Skip to main content

Will this DUI conviction go through?

Mcdonough, GA |

I'm under 21 and blew a .037 and .041 which is very low and I had a fever when I blew the breathalyser. I admit that I had 3 beers but that was over 3 hours ago from when I blew! how can I prove I had a fever in court?

+ Read More

Attorney answers 9

Best Answer

Proving that you had a fever is not really the answer. You have to understand that the judge and jury do not know anything about breath testing. Its your lawyers job to teach them from square one, how breath testing works and why your result is unreliable. Why having a fever would affect the breath test results. Its hard for people to understand or believe that you had a fever but still went out and drank a few beers. Its really not the best defense.

The way you prove you had a fever is simple by having someone testify that you had a fever. It can be you, a nurse a friend or you can simply argue in closing that a fever caused the results.

There many ways to attack baby DUI results, namely that the machine has never been calibrated for a result under .08. There are no test or studies to show accuracy for baby dui's.

You really need a lawyer. You will most likely lose by representing yourself. The judge and prosecutor do not care that you had a fever.


Hire an attorney. Start meeting with attorneys now.


Having a fever has nothing to do with your blood alcohol concentration.
I hope you did not admit to having 3 beers to the officer.
I also hope you have hired a lawyer to help you with your case.


Yes you have some issues. Your citations probably show a charge for DUI "per se" and "less safe". As a minor, your blood alcohol exceeds 0.2 so that is enough. If that was never done - or if it is tossed out for lack of calibration, etc. - you still face a "less safe" charge. That requires the state to prove that you consumed alcohol and that alcohol made you a less safe driver as a result. That is not a terribly high standard for the state.

Your inquiry does not make it clear if you admitted anything to the police. If you are stopped, you will probably hear "Do you know why I stopped you?" or "Have you been drinking tonight?" The police can ask you this with impunity. When you answer, you give them evidence on a platter. If you did, they now have even more. Plus, there ay be the smell of alcohol, your bloodshot eyes, slurred speech, etc etc.

DUI laws are very strict and all the worse for minors. You need to find an attorney very very quickly.

I hope this helps. Good luck.


Yes, hire an attorney at once.


First, having a fever will not affect the test results. This machine measures the amount of alcohol that is being excreted from your body through your breath. Although there are some other chemicals that can affect your test results, and some physical conditions that can as well (e.g., ketosis), having a fever is not one of them.

second, even if this were, it is going to be a weak defense because it will be based upon testimony coming from you, the accused. If you have to testify in order to establish that you had a fever, your motive for lying will create skepticism among the jurors. It does not make much sense that you were ill enough to have a fever but were out drinking beer.

For you this is a per se DUI. All the State has to prove is that you were driving and that, within 3 hours after you were stopped, you blew into their machine resulting in a BAC of .02 or more. Therefore, you are set up for a conviction. However, an attorney may be able to get this charge reduced to reckless driving. Hire a local attorney to handle your case.


You have been given some very good answers. The only thing I would add is that if you are close to being 21, you will want to hold off resolving the case until after your birthday. The BAC limits will be the same because the DUI happened before 21. However, the consequences to your license are vastly different if you resolve the case after your 21st birthday.

The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP EMAIL:, OFFICES: 53 W. Candler St., Winder, Ga. 30680, 106 Washington Street, Jefferson, Ga. 30549, Or 718 Oak St. Gainesville, Georgia. PHONE: (770) 307-4899 or (770) 538-0555 serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation


You would have to hire an expert witness to present this evidence to the jury. As far as proving you had a fever that night it will most likely be your word against the officer's unless he took you to the hospital because you were sick, or you were later seen by the medical staff. You did blow very low, and this may be a case that could get worked out to something other than a DUI conviction without you having to hire expert witnesses, etc.

James L. Yeargan, Jr. is licensed to practice law in the State of Georgia. All information given is based only on Georgia law, and is not directly applicable to any other jurisdictions, states, or districts. Any answer given assumes the person who asked the question holds a Georgia Drivers License, and this license is not a commercial drivers license (CDL). This response, or any response, is not legal advice. This response, or any response, does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information. Any state specific concerns should be directed to an attorney who is licensed to practice law in that respective state.


First - I don't recommend that YOU try to represent yourself in this case. Representing yourself in a DUI case is like a surgeon performing an operation on himself. I don't think either of you would like the results!
Second - in order to effectively use the breath temperature defense a Breath Testing Expert would be required. The expert would have to be qualified as an expert before he was allowed to testify about how a higher breath temp than normal could effect the results. If you represent yourself, YOU will be the one responsible for getting the expert qualified under the court rules and then you would have to conduct the necessary questioning that would educate the judge and jury about the dense.
Third - As a practical issue I hope you did not admit to drinking 3 beers earlier to the officer. I think you could run into problems trying to explain to a jury how you were sick with a high temp, but were still able to drink 3 beer before driving. And stop posting any information about your case on a public forum! Prosecutors often check social media websites for any info or evidence that they can find about a defendant.
Finally, I could go on and on trying to explain the different issues that may be present I your case. But I think the best thing that you could do to help your defense is to hire the best DUI defense attorney that is available to you. The attorney will conduct an in depth interview with you in order to be able to determine the best defenses available in your case. I know this isn't the answer you were hoping to get, but I hope it is helpful to you. Good Luck in you case!!!
George McCranie

The information provided in this response to a question is not legal advise and is provided only for general information purposes. My response should not be taken as legal advise as no attorney / client representation exists. Additionally, the information given in this answer is specific to the State of Georgia only and should not be applied to any other state.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer