dissenting.
Ryan Bohannon was charged with violating OCGA § 40-6-391 (a) (5) and he asserts that that enactment is unconstitutionally vague. As the majority correctly holds, the scope of the statute is narrowed somewhat by the requirement that the proscribed post-driving blood-alcohol level result only from alcohol consumed before or during the act of driving. Thus, the statute applies only to those individuals who register the proscribed blood-alcohol level and who drank before or while driving. However, OCGA § 40-6-391 (a) (5) still must establish *138a standard which is sufficient “ ‘to enable (individuals) to conform their conduct to avoid that which is forbidden. . . .’ ” Hall v. State, 268 Ga. 89, 92 (2) (485 SE2d 755) (1997). Thus, the statute “must give the individual notice so that he may make an intelligent choice when deciding whether to drive after he has been or while he is drinking.” Lester v. State, 253 Ga. 235, 236 (1) (320 SE2d 142) (1984). In my opinion, OCGA § 40-6-391 (a) (5) does not establish a constitutionally sufficient standard and is, therefore, unconstitutionally vague. Accordingly, I respectfully dissent.
“When a person drinks, his blood-alcohol count rises.” Lester v. State, supra at 236 (1). The majority concludes that here, as in Lester, the contested statute provides a standard sufficient to apprise an individual that his or her blood-alcohol content has risen to the proscribed level such that the act of driving should be avoided. In my opinion, Lester is entirely distinguishable because the terms of the contested statutes are fundamentally different. The former per se statute at issue in Lester proscribed a specified blood-alcohol level at the time of driving and was, therefore, sufficient to inform the public that a person whose prior consumption of alcohol was so great that the blood alcohol level had risen to that level while driving was guilty of a crime. Lester v. State, supra at 237 (1). There was a clear nexus between the prior alcohol consumption and the subsequent act of driving itself. Thus, one committed a per se violation of OCGA § 40-6-391 (a) only by drinking alcohol and subsequently driving after the blood-alcohol level had risen to the proscribed level, whereas one who drove shortly after drinking an equal amount of alcohol faced no criminal prosecution for a per se violation if the act of driving was completed before the blood-alcohol content rose to the proscribed level. Compare OCGA § 40-6-391 (a) (1). Under OCGA § 40-6-391 (a) (5), however, the proscribed blood-alcohol level at the time of driving is totally unspecified and wholly irrelevant to criminal responsibility. Instead, the blood-alcohol level while driving is merely that which will be sufficient to rise to 0.10 grams or greater within three hours after the person has ceased to drive. Thus, unlike the standard of conduct established under the former per se statute, OCGA § 40-6-391 (a) (5) requires that any individual who wishes to avoid committing a per se violation must determine whether his or her blood-alcohol content will exceed 0.10 grams not only while actually driving, but at any time within three hours thereafter. Under the former per se statute, a person who drank definitely knew that he or she did not violate that statute by driving before the proscribed blood-alcohol level was reached. Under OCGA § 40-6-391 (a) (5), a person who drinks cannot know whether he or she has committed a per se violation until three hours after the driving has ended.
Standing alone, neither the consumption of alcohol nor the oper*139ation of a vehicle constitutes a crime under OCGA § 40-6-391 (a). It is only when the consumption of alcohol causes the attainment of a proscribed blood-alcohol level or results in the imbiber becoming a less safe driver that a violation of the statute occurs. Thus, the consequence of alcohol consumption must coincide with the act of driving. It is constitutional for the General Assembly to declare that the act of driving while having a specified blood-alcohol level is a crime. Lester v. State, supra. The General Assembly may even provide that it is unlawful to drive with any level of intoxicants in the system. See Kevinezz v. State, 265 Ga. 78 (454 SE2d 441) (1995) (zero tolerance for driving with “any amount” of marijuana or cocaine in the blood or urine). In my opinion, however, it is unconstitutional to predicate a per se violation of OCGA § 40-6-391 (a) upon a standard which requires the individual to “ ‘predict when and whether a 0.10 [gram] alcohol level will be reached within three hours of driving[.]’ ” Commonwealth v. Barud, 681 A2d 162, 166 (Pa. 1996). Entirely unlike the statute construed in Lester, the present Code section requires that individuals of common intelligence now must necessarily guess as to whether their present conduct will result in a future criminal violation and they can assure against a criminal prosecution only by waiting to drive for at least three hours after taking a drink. Because I believe that, as worded, OCGA § 40-6-391 (a) (5) is unconstitutionally vague, I must dissent to the majority’s contrary holding.
Decided February 23, 1998. Sean A. Black, for appellant. James E. Cornwell, Jr., Solicitor, Thurbert E. Baker, Attorney General, Neal B. Childers, Senior Assistant Attorney General, Carol A. Callaway, Assistant Attorney General, for appellee.I am authorized to state that Chief Justice Benham joins in this dissent.