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Breath Test Under the Legal Limit

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Blowing Under the Legal Limit:

Can I be convicted of Driving Under the Influence if I blew under the “legal limit?”

Yes. In Georgia, there are different ways you can be convicted for Driving Under the Influence.

One way is “DUI Per Se.” To convict you of DUI Per Se, the State must prove beyond a reasonable doubt that you drove while your blood alcohol concentration (“BAC”) was 0.08 grams or more (as measured within 3 hours after driving from alcohol consumed before driving).

A second way you can be convicted for DUI is “DUI Less Safe.” O.C.G.A. § 40-6-391(a)(1) is the DUI Less Safe statute. This statute states that 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.”

If you have been charged with DUI Less Safe, the State must prove beyond a reasonable doubt that you were incapable of driving safely because of the effects of drugs or alcohol. It would not be enough that you drank some alcoholic beverage and were affected, but the effect must rise to the level that it rendered you incapable of driving safely. The type of proof required to prove DUI Less Safe is what distinguishes DUI Per Se and DUI Less Safe.

While other states offer a lesser charge of DUI, Georgia does not. In Georgia, if you have been charged with DUI Less Safe, you face the same consequences of a regular DUI. DUI Less Safe does not require a less safe act, only that you were less safe to operate a motor vehicle than you would have been had you not consumed drugs or alcohol. DUI Less Safe is simply what the State must prove to convict you.

DUI Less Safe is commonly charged when a person refuses to submit to a test of blood, breath, or urine. It can also be charged if the driver submits to chemical testing and the person's blood alcohol content is less than 0.08 grams.

Without a chemical test to prove the case, the State may rely on other evidence. When the law enforcement officer pulls you over, he or she was trained to look for clues of impaired driving. An admission of drinking alcohol, slurred speech, and fumbling to retrieve your driver's license or registration are just a few of the clues officers are trained to make note of.

Officers are also trained to conduct Standardized Field Sobriety Tests and to note any clues of impairment during each of the tests. The State will use the arresting officer's testimony about his or her observations as evidence against you. A common question asked of a police officer during a DUI trial is: “Did you form an opinion as to whether the driver was less safe to drive, due to the consumption of alcohol?”

DUI Less Safe Examples in Georgia Case Law:

For example, in Drogan v. State, 272 Ga. App. 645, 613 S.E.2d 195 (2005), the Georgia Court of Appeals held that the evidence supported the defendant's conviction for DUI as a less safe driver. There, the police officer observed the defendant driving at night without headlights on, the defendant did not follow the officer's hand motions, the defendant drove through a red light, the defendant failed to yield to oncoming traffic, the officer smelled alcohol on the defendant, and the defendant refused to submit to sobriety tests or the required state breath test.

Another example is Hoffman v. State, 275 Ga. App. 356, 620 S.E.2d 598 (2005), where evidence was sufficient to convict the defendant of Driving Under The Influence Of Alcohol to the extent he was less safe based on the defendant's refusal to submit to sobriety tests and the officer's opinion that the defendant was intoxicated to the extent that the defendant was a less safe driver.

The case of Yglesia v. State, 288 Ga. App. 217, 653 S.E.2d 823 (2007) exemplifies the State's ability to rely on evidence the officer gathered during Standardized Field Sobriety Testing. In Yglesia, the defendant's conviction for DUI Less Safe was supported by his driving 70 miles per hour in a 45 miles per hour zone, an officer's description of his odor of alcohol, bloodshot eyes, and lack of balance, the defendant's testimony that he drank six alcoholic drinks that evening, the officer's opinion that the defendant was under the influence, and the defendant's performance on field sobriety and breath tests.

