A Paulding County criminal defense lawyer knows the following:
O.C.G.A. § 40-6-391(b) provides:
(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.
Driving under the influence of drugs—O.C.G.A. § 40-6-391(a)(2)—Misdemeanor—Requires proof of “incapable of driving safely”
In State v. Kachwalla, 274 Ga. 886, 561 S.E.2d 403 (2002), the Supreme Court of Georgia found that the decision in Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999), was concerned only with the disparate treatment afforded those drivers charged with the per se violation found in O.C.G.A. § 40-6-391(a)(6), and the Court upheld the constitutionality of O.C.G.A. § 40-6-391(a)(2) against the charge it violated equal protection. See also State v. Pittmon, 275 Ga. 139, 562 S.E.2d 185 (2002).
The Kachwalla Court was faced with an equal protection challenge based on the fact that “DUI—Prescription Drugs” calls for a higher standard under subsection (b) than under the other subsections. The Supreme Court of Georgia avoided the equal protection challenge altogether by concluding that “less safe to drive” and “rendered incapable of driving safely” were equivalent standards—legally, historically, and semantically. Therefore, a defendant accused of violating the statute which prohibited a person from driving while under the influence of any drug to the extent it was less safe for defendant to drive did not suffer disparate treatment in violation of equal protection, even though another statute set forth that a person charged with DUI who was legally entitled to use the drug other than alcohol did not commit DUI unless such person was rendered incapable of driving safely.
Prior court cases seemed to acknowledge that the difference in terminology (“less safe” being applied to alcohol and “incapable of driving safely” being applied to proscribed drugs) meant a higher standard of proof for drug cases. Carr v. State, 222 Ga. App. 776, 476 S.E.2d 75 (1996).
The Georgia Court of Appeals has been very liberal (for the prosecution) in upholding highly questionable convictions on some DUI-drug cases. See, for example, Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999);Doster v. State, 259 Ga. App. 605, 578 S.E.2d 262 (2003); c.f. Savage v. State, 252 Ga. App. 251, 556 S.E.2d 176 (2001). Compare to the favorable result in Bowen v. State, 235 Ga. App. 900, 510 S.E.2d 873 (1999).
Based on the Kachwalla decision, a defense attorney in any “less safe” DUI alcohol case should be able to argue to the jury that “less safe to drive” means “rendered incapable of driving safely.” Furthermore, the defense should request a jury instruction that “less safe to drive” means “rendered incapable of driving safely.” However, a trial judge may opt to not give the Kachwalla language in a DUI-alcohol case, despite the more descriptive language that would undoubtedly assist a jury. Drogan v. State, 272 Ga. App. 645, 613 S.E.2d 195 (2005). The Kachwallaopinion, if applied to all cases of "impaired" driving (alcohol or drugs), would bring Georgia more in line with other states in requiring some articulable standard for the jury to differentiate between an impaired driver and either a drinkingdriver or a driver who was "within the therapeutic" level for a prescribed drug.