A police officer issued a uniform traffic citation charging appellee Kaemptah Kachwalla with driving under the influence of drugs to the extent he was a less safe driver. OCGA § 40-6-391a2. Appellee filed a demurrer in which he contended, among other things, that OCGA § 40-6-391a2 is an unconstitutional violation of the equal protection clauses of the state and federal constitutions. Relying on our decision in Love v. State, 271 Ga. 398 3 517 SE2d 53 1999, the trial court granted the demurrer, concluding that OCGA § 40-6-391a2 “suffers the same constitutional infirmities as OCGA § 40-6-391a6 which was found to violate equal protection in Love and thus must be stricken as violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution.” Pursuant to OCGA § 5-7-1a1, the State has filed an appeal from the trial court’s decision.
This case is concerned, as was Love v. State, with the interplay of subsections a and b of § 40-6-391. Subsection a sets out six methods of proving that a person is driving under the influence of alcohol or drugs. See Lester v. State, 253 Ga. 235 2 320 SE2d 142 1984. Subsection b notes that legal entitlement to use a drug is not a defense to a DUI charge, but that a person charged with DUI who is legally entitled to use a drug other than alcohol does not violate the statute unless “such person is rendered incapable of driving safely. . . .” In Love, the issue was whether constitutional equal protection guarantees were violated when the driver was charged with the per se violation found in subsection a6, which makes it illegal for a person to be driving while there is any amount of marijuana or controlled substance in the person’s blood or urine. Subsection a6 mandates conviction for the per se DUI violation for a driver with metabolites of illegally-used marijuana in his system, while under subsection b, a driver with metabolites of legally-used marijuana in his system could not be found guilty of the per se violation and could only be found guilty of DUI if the State established that the driver was impaired. Noting that the pharmacological effects of marijuana do not differ depending on whether the marijuana was legally or illegally used, we determined in Love that the legitimate state interest in public safety was not served by the disparate treatment afforded a driver charged with an a6 violation.
