The Elements of Driving under the influence of drugs—O.C.G.A. § 40-6-391(a)(2)—Misdemeanor—Elements
While any evidence of driving with a contraband (i.e., illegal for all purposes) substance in a driver's system constitutes driving under the influence of a drug, O.C.G.A. § 40-6-391(a)(2) requires proof beyond a reasonable doubt that the defendant is less safe because of the quantity or concentration of the drug in his system at the time of driving.
The statute does not distinguish between prescribed and non-prescribed drugs. Indeed, many types of over-the-counter drugs can impair a person's motor skills and lead to a possible DUI-drugs conviction. Defense counsel must tailor the defense to the TYPE of substance and call experts to help refute the state's case.
Additionally, a new advanced level police-training course called the "D.E.C." program (see § 6:21, infra) is being utilized to add "Drug Recognition Experts" to most police departments. Eventually, this may lead to a much higher incidence of DUI "drug" arrests, assuming that a sufficient number of officers receive and use the training. As of 2007, fewer than 3% of all patrol officers in Georgia possess such advance training.
The Georgia Supreme Court has upheld a first-degree vehicular homicide "reckless driving" charge based upon evidence of "metabolites" of marijuana in the defendant's system. Under both federal law and Georgia law, marijuana is a "contraband" substance. Hence, any trace of marijuana in the defendant's system, even if insufficient evidence of impairment existed, is enough to support a DUI-drugs "predicate offense" for the felony vehicular homicide offense. This is regardless of whether the defendant consumed the marijuana legally or illegally. Ayers v. State, 272 Ga. 733, 534 S.E.2d 76 (2000). Also see Keef v. State, 220 Ga. App. 134, 469 S.E.2d 318 (1996), a dismal appellate case often cited by the State. Defense counsel's task is to use every available "tool," motion, and tactic to either totally exclude any blood test indicating the contraband substance, or to bring in expert testimony to cast doubt on the reliability of the testing methodology, equipment qualifications of the GBI lab personnel, or in the identity of the blood or urine sample being used as your client's forensic sample. Contact a Paulding County criminal defense lawyer today.