When Impairment Matters More Than BAC: Navigating Georgia’s “Less Safe” Statute

In the State of Georgia, DUI extends beyond simply having a blood-alcohol level of 0.08% or more. You can be charged under a statute known as “DUI Less Safe” (O.C.G.A. § 40-6-391(a)(1)). This statute focuses on whether or not the driver’s ability to operate their vehicle has been compromised by drugs or alcohol. BAC isn’t required evidence in a DUI Less Safe prosecution.

DUI per se versus DUI less safe 

DUI Per Se is a charge that applies when a driver’s BAC is at or exceeds the legal limit of 0.08%. It also applies to minors whose BAC is at or above 0.02%, and commercial drivers whose BAC is 0.04% or higher. The prosecution must prove that you were in actual physical control of the vehicle, but other than that, they don’t have to prove much more. 0.08% blood alcohol establishes the requirements for a DUI conviction.

DUI less safe instead focuses on the driver’s level of impairment and whether or not they are “less safe” to drive as a result of consuming alcohol or drugs. It is based on the subjective assessment of a law enforcement officer who bases their observations on the suspect’s driving behavior, physical signs of impairment, and performance on field sobriety tests.

What constitutes “less safe” driving? 

A DUI less safe prosecution relies on the subjective observations of a law enforcement officer. They do not need to prove that your BAC was at or above 0.08%; they can instead prove the following elements:

• Erratic driving behavior – Speeding, driving too slow, suddenly braking, failing to maintain a lane, or disregarding traffic signals can all be used as evidence against you.

• Physical signs of impairment – Slurred speech, unsteady movements, red or watery eyes, and/or the odor of alcohol on your breath can be used as evidence against you.

• Field sobriety test performance – If you fail one or more field sobriety tests, that evidence can be used against you.

• Admissions of drinking – If you tell the officer you “only had two drinks,” that evidence can be used against you during a DUI less safe prosecution.

Defense strategies against a DUI less safe prosecution 

DUI less safe can often be difficult to defend. The prosecution will center around the individual police officer’s subjective observations during your arrest. An experienced DUI defense attorney can employ various strategies. These include:

• No probable cause – A police officer needs probable cause to pull over a driver. If there was no probable cause, the case can be dismissed.

• Questioning the officer’s credibility – Your inability to pass a field sobriety test could be the result of medical conditions that make performance difficult. In addition, if the tests aren’t performed just right, they are not valid.

Talk to a Marietta, GA, DUI Defense Lawyer Today

Andrew L. Schwartz, P.C., represents the interests of Marietta residents who have been charged with DUI or DUI less safe. Call our Cobb County DUI attorneys today to schedule an appointment, and we can begin discussing your next steps right away.