2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 6 - Uniform Rules of the Road
Article 15 - Serious Traffic Offenses
§ 40-6-391. Driving Under the Influence of Alcohol, Drugs, or Other Intoxicating Substances; Penalties; Publication of Notice of Conviction for Persons Convicted for Second Time; Endangering a Child

1. A person shall not drive or be in actual physical control of any moving vehicle while:
   1. Under the influence of alcohol to the extent that it is less safe for the person to drive;
   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;
   5. The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or
   6. Subject to the provisions of subsection (b) of this Code section, 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.
2. 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.
3. Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor, upon a third conviction thereof, be guilty of a high and aggravated misdemeanor, and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:
   1. First conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous ten years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
      1. A fine of not less than $300.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
      2. A period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender's alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph;
      3. Not fewer than 40 hours of community service, except that for a conviction for violation of subsection (k) of this Code section where the person's alcohol concentration at the time of the offense was less than 0.08 grams, the period of community service shall be not fewer than 20 hours;
      4. Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; provided, however, that if the defendant is incarcerated and such program cannot be completed within 120 days, it shall be completed within 90 days of his or her release from custody. The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;
      5. A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; provided, however, that in the court's discretion such evaluation may be waived; and
      6. If the person is sentenced to a period of imprisonment for fewer than 12 months, a period of probation of 12 months less any days during which the person is actually incarcerated;
   2. For the second conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
      1. A fine of not less than $600.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
      2. A period of imprisonment of not fewer than 90 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 72 hours of actual incarceration;
      3. Not fewer than 30 days of community service;
      4. Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; provided, however, that if the defendant is incarcerated and such program cannot be completed within 120 days, it shall be completed within 90 days of his or her release from custody. The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;
      5. A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and
      6. A period of probation of 12 months less any days during which the person is actually incarcerated;
   3. For the third conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
      1. A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
      2. A mandatory period of imprisonment of not fewer than 120 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 15 days of actual incarceration;
      3. Not fewer than 30 days of community service;
      4. Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; provided, however, that if the defendant is incarcerated and such program cannot be completed within 120 days, it shall be completed within 90 days of his or her release from custody. The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;
      5. A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and
      6. A period of probation of 12 months less any days during which the person is actually incarcerated;
   4. For the fourth or subsequent conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:
      1. A fine of not less than $1,000.00 and not more than $5,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;
      2. A period of imprisonment of not less than one year and not more than five years; provided, however, that the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose;
      3. Not fewer than 60 days of community service; provided, however, that if a defendant is sentenced to serve three years of actual imprisonment, the judge may suspend the community service;
      4. Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; provided, however, that if the defendant is incarcerated and such program cannot be completed within 120 days, it shall be completed within 90 days of his or her release from custody. The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;
      5. A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and
      6. A period of probation of five years less any days during which the person is actually imprisoned;

         provided, however, that if the ten-year period of time as measured in this paragraph commenced prior to July 1, 2008, then such fourth or subsequent conviction shall be a misdemeanor of a high and aggravated nature and punished as provided in paragraph (3) of this subsection;

