Less Safe – DUI and Controlled Substances

Less Safe – DUI and Controlled Substances

Arrests for driving under the influence of prescription drugs such as Ambien, Lunesta, Sonata, Rozerem, Oxycotin are prosecuted the same as alcohol-related DUI arrests. DUI laws in Georgia apply to any impaired driving due to alcohol, marijuana, narcotics, and prescription drugs (even if used as prescribed).

DUI Per Se and DUI Less Safe

The State of Georgia can prosecute a person for a “full DUI" or under a charge of "DUI Less Safe". Hiring one of the best DUI lawyers in Cherokee County is essential if you want to fight for dismissed or reduced DUI charges. Because a DUI has a long-term effect on your future, if you have been arrested for DUI, you need to do the most you can to make it have minimal impact on your life. A DUI on your record (in our opinion) could even cause something like a future traffic stop to result in a traffic ticket instead of a warning citation. Protecting your driving record, keeping a clean background check, and avoiding the stigma of arrest should be top concerns.

What is DUI Per Se

A per se DUI applies to a person (driver) who, at the time of arrest, is confirmed to have a blood alcohol concentration (BAC) of 0.08 percent or higher. The BAC level to meet DUI standards is different for drivers under 21 years of age (.02%), and drivers of a commercial vehicle (.04%).

What is DUI Less Safe

Per Georgia law O.C.G.A. § 40-6-391(a) (1), a person shall not “drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.” This law basically means that if you are deemed to be too impaired to drive, from alcohol or a substance, you can be arrested.

The FindLaw website states, “Many prescription and over-the-counter medications will have an effect on your coordination, motor skills, and more – even when you take the prescribed dosage. “.1Some common drugs side effects that can impact your ability to drive include:

  • Dizziness
  • Drowsiness
  • Nausea
  • Blurred vision
  • Slowed movement
  • Fainting
  • Inability to focus or pay attention

Can You Get a DUI from CBD Products?

In Georgia, CBD products are legal for sale and use if the THC content is under .03 percent. If you are stopped for suspicion of impaired driving you can be arrested simply because the officer thinks you’re under the influence of marijuana. If you’re arrested your only practical defense tool is a negative blood test. However; using CBD products, even if you do not use marijuana, could show THC in your system, so you will be found guilty of some form of impaired driving. No, it’s not right, but it’s reality. To learn more, visit the 11Alive news website and learn about “The Drug Whisperer” arrests in Cobb County, Georgia.

Notable Indications of DUI

There are a number of behaviors, circumstances, and reasons a police officer can cite as their reason to affect a traffic stop. Any such reasons will be in the police report and may be used to strengthen the prosecution’s case. Among the many things that may lead to a traffic stop or suspicion of DUI Less Safe are:

  • Driving Abnormalities such as failure to maintain lane, running a red light, aggressive driving, speeding, failure to use turn signals, etc.
  • Items in Your Possession such as the smell of marijuana, the presence of drug paraphernalia, possession of marijuana, edibles, or synthetic pot.
  • Personal Behaviors such as slurred speech, inability to speak coherently, lack of motor control, etc.

DUI Penalties in Georgia

A DUI arrest will cause you to be formally photographed, finger-printed, and formally booked into jail. You almost certainly will have the opportunity to post bail and be released. The amount of your bail bond may be minimal or very high depending upon the circumstances of your arrest. If you have aggravating factors such as hit-and-run, evading, resisting arrest, assault on a police officer, or other charges it can complicate your situation. How your case is prosecuted depends on factors such as additional charges, whether your DUI is a felony or misdemeanor, and whether or not you have prior DUI arrests.

The legal advice website Nolo.com provides the following information, “The penalties for a DUI are dependent on the number of prior convictions the driver has that occurred within the last ten years. The court will order the offender to complete 12 months of probation less any time spent in jail. Probation can suspend part of the jail sentence, but the offender must serve at least:

  • 24 hours in jail for a first offense
  • 72 hours in jail for a second offense
  • 15 days in jail for a third offense
  • All DUI offenders must obtain an alcohol and drug evaluation and follow any recommended treatment. Second-time offenders must also complete the DUI alcohol or drug risk reduction program
  • A second DUI violation in five years will result in the driver having to surrender his or her license plates
  • A third DUI violation in five years will result in vehicle forfeiture

The 30 Day Warning for Georgia DUI Less Safe Charges

The Georgia 30 Day Warning requires specific action in order to prevent losing your driving privileges. If you have been arrested on the charge of DUI Less Safe, you or your lawyer must request an (Administrative License Suspension) ALS Hearing, (and pay a filing fee) within 30 days of your arrest date. If a formal hearing request is not filed your driver’s license is subject to suspension for up to one year.

The arresting officer is required to issue to the arrested person a DDS 1205 Form. This form serves as a temporary driver’s license and advises the arrested person of the impending suspension of their license and personal rights to contest the suspension.

