Swindle: Three myths about driving under the influence

Published 1:09 pm Wednesday, July 3, 2019

Jason Swindle
Senior Partner Swindle Law Group P.C

There are many aspects of DUI law that are misunderstood. There are also myths that have developed over the years. Of these myths, three seem to be the most widespread in our community:

  • I am safe if I blew under 0.08   In most DUI prosecutions when only alcohol is involved, this is mostly true. However, if a person’s blood test or breath test (at the police station)  shows that a person’s blood alcohol content (BAC) is under 0.08, a person can still be prosecuted and convicted for DUI. Some jurisdictions consistently prosecute people with a lesser BAC if the state can show that the person was also less safe to drive under the circumstances.

Keep in mind that the following applies only to drivers 21 or over who have non-commercial licenses. O.C.G.A. 40-6-392 provides for certain inferences that allow prosecutors to move forward with cases involving a lower BAC.:

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For instance, if a person has an alcohol concentration in excess of 0.05 grams but less than 0.08 grams,  this may be considered by the jury, along with other evidence, in determining whether the person was under the influence of alcohol.

The most common scenario is when a motorist has a BAC under 0.08 and has legal and/or illegal drugs in their system.  This mixture can result in a DUI arrest and possible conviction. 

  • I cannot be arrested for DUI when taking my legal medication — Most controlled substances, like painkillers, come with a warning that says not to operate heavy machinery while taking the medication. A vehicle is a heavy machine. Thus, even if someone is taking their medication exactly as prescribed, if the medication affects them in a way that the prosecutor can prove they were less safe to drive, they can be convicted of DUI.

When drugs are involved, even with a legal prescription, the consequences of a DUI conviction are much more severe. If someone is convicted of DUI — less safe with only alcohol involved, he or she can get a limited “work permit” immediately if the conviction is their first within a five year period.

However, if drugs are identified in the motorist’s blood, he or she would not be eligible for a limited permit if convicted. The license would be suspended.

  • I can only be arrested for one DUI at a time — While this seems logical, if a motorist is arrested for DUI and has minor children in the vehicle, he or she can be charged with the underlying DUI and an additional DUI — child endangerment charge for each child in the vehicle.

So, if someone is driving their three children home from dinner after having two or three glasses of wine and is pulled over and arrested for DUI, that person will go to court facing four DUIs, the possibility of plenty of jail time, and losing custody of his or her children.

While these are the three most common myths, keep in mind that if a motorist causes a fatal vehicle accident, but is below 0.08, he or she may be charged with homicide by vehicle — first degree.  For each fatality, the maximum punishment is 15 years to serve in the state penitentiary.

It is common and reasonable to go to a restaurant and have a couple of glasses of wine or buying a bottle of wine for the table to drink with dinner.

However, even one glass of wine, depending on many factors such as gender, weight, the amount of food consumed, metabolism, and time between the last drink and cranking up the vehicle, can result in an arrest for DUI.

But, getting a ride home from a sober driver or calling a taxi eliminates the problem.

Let’s keep ourselves and more importantly others, safe on the roads.