   5. If a person has been convicted of violating subsection (k) of this Code section premised on a refusal to submit to required testing or where such person's alcohol concentration at the time of the offense was 0.08 grams or more, and such person is subsequently convicted of violating subsection (a) of this Code section, such person shall be punished by applying the applicable level or grade of conviction specified in this subsection such that the previous conviction of violating subsection (k) of this Code section shall be considered a previous conviction of violating subsection (a) of this Code section;
   6. For the purpose of imposing a sentence under this subsection, a plea of nolo contendere based on a violation of this Code section shall constitute a conviction; and
   7. For purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of this subsection, only those offenses for which a conviction is obtained or a plea of nolo contendere is accepted on or after July 1, 2008, shall be considered; provided, however, that nothing in this subsection shall be construed as limiting or modifying in any way administrative proceedings or sentence enhancement provisions under Georgia law, including, but not limited to, provisions relating to punishment of recidivist offenders pursuant to Title 17.
4. 1. Notwithstanding the limits set forth in any municipal charter, any municipal court of any municipality shall be authorized to impose the misdemeanor or high and aggravated misdemeanor punishments provided for in this Code section upon a conviction of violating this Code section or upon a conviction of violating any ordinance adopting the provisions of this Code section.
   2. Notwithstanding any provision of this Code section to the contrary, any court authorized to hear misdemeanor or high and aggravated misdemeanor cases involving violations of this Code section shall be authorized to exercise the power to probate, suspend, or stay any sentence imposed. Such power shall, however, be limited to the conditions and limitations imposed by subsection (c) of this Code section.
5. The foregoing limitations on punishment also shall apply when a defendant has been convicted of violating, by a single transaction, more than one of the four provisions of subsection (a) of this Code section.
6. The provisions of Code Section 17-10-3, relating to general punishment for misdemeanors including traffic offenses, and the provisions of Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, shall not apply to any person convicted of violating any provision of this Code section.
7. 1. If the payment of the fine required under subsection (c) of this Code section will impose an economic hardship on the defendant, the judge, at his or her sole discretion, may order the defendant to pay such fine in installments and such order may be enforced through a contempt proceeding or a revocation of any probation otherwise authorized by this Code section.
   2. In the sole discretion of the judge, he or she may suspend up to one-half of the fine imposed under subsection (c) of this Code section conditioned upon the defendant's undergoing treatment in a substance abuse treatment program as defined in Code Section 40-5-1.
8. For purposes of determining under this chapter prior convictions of or pleas of nolo contendere to violating this Code section, in addition to the offense prohibited by this Code section, a conviction of or plea of nolo contendere to any of the following offenses shall be deemed to be a violation of this Code section:
   1. Any federal law substantially conforming to or parallel with the offense covered under this Code section;
   2. Any local ordinance adopted pursuant to Article 14 of this chapter, which ordinance adopts the provisions of this Code section; or
   3. Any previously or currently existing law of this or any other state, which law was or is substantially conforming to or parallel with this Code section.
9. A person shall not drive or be in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person's blood, breath, or urine. Every person convicted of violating this subsection shall be guilty of a misdemeanor and, in addition to any disqualification resulting under Article 7 of Chapter 5 of this title, the "Uniform Commercial Driver's License Act," shall be fined as provided in subsection (c) of this Code section.
10. 1. The clerk of the court in which a person is convicted a second or subsequent time under subsection (c) of this Code section within five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted, shall cause to be published a notice of conviction for each such person convicted. Such notices of conviction shall be published in the manner of legal notices in the legal organ of the county in which such person resides or, in the case of nonresidents, in the legal organ of the county in which the person was convicted. Such notice of conviction shall be one column wide by two inches long and shall contain the photograph taken by the arresting law enforcement agency at the time of arrest, the name of the convicted person, the city, county, and zip code of the convicted person's residential address, and the date, time, place of arrest, and disposition of the case and shall be published once in the legal organ of the appropriate county in the second week following such conviction or as soon thereafter as publication may be made.
    2. The convicted person for which a notice of conviction is published pursuant to this subsection shall be assessed $25.00 for the cost of publication of such notice and such assessment shall be imposed at the time of conviction in addition to any other fine imposed pursuant to this Code section.
    3. The clerk of the court, the publisher of any legal organ which publishes a notice of conviction, and any other person involved in the publication of an erroneous notice of conviction shall be immune from civil or criminal liability for such erroneous publication, provided such publication was made in good faith.
11. 1. A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person's alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.
    2. Every person convicted of violating this subsection shall be guilty of a misdemeanor for the first and second convictions and upon a third or subsequent conviction thereof be guilty of a high and aggravated misdemeanor and shall be punished and fined as provided in subsection (c) of this Code section, provided that any term of imprisonment served shall be subject to the provisions of Code Section 17-10-3.1, and any period of community service imposed on such person shall be required to be completed within 60 days of the date of sentencing.
    3. No plea of nolo contendere shall be accepted for any person under the age of 21 charged with a violation of this Code section.
12. A person who violates this Code section while transporting in a motor vehicle a child under the age of 14 years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or drugs. The offense of endangering a child by driving under the influence of alcohol or drugs shall not be merged with the offense of driving under the influence of alcohol or drugs for the purposes of prosecution and sentencing. An offender who is convicted of a violation of this subsection shall be punished in accordance with the provisions of subsection (d) of Code Section 16-12-1.

