The 20-Year-Old, Two Beers, and a Refused Breath Test
At 11:45 p.m. on a Friday, a 20-year-old driver is stopped on a city street for a broken taillight. The driver is 5 feet 2 inches tall and weighs 130 pounds. Over the previous two hours, at a friend's apartment, the driver had two 12-ounce beers and also took a prescribed 25 mg dose of diphenhydramine about an hour before driving. The driver's speech is slurred, the eyes are bloodshot, and the driver fails the horizontal gaze nystagmus test. The officer smells alcohol and asks the driver to submit to a state-administered breath test. The driver says, "I only had two beers, I'm fine," and refuses. The driver has a clean record and a Georgia Class D license.
1. Can the driver be charged with DUI in Georgia even if the breath test is never taken and the BAC might be below 0.08? Explain.
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Yes. Georgia recognizes more than one theory of DUI. One is DUI per se, which requires a chemical test result at or above the legal limit. The other is DUI less safe, which asks whether the driver's ability to drive safely was impaired by alcohol, drugs, or a combination. The officer can build a less-safe case from the slurred speech, bloodshot eyes, failed field sobriety test, admission to drinking, and the sedating antihistamine. Georgia law also covers impairment by prescription medication, so the diphenhydramine is relevant even though it was legally prescribed. The absence of a breath result does not prevent a charge; it only removes one piece of evidence.
2. What are the consequences of refusing the breath test under Georgia's implied consent law, and does refusal prevent a DUI charge?
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Refusal does not prevent a DUI charge. Georgia's implied consent law says that by driving on Georgia roads, a driver has already consented to a state-administered chemical test when lawfully arrested for DUI. Refusing the test triggers an administrative license suspension separate from the criminal case; for a first refusal, the suspension is typically one year, though limited driving may be possible later with an ignition interlock. The refusal can also be used as evidence in the DUI case. The officer must read the implied consent notice, and the driver's refusal is recorded. The prosecutor can still proceed on the less-safe theory using the officer's observations and the driver's statements.
3. How does the driver's age change the analysis under Georgia law?
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Because the driver is under 21, Georgia's zero-tolerance law applies. A BAC of 0.02 or more is DUI per se for a driver under 21, a much lower threshold than 0.08. Two 12-ounce beers in two hours for a 130-pound person could put the driver near or above 0.02 depending on timing, absorption, and body composition, so the chemical test result matters. Even if the result is below 0.02, the less-safe theory remains available because of the observed impairment and the medication. The driver also faces the separate under-21 administrative consequences, which can include suspension, community service, and DUI school.