What is the Under 21 Georgia DUI Statute?
The Official Code of Georgia Section 40-6-391 (k)(1) defines an Under 21 DUI as follows:
“(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.” What this means is that under 21 drivers face two types of DUI charges: “per se” and “less safe. Per se charges are when an underage driver drives with a BAC of .02 or has a BAC of .02 within three hours of driving. Less safe charges are when an underage driver is deemed “less safe” to drive from having ingested any type of alcohol or drug.
Most observers, and especially those under 21 and their parents, remark that this is unfair. And it is. The Georgia legislature has taken the position that underage drivers have no business drinking at all, and accordingly have instituted what is basically a “zero tolerance” policy for underage drivers. To put this in perspective, a 0.02 breath or blood alcohol content is one beer or less. Further, the stated margin of error for the Intoxilyzer 5000 breath testing machine (the official state breath test) is +/- 0.02 according to the State’s training manual. This means that when a person under 21 blows a 0.02 on the Intoxilyzer 5000 breath testing machine, his/her actual blood alcohol level could be as low as 0.00 and as high as 0.04. And you say this hardly seems fair! As the oft quoted Professor Sentell from the prestigious University of Georgia School Law says, “Show me where it says fair on the outside of the Courthouse!”
It’s just the system. If you don’t like it, call your local State Legislator and give him a piece of your mind or run for the legislature yourself! Most underage drivers ask, “Should I blow?” The answer is no – never blow if you’ve been drinking. If you blow over 0.02 and under 0.08 you will lose your license for six months. If you blow over 0.08 you will lose your license for one year. If you refuse you will lose your license for one year. Any way you blow, you lose. However, state law presumes that you are sober if you blow from 0.00 to 0.05, and state law makes no presumption of sobriety if you blow from 0.05 to 0.079. This means that it is very difficult to successfully prosecute an under 21 less safe DUI at these BAC levels.
