What is a DUI Less Safe

In Georgia, it is illegal to operate a motor vehicle with a Blood Alcohol Concentration (BAC) of .08% or higher. The limit is lower for commercial drivers (.04%) and for drivers under age 21 (.02%). However, under Georgia’s DUI Less Safe law, a driver whose BAC is below these limits can still be charged with DUI based on the police officer’s observations that the driver was under the influence.

Key Takeaways

• In Georgia, a driver can be charged with DUI Less Safe if a police officer believes it is “less safe” for them to drive compared to their driving without having ingested alcohol or drugs.
• Prosecution under Georgia’s DUI Less Safe law relies on the officer’s subjective observations that a driver is under the influence of alcohol or drugs.
• DUI Less Safe provides an avenue for prosecution when there is no direct evidence of intoxication, such as a failed breath or chemical test.
• A skilled DUI defense attorney can challenge the officer’s subjective observations, which are a key issue in a DUI Less Safe prosecution.

What Is a DUI Less Safe in Georgia?

Under O.C.G.A. § 40-6-391(a)(1), “a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.”

“Less safe” means the driver is less safe to drive as a result of having consumed alcohol before or while driving, when compared to when not having ingested any alcohol.

A prosecutor can prove DUI Less Safe in one of three ways:

• Direct evidence of erratic driving, such as an accident or weaving
• Circumstantial evidence of less safe driving inferred from the driver’s performance on field sobriety tests
• Circumstantial evidence inferred from the driver’s appearance such as an “odor of alcohol,” unsteadiness, staggering, stumbling, or slurred speech

DUI Less Safe for Drugs

Georgia’s DUI Less Safe law also applies to drivers who are under the influence of drugs. Similar to alcohol, the prosecutor must prove that the driver was less safe as a result of having consumed drugs. The prohibition includes illegal drugs, over-the-counter drugs, prescription drugs, and a driver who is under the influence of a combination of drugs and alcohol.

How is a DUI Less Safe Different from a Traditional DUI?

Unlike a traditional DUI, a criminal charge for DUI Less Safe does not require a failed breath or chemical test. A driver whose BAC is below .08% can still be arrested and charged with DUI Less Safe if the officer believes the driver was impaired. To prove a DUI Less Safe, the prosecutor must establish that the driver was impaired compared to when they were not under the influence.

Georgia’s Implied Consent Law

Under Georgia law, the breathalyzer test and sobriety tests that are administered in the field are voluntary and there is no requirement to perform them. However, once a suspect has been arrested, Georgia’s implied consent law applies and requires that a suspect provide a breath, blood, or urine sample. Refusing to provide a sample is a violation of Georgia’s implied consent law and carries a mandatory 1-year administrative driver’s license suspension in addition to any penalties the court imposes.

Request an ALS Hearing After a Charge for DUI Less Safe

After being charged with DUI Less Safe, a driver has 30 days in which to request an Administrative License Suspension (ALS) hearing. Failure to request an ALS hearing will result in a one-year driver’s license suspension. The ALS is in addition to any driver’s license suspension or other penalties the court imposes.

In cases where a driver refused to submit to a chemical test, which is more common in DUI Less Safe cases, the ALS is imposed without an ignition interlock limited permit.

Defending Against Criminal Charges for DUI Less Safe

Many Georgia drivers believe a DUI Less Safe is a less severe offense than a DUI. This is not true. “Less Safe” simply refers to how the case is proved. It is not a lesser offense. If you were charged with DUI Less Safe in Georgia, you face the same consequences as any DUI. However, because a prosecution for DUI Less Safe relies on the police officer’s subjective observations, defending against a charge for DUI Less Safe requires a different approach.

Because a criminal charge for DUI Less Safe relies on the officer’s subjective interpretations, a skilled DUI attorney can defend against charges of DUI Less Safe by identifying:

• Inconsistencies in the officer’s account
• Improperly administered field sobriety tests
• A lack of clear evidence of intoxication

Contact an Experienced Georgia DUI Defense Attorney Today

The criminal defense attorney team at The McCoy Law Firm, LLC, has decades of experience representing defendants in criminal matters throughout Georgia. From our offices in Cartersville, we serve clients throughout Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County, and Paulding County. Contact us today to schedule an appointment to discuss your situation and how we can assist you.