DUI and DUI Less Safe: What’s the Difference in Georgia?

DUI and DWI: What's The Difference in Georgia? | Farmer, Farmer & Brown Law Firm

Many people are aware that in Georgia, if your blood, urine or breath show an alcohol concentration limit of .08 or more at any time within three hours after driving or being in actual physical control from alcohol consumed before such driving, will be charged with DUI per se, which is found under O.C.G.A. 40-6-391(a)(5).  However, a lesser known law in Georgia involving alcohol is found under O.C.G.A. § 40-6-391(a)(1) where a driver can be charged with DUI if they consumed alcohol to the point where they were less safe to drive.

What qualifies as a DUI less safe?

The law is vague in this area, which gives an officer wide discretion in deciding whether or not to arrest a driver for DUI when their alcohol concentration is less than .08.  The crime of driving under the influence to the extent that it is less safe to drive does not require proof that a person actually committed an unsafe act while driving; rather, it requires showing three elements: (1) driving, (2) under the influence of alcohol, (3) to the extent that it is less safe for the person to drive.

How much alcohol can I consume before I would be considered less safe to drive?

In Georgia, if you blow below .05 it is presumed that you are not under the influence of alcohol.  If you blow between .05 and .08, it is a neutral presumption as there is not an inference of whether or not you are under the influence.  As a result, a person who blows under .05 would almost certainly not be charged with DUI.  A person who blows between .05 and .08 will likely only be arrested for DUI if there are other corroborating evidence such as failed field sobriety tests, moving violations such as speeding or failing to maintain lane or physical manifestations such as slurred speech, unsteady on feet or bloodshot eyes.  The appellate courts have have been all over the place on what constitutes enough to arrest a driver for DUI less safe.  Within about a year of one another, the Georgia Appellate issued two opinions that show how wide the spectrum is for what qualifies for a DUI less safe.  On one end of the spectrum, if the evidence shows only that a driver is intoxicated and does not show that his consumption of alcohol has impaired his ability to drive, there is no probable cause to arrest for driving under the influence of alcohol (DUI) to the extent that it was less safe to drive.  However, on the other end of the spectrum, an officer had probable cause to arrest the defendant for driving under the influence (DUI) to the extent that it was less safe to drive, when the defendant refused to submit to field sobriety testing. The officer smelled the odor of alcohol on the defendant’s breath, and the defendant admitted that he had been drinking.

The wide range of the law under DUI less safe shows the importance of hiring an experienced DUI attorney to vigorously defend against any DUI arrest but in particular, a DUI less safe arrest.

Georgia DUI is a serious charge and a criminal offense. If you have been charged while driving under the influence, call FFB today to discuss your case and develop a solid defense strategy. The highly qualified DUI and criminal defense lawyers at Farmer, Farmer & Brown will help you defend you from the damaging effects of a conviction Call us today to schedule a consultation at (770) 422-4241 or email us at info@ffbfamilylaw.com.  

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