Sentencing Exposure for Marijuana DUI and Possession Charges in Georgia

Attorney Answer

No honest lawyer will tell you what sentence you will get, but I can tell you what the statute actually allows — and the single most useful thing to know is that the mandatory 24 hours in jail written into Georgia's DUI law does not apply to a marijuana DUI.

The governing law. Georgia's DUI statute reaches drugs, not just alcohol. O.C.G.A. § 40-6-391(a)(2) prohibits driving under the influence of any drug to the extent it is less safe to drive; (a)(4) covers the combined influence of two or more listed substances; and (a)(6) makes it an offence to drive with any amount of marijuana or a controlled substance present in the blood or urine. Those are three different theories, and which one is charged changes what the State has to prove — under (a)(6) it does not have to prove you drove badly at all.

The first-offence penalty grid is at O.C.G.A. § 40-6-391(c)(1): a fine of $300 to $1,000; 10 days to 12 months of confinement, which the judge may suspend, with a 24-hour minimum only where the alcohol concentration was 0.08 or more; at least 40 hours of community service; completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days; a clinical evaluation with treatment if recommended; and 12 months of probation less time served. Because a marijuana DUI has no 0.08 alcohol concentration, that 24-hour floor is not triggered.

On the possession counts, O.C.G.A. § 16-13-2(b) provides that "any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor," punishable by imprisonment up to 12 months, a fine up to $1,000, or both, or public works not exceeding 12 months.

What actually drives your exposure is something you have not told me and may not know: whether your two DUI counts came out of one traffic stop or two, and whether the second one is charged as a second offence. Two counts from a single incident usually merge or are resolved together; two separate incidents, with the second occurring after the first, is a materially different sentencing picture, and § 40-6-391(c)(1) is the first-conviction grid only.

What you can do

1. Get the accusation or citation for every count and read the code subsection printed on each one. Write down whether the counts share a date. 2. Get the lab report. If a DUI count is charged under (a)(6), the case turns on the presence of a metabolite in your blood or urine, and the report and its chain of custody are the case. 3. Ask your lawyer whether any of the counts merge, and whether the second DUI is being treated as a first or second offence — that single question moves the numbers more than anything else. 4. Start the DUI Alcohol or Drug Use Risk Reduction Program question early. The statute puts a 120-day clock on completion after conviction, and courts notice when it is already underway. 5. Ask counsel whether any diversion, conditional discharge, or first-offender treatment is available to you on the possession counts. 6. Do not make a decision about how to resolve the case based on penalty ranges you read anywhere, including here. Ranges are ceilings and floors, not predictions.

⏱ Time limits apply. Your driver's licence case is separate from the criminal case, with a different decision-maker and a different standard, and the window to challenge the licence action started running from the notice you were given at arrest — not from your court date. If those arrests are months old, that window has probably closed, and nothing that happens in criminal court reopens it. Check the notice you were given and ask counsel where your licence stands right now.