When chemical testing creates a presumption that a driver is intoxicated, the prosecutor has an easier job in court. Proof that the driver's blood alcohol concentration (BAC) level was over the legal limit is all the evidence needed to show that the individual was driving under the influence of alcohol. But in some states, a driver with a BAC level that is under the legal limit can still be charged with driving under the influence (DUI).
Georgia is one of those states. Anyone driving in Georgia is wise to get an overview of the DUI laws, including the DUI Less Safe.
Driving Under the Influence and DUI Per Se
Georgia statutes, like those in all states, make it illegal to drive under the influence of alcohol. The violation is termed a DUI. The most common type of DUI arrest in Georgia is for the so-called "per se" DUI. This happens when the driver takes a chemical test to determine the alcohol in their system, and the test shows that their BAC level is 0.08 percent or higher. Per se means "in and of itself," so evidence that a person's BAC is above the legal limit is sufficient proof that the person is intoxicated.
The primary means of testing for alcohol used in Georgia is the breathalyzer. The driver blows into the device, which uses the amount of alcohol on their breath to determine the blood alcohol concentration level. Georgia law contains an implied consent provision that deems all drivers to have consented to chemical testing for DUI purposes in exchange for the privilege of driving on Georgia highways. Refusal to take a chemical or breath test when asked to do so by a law enforcement officer is a separate legal violation, punished administratively by a driver's license suspension.
DUI Less Safe Charge
If the breathalyzer shows the driver's BAC level to be 0.08 percent or higher, there is a legal presumption that they are intoxicated, but when the BAC is under 0.05 percent, there is a presumption that they are not intoxicated. When a driver's BAC level is between 0.05 and 0.08 percent, there is no presumption either way. This is the territory where the "DUI Less Safe" comes in.
A police officer can arrest a driver for a DUI if their BAC test results are between 0.05 and 0.08 percent. But in order to do so, the officer must have corroborating evidence of impairment. That is, the driver must have exhibited symptoms of intoxication, like a red face, the smell of alcohol on their breath or lack of coordination. How the driver performs on the field sobriety test is also relevant evidence.
Elements of DUI Less Safe
To charge and convict a driver of a DUI Less Safe, the Georgia prosecutor must show all of these elements:
- The individual was driving, or in actual control, of a motor vehicle.
- The driver was under the influence of alcohol.
- The alcohol consumed rendered the person less safe to drive.
The standard is somewhat ambiguous, giving law enforcement considerable latitude in making an arrest, and the courts have considerable latitude in holding someone guilty of this crime. Some courts give deference to the arresting officer's view of the situation; others apply a stricter standard. For example, one Georgia appellate court ruled that the driver must have a BAC level of between 0.05 and 0.08 percent, plus evidence must show not just that the driver was intoxicated, but that their driving was actually impaired by the alcohol. Another appellate opinion held that if a driver refuses to take a chemical test, and the officer smells alcohol on their breath, that is sufficient probable cause to arrest the driver on a charge of DUI Less Safe.
Because of the amorphous nature of this violation, more of these cases go to trial than the much more open-and-shut per se DUI. The prosecution still has the burden of proof; they must establish that the driver consumed alcohol to such an extent that it rendered them less safe to drive, and they must prove each element of the charge beyond a reasonable doubt. This can include evidence of erratic driving behavior, lack of coordination outside the vehicle, the odor of alcohol, slurred speech or other evidence suggesting that the driver was under the influence of alcohol.
Punishment for DUI Less Safe
Although the term "less safe" in this charge might make some think it is a lesser offense than a normal Georgia DUI, but that is not the case. It is a DUI subject to all of the normal DUI penalties with one exception: There is a 24-hour minimum jail term for someone convicted of a per se DUI in Georgia, but this does not apply to a conviction for a DUI Less Safe.
Generally, the criminal sanctions for a DUI offense depend largely on the individual's driving history. The court looks back for five years. If the driver has no prior DUIs in that period, the offense is usually treated as a first offense DUI, with the least severe punishment. If there is one prior in the five-year period, the current DUI is a second offense, and so forth.
A first, second and third simple DUI – without causing any injury to, or death of, another individual – is a misdemeanor. Misdemeanors are the less serious types of crimes, and the maximum imprisonment penalty for a misdemeanor is one year, but in fact these offenses usually get only a few days to a few weeks of jail time.
A Fourth DUI Conviction is a Felony
A fourth DUI in a 10-year period is a felony charge. This is a much more serious offense, and incarceration is spent in a state penitentiary. Fines are higher, and the period of license suspension is longer, as well. It is also a felony charge if a person driving under the influence, including a DUI Less Safe, causes an accident that results in serious injury or death to another person.
Other Georgia DUI Sanctions
Other typical sanctions for a DUI charge include an alcohol and/or drug substance abuse evaluation; attendance at a drunk driving education program; attendance at a victim impact program; a specified number of hours of community service; and, when the person is allowed to drive again, the installation of an ignition interlock device (IID) in every car that they own or drive regularly.
An IID is a type of breathalyzer device that the driver must blow into before the car will start. If the machine detects alcohol on the driver's breath, it will not allow the car to start.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.