j) The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for:
(1) A serious violent felony as such term is defined in Code Section 17-10-6.1;
(2) A sexual offense as such term is defined in Code Section 17-10-6.2;
(3) Trafficking of persons for labor or sexual servitude as prohibited by Code Section 16-5-46;
(4) Neglecting disabled adults, elder persons, or residents as prohibited by Code Section 16-5-101;
(5) Exploitation and intimidation of disabled adults, elder persons, and residents as prohibited by Code Section 16-5-102;
(6) Sexual exploitation of a minor as prohibited by Code Section 16-12-100;
(7) Electronically furnishing obscene material to a minor as prohibited by Code Section 16-12-100.1;
(8) Computer pornography and child exploitation as prohibited by Code Section 16-12-100.2;
(9) (A) Any of the following offenses when such offense is committed against a law enforcement officer while such officer is engaged in the performance of his or her official duties:
(i) Aggravated assault in violation of Code Section 16-5-21;
(ii) Aggravated battery in violation of Code Section 16-5-24; or
(iii) Obstruction of a law enforcement officer in violation of subsection (b) of Code Section 16-10-24, if such violation results in serious physical harm or injury to such officer.
(B) As used in this paragraph, the term “law enforcement officer” means:
(i) A peace officer as such term is defined in paragraph (8) of Code Section 35-8-2;
(ii) A law enforcement officer of the United States government;
(iii) An individual employed as a campus police officer or school security officer;
(iv) A conservation ranger; and
(v) A jail officer employed at a county or municipal jail; or
(10) Driving under the influence as prohibited by Code Section 40-6-391.


UPDATE (10/21/2019) Georgia Supreme Court overrules Georgia Court of Appeals** Mobley v. State, S18G1546
The Georgia Supreme Court overruled the admissibility of the data from the airbag control module which showed that Mobley’s Dodge Charger was traveling at nearly 100 MPH before the crash where his vehicle collided with another vehicle killing both of its occupants. The Supreme Court held that the officer’s warrantless search of the data in the module was a search for purposes of the 4th Amendment and that there was no valid exception to allow admissibility of the data after the warrantless search. The Court held that the data was not admissible under the doctrine of inevitable discovery because the State failed to show that the officers were actively pursuing a warrant at the time the search was conducted. The officers merely searched the data in the module without a warrant and then went and applied for a warrant later. The Supreme Court held that the fact that the State sought a warrant after the fact would vitiate the warrant requirements. The trial court should have suppressed the evidence from the airbag control module at the pre-trial motion to suppress. 

Many newer vehicles have an Airbag Control Module (ACM) that records certain facts about the vehicle before and during a crash. On June 27, 2018, The Georgia Court of Appeals heard a case in which the driver had moved the trial court by a motion to suppress, the introduction of evidence that he was traveling at 97 MPH approximately 5 seconds before a crash that killed two people in separate vehicle.

The officers in this case testified that the ACM records certain aspects of the vehicle at or immediately preceding airbag deployment, including speed, engine speed, brake status, throttle position, engine revolutions, driver’s seat belt status and brake switch status, as well as time from maximum deceleration to impact, time from vehicle impact to airbag deployment, and diagnostic information on the vehicle’s systems.

The evidence had been obtained by the State before an application for a search warrant was granted to retrieve the data from the ACM. The search warrant was granted the day after the evidence had already been retrieved from the ACM and the Court of Appeals held that there was no error by the trial court in denying the defendant’s motion to suppress because there was probable cause to retrieve the data from the ACM and that the data would have been inevitably discovered. 

It is important to remember that your car or truck may be recording what is happening in your vehicle and that may be used against you in a criminal case. 
This was a case of first impression for the Court of Appeals. You can read the entire case here Mobley v. State, 816 S.E.2d 769 (2018)