(Ga. L. 1953, Nov.-Dec. Sess., p. 556, § 47; Ga. L. 1968, p. 448, § 1; Code 1933, § 68A-902, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1983, p. 1000, § 12; Ga. L. 1984, p. 22, § 40; Ga. L. 1985, p. 149, § 40; Ga. L. 1985, p. 758, § 17; Ga. L. 1987, p. 3, § 40; Ga. L. 1987, p. 904, § 1; Ga. L. 1988, p. 1893, § 2; Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, § 5; Ga. L. 1991, p. 1886, §§ 6-8; Ga. L. 1992, p. 2556, § 2; Ga. L. 1994, p. 1600, § 8; Ga. L. 1996, p. 1413, § 1; Ga. L. 1997, p. 760, § 23; Ga. L. 1999, p. 293, §§ 1, 2; Ga. L. 1999, p. 391, §§ 7, 8; Ga. L. 2001, p. 208, § 1-5; Ga. L. 2005, p. 334, § 18-15.1/HB 501; Ga. L. 2007, p. 47, § 40/SB 103; Ga. L. 2008, p. 498, §§ 2, 3, 4/HB 336; Ga. L. 2009, p. 8, § 40/SB 46; Ga. L. 2010, p. 422, § 1/HB 898; Ga. L. 2013, p. 294, § 4-48/HB 242; Ga. L. 2014, p. 710, §§ 1-19, 4-1/SB 298.)

- Confinement of juvenile violators of subsection (k) of this Code section, § 15-11-35.

Compensation of victims of violation of this Code section, § 15-21-110 et seq.

Intoxication as relieving person from criminal responsibility for actions, § 16-3-4.

Public drunkenness, § 16-11-41.

Seizure and disposition of driver's license of persons charged with driving under influence of alcohol or drugs, § 40-5-67.

Notices of implied consent to chemical tests and rights of motorists, § 40-5-67.1.

Ignition interlock device limited driving permits, § 40-5-64.1.

Ignition interlock devices, § 42-8-110 et seq.

Navigating vessels while intoxicated, § 52-7-12.

Suspension, revocation, and cancellation forms based on violations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Driver Services, Driver License Services, § 375-3-3-.06.

- Pursuant to Code Section 28-9-5, in 1985, "this Code section" was substituted for "Code Section 40-6-391" in paragraph (c)(1) and in the first sentence of paragraph (d)(2).

Pursuant to Code Section 28-9-5, in 1987, "and" was deleted at the end of subparagraph (c)(2)(B) and "Code section" was substituted for "Code" in the first sentence of paragraph (d)(2).

Pursuant to Code Section 28-9-5, in 1990, "section" was inserted following "Code" the first time that word appears in the first sentence of paragraph (d)(2) due to its inadvertent omission from Ga. L. 1990, p. 2048, § 5.

Pursuant to Code Section 28-9-5, in 1991, "this chapter" was substituted for "Chapter 6 of Title 40" in paragraph (h)(2).

Pursuant to Code Section 28-9-5, in 1999, subparagraphs (c)(1)(D), (c)(2)(D), and (c)(3)(D) as enacted by Ga. L. 1999, p. 391, § 7, were redesignated as (c)(1)(E), (c)(2)(F), and (c)(3)(F), respectively, and punctuation was revised accordingly.

- Ga. L. 1994, p. 1600, § 11, not codified by the General Assembly, provides that the provisions of the Act shall apply only to cases arising out of arrests occurring on or after January 1, 1995, except that the provisions amending subsection (a) of Code Section 40-6-391.1, restricting the acceptance of a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the provisions amending subsection (c) of Code Section 40-6-391, changing the criminal penalties for violations of the section, shall become effective July 1, 1994, and except that the provisions amending subsection (g) of Code Section 40-5-67.1, relating to the time for requesting a hearing on an administrative suspension, the stay of a suspension pending such hearing, and the early termination of an administrative suspension under certain conditions shall apply to cases pending on July 1, 1994.

