Can I still be charged with DUI if my results are below 0.08?
Shockingly the answer is: Yes.
Most people do not know that even if their blood/breath results are below .08 they can still be charged (and convicted) of DUI in Georgia. That means, even if your breathalyzer results were below .08 (or your blood test results are below .08) you can still be charged (and convicted) of DUI.
The reason this is the case is found in OCGA § 40-6-392(b)(1) and (2).
According to OCGA § 40-6-392(b)(1):
If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391;
But, under OCGA § 40-6-392(b)(1):
- If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391.
In short, if you're below .05, the jury is told to “infer” you are not guilty of less safe DUI. But, if you're between .05 and .079, they are free to find you guilty of less safe DUI even though you're under the legal limit of .08.
If this situation has happened to you, it is critical to give us a call at 770-249-4405 for further instructions.