DRIVING UNDER THE INFLUENCE OF DRUGS (O.C.G.A. § 40-6-291(a)(2)) 

O.C.G.A. § 40-6-391(a)(2) states:  

(a) A person shall not drive or be in actual physical control of any moving vehicle while: … (2) Under the influence of any drug to the extent that it is less safe for the person to drive. 

This statute, which is commonly referred to as the DUI Drugs – Less Safe law, makes it illegal to drive under the influence of prescribed or non-prescribed drugs. 

USE OF THE STATE-ADMINISTERED TEST BEYOND ESTABLISHING DUI  

Can you be prosecuted for possession of an illegal drug by consumption if the state-administered test reveals that you have consumed an illegal substance? 

NO.  This issue was squarely addressed by the Georgia Court of Appeals in State v. Burton, 230 Ga. App. 753, 498 S.E.2d 121 (1998).  The results of blood or urine testing of a driver who was tested for drugs or alcohol after being informed of his implied consent rights under OGCA § 40-5-67.1(b) can only be used as a basis for driving–related criminal charges. “Any other purpose would exceed the scope of the consent given.” State v. Frazier, 229 Ga.App. at 345, 494 S.E. 2d 36. 

Under our Georgia’s statutory scheme, the holder of a Georgia driver’s license who is reasonably believed to be driving under the influence must submit to blood or urine testing to determine whether he is under the influence. The driver does have a choice—he or she can refuse testing, a decision that will result in the automatic suspension of his or her Georgia driver’s license, or in the case of an out-of-state license holder, the suspension of his or her right to drive on Georgia highways, for a minimum period of one year. OGCA § 40-5-67.1(b)(2). And although the choice may not involve attractive alternatives, it is a choice that can only be free, voluntary, and unrestrained if the full consequences are known.  

The Georgia Court of Appeals has stated that “[c]ommon sense and reason dictate that a driver, who is informed that he is being tested ‘for the purpose of determining if you are under the influence of alcohol or drugs,’ id., and who is further informed that he will lose his driving privileges if he does not consent to be tested, will reasonably believe, unless informed otherwise, that he is being tested only to determine whether he has committed a driving-related offense. And common sense and reason also dictate that a driver who believes that he is guilty of the misdemeanor offense of driving under the influence may make a different choice from one who knows he may also be charged with a felony offense arising from violating the Georgia Controlled Substances Act.”