Ga. L. 1996, p. 1413, § 2, not codified by the General Assembly, provides: "This Act shall become effective July 1, 1996, and shall apply with respect to offenses committed on or after that effective date. This Act shall not apply to or affect offenses committed prior to that effective date."

Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Teen-age and Adult Driver Responsibility Act.'"

Ga. L. 1997, p. 760, § 27, provides that the amendment made by the Act to this Code section shall apply to offenses committed on or after July 1, 1997, and shall not apply to offenses committed prior to that date.

Ga. L. 1999, p. 391, § 2, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'Heidi's Law.'"

Ga. L. 2008, p. 498, § 5/HB 336, not codified by the General Assembly, provides, in part, that the amendment to this Code section, by that Act, shall be applied to offenses occurring on or after July 1, 2008; provided, however, that for purposes of determining the number of prior convictions or pleas of nolo contendere pursuant to the felony provisions of paragraph (4) of subsection (c) of Code Section 40-6-391, only those offenses for which a conviction or a plea of nolo contendere is obtained on or after July 1, 2008, shall be considered.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

- For article, "Challenges to Humanitarian Legal Approaches for Eliminating the Hazards of Drunk Alcoholic Drivers," see 4 Ga. L. Rev. 251 (1970). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997). For article, "The Harper Standard and the Alcosensor: The Road Not Traveled," see 6 Ga. St. B.J. 8 (2000). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005). For article, "No Second Chances: Immigration Consequences of Criminal Charges," see 13 Ga. St. B.J. 26 (2007). For article, "The Experiential Future of the Law," see 60 Emory L.J. 585 (2011). For note discussing operation of Ga. L. 1968, p. 448 (see now O.C.G.A. § 40-6-392) and constitutional issues raised by the concept, see 20 Mercer L. Rev. 489 (1969). For note on the 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 129 (1992). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992). For note, "Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-English-Speaking Drivers," see 54 Mercer L. Rev. 1253 (2003). For comment on Harper v. State, 91 Ga. App. 456, 86 S.E.2d 7 (1955), holding that one is under the influence of alcohol when it appears that it is less safe for him to operate a motor vehicle than it would be if he were not so affected, see 18 Ga. B.J. 190 (1955). For comment on Flournoy v. State, 106 Ga. App. 756, 128 S.E.2d 528 (1962), see 14 Mercer L. Rev. 442 (1963). For comment, "Death of the DUI: Should Autonomous Vehicles Be Considered Synonymous to Designated Drivers Under Georgia Law?," see 70 Mercer L. Rev. 1113 (2019).

ANALYSIS

• General Consideration
• Notice
• Testing
• Evidence
• Instructions to Jury
• Endangering a Child
• Sentence and Punishment

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1953, Nov.-Dec. Sess., p. 556, are included in the annotations for this Code section.

- Provisions of O.C.G.A. § 40-6-391 which merely provide new trial procedures may be applied to all cases tried on or after September 1, 1983, regardless of when the violations occurred. All other provisions can be applied only to defendants whose alleged illegal conduct occurred on or after September 1, 1983. 1983 Op. Att'y Gen. No. U83-52.

- Motorist is subject to charges of violating Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-391) wherever in Georgia the motorist happens to be operating a motor vehicle while the motorist is intoxicated, including on a federal military installation, provided, of course, that federal law does not preempt the operation of state and local laws. 1976 Op. Att'y Gen. No. 76-13.

- Defendants who receive active sentences in accordance with subsection (c) of O.C.G.A. § 40-6-391 are constitutionally entitled to counsel, but may voluntarily waive this right. 1984 Op. Att'y Gen. No. U84-2.

- Although not authorized under Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-391) or former Code 1933, § 27-2506 (see now O.C.G.A. § 17-10-3) to suspend or cancel licenses of those convicted of driving under the influence of drugs or intoxicants, a judge may still do so by virtue of authority granted in former Code 1933, § 92A-9908; furthermore, a judge may sentence a defendant to either, but not both, a suspended or probated sentence, which may be properly conditioned upon payment of a fine. 1974 Op. Att'y Gen. No. U74-78 (see O.C.G.A. § 40-5-54).