DUI and Prescription Medicines

Yes, you can be arrested for being under the influence (impaired driving) for more than just alcohol. Simply put, being under the influence of any substance, legal or illegal are grounds for arrest and DUI prosecution in Georgia.

Common legally prescribed prescription drugs can be cause for a DUI arrest. We defend people accused of:

  • Driving while on Ambien
  • Driving while on Lunesta
  • Driving while on Sonata
  • Driving while on Rozerum
  • Driving while on Xanax
  • Driving while on Valium
  • Driving while on Hydrocodone
  • Driving while on Flexoril
  • Driving while on Vicodin
  • Driving while on Oxycontin
  • Driving while on Darvocet
  • Driving while on Percocet
  • Driving while on Percodan
  • Driving while on Fentanyl
  • Driving while on Meth

Georgia law assigns criminal liability for driving under the influence of controlled substances, This includes a wide range of sleeping aids, opiates, hallucinogens, muscle relaxers, pain pills, and other OTC, prescription, and illegal drugs.

Marijuana DUI Less Safe Arrest

Per Georgia law O.C.G.A. § 40-6-391(6), which addresses DUI Per Se, the presence of THC (an element of cannabis/marijuana) can be deemed to be a cause for driving under the influence. Specifically, Georgia deems it unlawful to drive when there exists “any amount of marijuana or a controlled substance as defined by Georgia law present in the driver’s blood or urine.” The bottom line is yes, using marijuana (whether inhaled or ingested) can get you arrested for DUI.

Georgia does not provide for legal recreational use of marijuana. If you are stopped for suspicion of DUI, and subsequently have a blood test that shows traces of THC, the DUI Less Safe charge will probably be filed against you. Unlike states which allow some legal use of marijuana, any trace of THC in your system can be a problem in Georgia.

Possession of a Controlled Substance

Possession of a Controlled Substance is a crime in Georgia. This charge generally applies to being found to be in possession of a prescription drug without it being in a pharmaceutical container with a label that identifies you as the person who is legally entitled to have the substance. This law applies even to persons who are carrying a single pill (not in the proper container) who have a labeled container in their car, home, office, etc.

Depending on the substance in your possession, the possession of a controlled substance in Georgia can be either a misdemeanor or a felony.

The Georgia Controlled Substance Schedule

The State of Georgia, in O.C.G.A. §§ 16-13-20 through 30, identifies five schedules (effectively categories) of controlled substances. If you are arrested for possession of a controlled substance, the charges will specify the “Schedule Class” of what you are accused of having in your possession. The Schedules are as follows:

  • Schedule I drugs (Heroin, LSD, Ecstasy, etc.) are deemed to be the most dangerous and lack medicinal value.
  • Schedule II drugs (codeine, cocaine, meth, morphine, etc.) are those that are restricted to medical purposes and require a prescription.
  • Schedule III (steroids, Ketamine, Suboxone, etc.) are substances that require a prescription and have varying potential for abuse.
  • Schedule IV (Xanax, Percocet, Valium, Darvocet, etc.) are substances with medical use, and a low risk for potential abuse or dependency.
  • Schedule V (stimulants, depressants, etc.) are substances requiring a prescription and have the minor potential for abuse.

The Unintentional DUI Is Still a Crime

Even if you’re simply “just taking my medicine” it is not an acceptable reason for driving under the influence. If you have to take medicine(s) that impair your ability to operate a motor vehicle you need to find an alternative way to travel.

The United States Department of Transportation offers these comments on their website. “It is a well-known fact that driving under the influence of alcohol is illegal, but not everyone realizes the dangers of driving after taking drugs — including prescription and over-the-counter medications. Many legally obtained and commonly used OTC and prescription drugs can affect a user’s ability to drive safely…If you are taking a prescription drug, or get a prescription for a new medicine or a higher dose of a current drug, do not drive until you know what effect it has on your judgment, coordination, and reaction time. Additionally, certain medications may not impair you on their own, but if taken with a second medication or with alcohol, they may cause impairment… It doesn’t matter what term you use: If a person is feeling a little high, buzzed, stoned, wasted, or drunk, he or she is impaired and should not get behind the wheel.”3

If you have been arrested for driving under the influence of drugs, call us to discuss how we can help you.


  • 1 FindLaw Team, “You Can Get a DUI on Legal Drugs”, October 2, 2018, Available from FindLaw
  • 2 Nolo Staff, “Georgia DUI Laws and Penalties”, October 10, 2011, Available from Nolo.com
  • 3 NHTSA Staff, “Dangers of Driving After Taking Prescription Drugs or Over-the-Counter Medicines”, September 25, 2019, Available from NHTSA Website
Jimmy Duncan
James Hobson is a marketing professional and author with 40 years of experience in sales, marketing, print and digital advertising. James is a frequent contributor to law firm and business blogs under the nom de plume Jimmy Duncan.