SANDLIN
v.
The STATE.
No. A10A2197.
Court of Appeals of Georgia.
January 19, 2011.*379 Stemberger, Cunnins & Arnall, D. Scott Cummins, Newnan, Allen M. Trapp Jr., Carrollton, for appellant.
Robert Stokely, Solicitor-General, Stephen J. Tuggle, Assistant Solicitor-General, for appellee.
MIKELL, Judge.
After a jury trial, Jason Allen Sandlin was acquitted of driving under the influence of drugs to the extent that he was less safe,[1] and was convicted of driving under the influence of a controlled substance[2] and failure to maintain lane. Sandlin was also charged with, and pled nolo contendere to, possession of marijuana. On appeal, Sandlin argues that the trial court committed three errors: (1) it denied his motion to suppress; (2) it overruled his demurrer challenging the constitutionality of OCGA § 40-6-391(a)(6); and (3) it entered a judgment of conviction on the violation of OCGA § 40-6-391(a)(6). Because this case is governed by Love v. State,[3] which held that OCGA § 40-6-391(a)(6) was unconstitutional on equal protection grounds, we reverse Sandlin's conviction on this charge.
1. The record shows that David Golz, a forensic toxicologist employed by the Georgia Bureau of Investigation, testified that Sandlin's blood contained metabolites of marijuana and alprazolam, which is commonly referred to as Xanax. Golz testified that alprazolam, a Schedule IV drug,[4] is a controlled substance that acts as a central nervous system depressant, and is only available through prescription.
OCGA § 40-6-391(a)(6) provides that a person with any amount of marijuana or a controlled substance in his or her urine or blood can be convicted of driving under the influence. Under OCGA § 40-6-391(b), however, a person who legally uses a controlled substance can only be convicted of DUI if that person "is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use."[5] Therefore, Sandlin maintains that the statute denies him equal protection under the law because it disparately treats legal and illegal users of alprazolam.
The same argument was made in Love,[6] in which our Supreme Court held that OCGA § 40-6-391(a)(6) was unconstitutional as it pertained to persons with detectable levels of marijuana in their systems.[7] The Court explained that the legislative distinction between users of legal and illegal marijuana was not directly related to the public safety purpose of the legislation.[8] Therefore, it concluded that the statute was arbitrarily drawn and was an unconstitutional denial of equal protection.[9] The Court reversed the defendant's conviction. The same result is warranted here because alprazolam is also a controlled substance that can be legally prescribed.[10] The state maintains that Sandlin was required to show that he was legally authorized to use the alprazolam, but Love[11]*380 does not require such a showing to assert an equal protection challenge to the statute. Thus, Sandlin's conviction of violating OCGA § 40-6-391(a)(6) cannot stand.
2. In light of our holding in Division 1, we need not address Sandlin's remaining enumeration of error.
Judgment reversed.
SMITH, P.J., and ADAMS, J., concur.
NOTES
[1] OCGA § 40-6-391(a)(2). The drugs identified in the accusation were alprazolam and marijuana.
[2] OCGA § 40-6-391(a)(6). The controlled substance named in the accusation was alprazolam.
[3] 271 Ga. 398, 517 S.E.2d 53 (1999).
[4] See OCGA § 16-13-28(a)(1).
[5] OCGA § 40-6-391(b).
[6] Supra.
[7] Id. at 402-403(3), 517 S.E.2d 53.
[8] Id. at 403(3), 517 S.E.2d 53.
[9] Id.
[10] See Doster v. State, 259 Ga.App. 605, 607, n. 2, 578 S.E.2d 262 (2003) (demurrer to DUI charge granted based upon Love, supra, where defendant tested positive for the presence of amphetamine, a Schedule II drug (OCGA § 16-13-26(3)(A))). Compare Keenum v. State, 248 Ga.App. 474, 475(2), 546 S.E.2d 288 (2001) (OCGA § 40-6-391(a)(6) is not unconstitutional when applied to those convicted of driving with a detectable level of cocaine in their systems because "there would never be an instance of a `legal cocaine user'"). Accord Head v. State, 303 Ga. App. 475, 477-478(2), 693 S.E.2d 845 (2010) (same).
[11] Supra.