- That portion of subsection (c) of Ga. L. 1974, p. 633, § 1 (see now O.C.G.A. § 40-6-391) which used the word "shall," authorizing the imposition of a 90-day penalty, was mandatory and cannot be construed to mean that the court is vested with discretion in imposing the minimum 90-day sentence; however, former Code 1933, § 27-2506 (see now O.C.G.A. § 17-10-3), relating to punishment of misdemeanors, permitted a judge to impose, in addition to or instead of any other penalty provided for the punishment of a misdemeanor involving a traffic offense, probation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge; therefore, a judge imposing sentence pursuant to subsection (c) may probate either the fine or the sentence, as well as both the fine and the sentence. 1974 Op. Att'y Gen. No. U74-102 (rendered prior to 1983 amendment).

- Shortest period of imprisonment which must actually be served in jail pursuant to subsection (c) of O.C.G.A. § 40-6-391 is that period of time which may not be suspended, stayed, or probated according to the statute. 1984 Op. Att'y Gen. No. U84-2.

- Municipal and recorder's courts are without authority to place individuals on state supervised probation for violations of local ordinances adopting the provisions of O.C.G.A. § 40-6-391, although probate courts hearing cases brought pursuant to the state statute do have the power to probate as a limited exception to the prohibition of O.C.G.A. § 42-8-34. 1983 Op. Att'y Gen. No. 83-73.

- Defendant is obligated to pay the total amount of the defendant's fine imposed pursuant to subsection (c) of O.C.G.A. § 40-6-391, regardless of the length of the sentence of imprisonment imposed contemporaneously or the portion of that sentence of imprisonment which is actually served in jail. 1984 Op. Att'y Gen. No. U84-2.

Person who removes intoxicated driver from the scene before the officers can investigate can be charged as an accessory after the fact and as a principal in the crime of driving under the influence of intoxicating liquor. 1963-65 Op. Att'y Gen. p. 473.

- Department of Public Safety is within the department's authority to revoke driver's license for out-of-state convictions; provided, however, such convictions are for offenses which would be grounds for revocation if committed in Georgia. 1963-65 Op. Att'y Gen. p. 524.

For legal status and effect of alcolyzer test, see 1972 Op. Att'y Gen. No. 72-46.

- Convictions for violations of O.C.G.A. §§ 40-6-391(2), (4), (6), and40-5-151 should be reported by the superior court clerk to Department of Driver Services (DDS) and violations of O.C.G.A. §§ 16-13-30(b),16-13-31, and16-13-31.1 should be reported to DDS only upon the clerk's determination that the conviction meets the mandate of O.C.G.A. § 40-5-54(a)(2). 2017 Op. Att'y Gen. No. 17-4.

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 335, 337, 362.

Defense to Charge of Driving Under the Influence of Alcohol, 17 POF2d 1.

Punitive Damages in Motor Vehicle Litigation - Intoxicated Driver, 1 POF3d 1.

Negligent Failure to Detain Intoxicated Motorist, 1 POF3d 545.

Liability of Social Host for Negligent Driving of Intoxicated Adult Guest, 3 POF3d 697.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Breath Alcohol Testing, 4 POF3d 229.

Unreliability of the Horizontal Gaze Nystagmus Test, 4 POF3d 439.

Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 POF3d 459.

Punitive Damages in Motor Vehicle Litigation - Intoxicated Driver, 18 POF3d 1.

Proof that Driver Was "Operating" Motor Vehicle While Intoxicated, 61 POF3d 115.

The Impaired Driver - Ascertaining Physical Condition, 4 Am. Jur. Trials 615.

Defense on Charge of Driving While Intoxicated, 19 Am. Jur. Trials 123.

Failure to Protect Public From an Intoxicated Driver, 34 Am. Jur. Trials 499.

Driving Under the Influence: Tactical Considerations in Sobriety Checkpoint Cases, 59 Am. Jur. Trials 79.

Trial Defenses to a Breath Test Score, 70 Am. Jur. Trials 1.

Litigating a Driving While Intoxicated Case, 76 Am. Jur. Trials 213.

