Two Beers, a Sedating Antihistamine, and a 0.058 Reading
It is 10:50 p.m. You are 24 years old, about 155 pounds, and you left a friend's apartment ninety minutes ago. Between 8:00 and 9:30 you drank two 12-ounce beers. At 7:00 you took a prescribed antihistamine whose label says may cause drowsiness and do not drive or operate machinery; your doctor said the same at the visit. One brake light is out. The officer who stops you says he watched you drift over the fog line twice, and when he reaches the window he smells alcohol and notices bloodshot, watery eyes and slowed speech. You tell him honestly about the beers and the medication. He asks you to step out for field sobriety tests, then says you are under arrest for DUI and reads the implied consent notice.
1. The breath test at the station reads 0.058. Can you still be convicted of DUI in Georgia? Explain.
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Yes. Georgia has two routes to a DUI: per se, where the alcohol concentration is 0.08 or more, and less safe, where the State proves the person's ability to drive safely was impaired to the slightest extent by alcohol, drugs, or a combination. A 0.058 is under the per se threshold but is not a safe harbor. Here the State has the fog-line drifts, the odor, the bloodshot watery eyes, the slowed speech, your own admission to beer plus a sedating medication, and the label warning plus the doctor's instruction - a combination that is precisely the fact pattern less-safe DUI is built on. A prescription does not immunize you; a lawful medication that impairs driving supports a DUI charge. Expect the State to argue the alcohol and antihistamine multiplied each other's effects. Expect also an ignition interlock condition and license consequences if convicted.
2. You want to refuse both the field sobriety tests and the breath test. Are those two refusals treated the same?
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No - they carry very different consequences. The field sobriety tests are voluntary and are not covered by implied consent, so declining them does not trigger a license suspension by itself. However, the officer's observations of your driving, eyes, speech, odor, and statements remain evidence, and the arrest can rest entirely on those. The post-arrest breath or blood test is different: Georgia's implied consent law attaches a license sanction to refusal. A first refusal typically means a twelve-month suspension of driving privileges, and the refusal can be used against you at trial. You generally have thirty days to request an administrative hearing to challenge that suspension, and missing the deadline forfeits the challenge. So the practical decision is not about guilt or innocence - it is about which set of consequences you are prepared to litigate, and that decision should be made with a lawyer's advice as soon as possible.
3. The officer says the broken brake light is why he stopped you. Was the stop valid, and what should you do in the next thirty days?
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An equipment violation is a legitimate basis for a traffic stop, so the stop itself is valid even if it feels minor. Everything after that - the odor, the eyes, the admissions, the driving behavior - builds probable cause for the DUI arrest. Arguing that a brake light should not matter is not a defense; the only realistic challenges concern whether the officer's observations and the testing were done properly. In the next thirty days, three things matter: request the administrative license hearing within the thirty-day window or lose the chance; retain counsel rather than negotiating on your own; and write down the timeline - what you drank, when, what medication you took, what you ate, and how much you slept - while it is fresh, because that factual record is what your lawyer will work from.