You certainly may have solid factual and legal arguments to fight the DUI charge. But to say that you weren’t “drunk” is not one of them. In the Georgia DUI statute, § 40-6-391, the word “drunk” never appears. Obviously, drunk is a highly subjective term. The law, instead, uses the phrase “less safe,” which, while also subjective, is much easier to demonstrate to a judge or jury. In your case, your breathalyzer test of .125 is higher than the per se Georgia limit of .08. So that is a strong piece of evidence that the prosecution will use against you. The prosecution will also scrutinize your performance on the field sobriety tests. They will look for “clues” for intoxication on those tests. Again, a DUI prosecutor does not have to prove that you were drunk. They only need to prove that you were a less safe drive.
Unfortunately, you can be convicted of DUI for just having a breathalyzer test result that exceeds .08. O.C.G.A. § 40-6-391 (a) (5) is a “per se” DUI statute and is sometimes referred to as driving “UBAL, or “driving with an unlawful blood alcohol level.” Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995). It does not matter that you believe you were not drunk. Nor does it matter, under this statute, that you may have done extremely well on the field sobriety tests. You can be convicted of DUI simply because of your breathalyzer test result.
We are very familiar with echolalia, the repetition of words, and how that can effect a DUI charge. We have written about autism and DUI recently, in fact. Sometimes people with autism and other neurological disorders are seen as being under the influence of alcohol or drugs because of their actions and speech. This can be rebutted by a DUI lawyer. The lawyer can, among other things, show a prosecutor or a jury a diagnosis of autism or have a doctor testify as to the symptoms. We need some more information before rendering an opinion as to how best to defend this DUI. Questions we have include: Did she take the field sobriety tests? How did she look on those tests? Did she take a blood, breath or urine test, and what were the results?