- 61A C.J.S., Motor Vehicles, § 1574 et seq.

- Driving automobile while intoxicated as a substantive criminal offense, 42 A.L.R. 1498; 49 A.L.R. 1392; 68 A.L.R. 1356; 142 A.L.R. 555.

Constitutionality and effect of statute relating to civil liability of person driving automobile while under influence of liquor, 56 A.L.R. 327.

What conduct in driving an automobile amounts to wantonness, willfulness, or the like, precluding defense of contributory negligence, 119 A.L.R. 654.

What is a "motor vehicle" within statutes making it an offense to drive while intoxicated, 66 A.L.R.2d 1146.

Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373.

Automobiles: driving under the influence, or when addicted to the use, of drugs as criminal offense, 17 A.L.R.3d 815.

Applicability, to operation of motor vehicle on private property, of legislation making drunken driving a criminal offense, 29 A.L.R.3d 938.

Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.

What amounts to violation of drunken-driving statute in officer's "presence" or "view" so as to permit warrantless arrest, 74 A.L.R.3d 1138.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance, 93 A.L.R.3d 7.

Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 A.L.R.3d 572.

Reckless driving as lesser included offense of driving while intoxicated or similar charge, 10 A.L.R.4th 1252.

Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant's objections or refusal to submit to test, 14 A.L.R.4th 690.

Failure to restrain drunk driver as ground of liability of state or local government unit or officer, 48 A.L.R.4th 320.

Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 A.L.R.4th 149.

Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.

Horizontal gaze nystagmus test: use in impaired driving prosecution, 60 A.L.R.4th 1129.

Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.

Passenger's liability to vehicular accident victim for harm caused by intoxicated motor vehicle driver, 64 A.L.R.4th 272.

Driving while intoxicated: "choice of evils" defense that driving was necessary to protect life or property, 64 A.L.R.4th 298.

Cough medicine as "intoxicating liquor" under DUI statute, 65 A.L.R.4th 1238.

Horseback riding or operation of horse-drawn vehicle as within drunk driving statute, 71 A.L.R.4th 1129.

Operation of bicycle as within drunk driving statute, 73 A.L.R.4th 1139.

Operation of mopeds and motorized recreational two-, three-, and four-wheeled vehicles as within scope of driving while intoxicated statutes, 32 A.L.R.5th 659.

Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication - post-Sitz cases, 74 A.L.R.5th 319.

Validity, construction, and application of statute permitting forfeiture of motor vehicle for operating while intoxicated, 89 A.L.R.5th 539.

Clause in life, accident, or health policy excluding or limiting liability in case of insured's use of intoxicants or narcotics, 100 A.L.R.5th 617.

Validity, construction, and operation of school "zero tolerance" policies towards drugs, alcohol, or violence, 117 A.L.R.5th 459.

Vertical gaze nystagmus test: Use in impaired driving prosecution, 117 A.L.R.5th 491.

Claim of diabetic reaction or hypoglycemia as defense in prosecution for driving while under influence of alcohol or drugs, 17 A.L.R.6th 757.

Validity, construction, and application of state "zero tolerance" laws relating to underage drinking and driving, 34 A.L.R.6th 623.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute, regulation, or ordinance - being in physical control or actual physical control - general principles, 92 A.L.R.6th 295.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute, regulation, or ordinance - being in physical control or actual physical control - motorist sleeping or unconscious, 93 A.L.R.6th 207.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute, regulation, or ordinance - being in physical control or actual physical control - passengers, 94 A.L.R.6th 191.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance - being in actual physical control - status of vehicle, 95 A.L.R.6th 1.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance - being in actual physical control - factors and circumstances establishing actual physical control: miscellaneous situations, 96 A.L.R.6th 355.

Assimilation, under assimilative crimes act (18 U.S.C.A. § 13), of state statutes relating to driving while intoxicated or under influence of alcohol, 175 A.L.R. Fed. 293.

Driving While Intoxicated: Duty of Law Enforcement Officer to Advise Suspect of Their Rights Under Implied Consent Law, Including Offers of Test Alternatives, 51 A.L.R.7th 2.