Understanding Your Blood Alcohol Content Result:

  • A BAC of 0.08 grams or higher gives rise to a “per se” § 40-6-391(a)(5) violation. That's what “per se” means: it's a presumption that the driver was incapable of driving their vehicle safely.
  • A BAC of 0.05 grams or less permits a judge or jury to infer that you were not under the influence of alcohol. However, the State can rebut this inference.
  • A BAC of more than 0.05 grams but less than 0.08 grams does not create an inference, but the trier of fact (which would be a judge or jury) may consider this fact with other evidence.
  • A different set of rules applies to drivers under 21-years-old. For these young drivers, any BAC level above 0.02 grams will give rise to a per se § 40-6-391 (k)(1) violation.

DUI Drugs:

There is also a “less safe” version of Driving Under the Influence of Drugs. Like the Less Safe version of DUI Alcohol, under Georgia's DUI Drugs statute, you may be charged with DUI if you are under the influence of any drug to the extent that it is less safe for you to drive.

In these cases, the State does not need to present blood or urine test results to convict you. The State must, however, present evidence as to the drugs' effect on your ability to drive safely. Many times the State will use a police officer certified as a DRE (Drug Recognition Expert).

A person can also be charged with DUI while under the influence of a lawfully prescribed medications, or combination of medications.  A medical necessity is not a defense to DUI Prescription drugs.  All drivers are responsible for being safe to drive at all times.

The State held in Larsen v. State, 253 Ga. App. 196 (2001) that taking a lawfully prescribed drug is not a defense to DUI charges. In Larsen, the defendant testified that she may have been drunk and on prescribed medication, but she did not intend to drive and was sleepwalking when she got in the car and started driving. The Court held that this was not a viable defense.

DUI Alcohol and Drugs:

Georgia also has a DUI-Multiple Substances statute, in which a person may be charged with DUI if the person is under the influence of a combination of alcohol, drugs, or inhalants to the extent that it is less safe for the person to drive.

Under this statute, the State may convict you of Driving Under The Combined Influence Of Drugs And Alcohol even if, in the same incident, you are acquitted of Driving Under The Influence Of Alcohol and also acquitted of Driving Under The Influence Of Drugs. This happened to the defendant in Mendoza v. State, 196 Ga. App. 627, 396 S.E.2d 576 (1990).

In Mendoza, the defendant was acquitted of driving under the influence of drugs, and the court directed a verdict of "not guilty" of driving under the influence of alcohol, yet was found guilty of driving under the combined influence of drugs and alcohol. This was due to the fact that the arresting officer testified that the defendant refused to submit to a chemical test of defendant's blood, defendant had glassy and bloodshot eyes, and that the defendant tested positive for alcohol on the alco-sensor and for drugs using two field sobriety eye tests.

Summary of Ways a Person Can Be Charged With DUI While Testing Under the “Legal Limit:"

As stated above, there are several different ways a person can be charged with DUI even if the driver blew below the legal limit of 0.08 grams. Those ways include, but are not limited to, DUI Less Safe Alcohol with a BAC between 0.05 – 0.08 grams, DUI of a Combination of Alcohol and Drugs, DUI Drugs, and DUI Prescription Drugs.  Additionally, you can be charged if you refuse a State-Administered chemical test.

When someone refuses testing altogether or blows below the legal limit, the State may rely on other evidence to secure a DUI conviction. Even without chemical test results, the state can charge, prosecute, and secure a DUI conviction.

How You Can Defend Against A DUI Less Safe Case:

The defense team has several advantages in cases where the driver tests below 0.08 grams.  Most crucially, the State does not have the presumption of impairment granted by DUI Per Se. Instead, in a DUI Less Safe case, the State must prove a person was in actual physical control of a motor vehicle while being under the influence of alcohol, drugs, prescription drugs, or a combination of substances to the extent that he or she is less safe to drive than had these not consumed the intoxicants.

When deciding the issue as to whether a person is a less safe driver, the judge will give the following instruction to the jury:

In deciding this issue, you may consider anything in the evidence that you find relevant in deciding whether defendant was a less safe driver. Specifically as to consumption of alcohol, you may consider, among other factors, the smell or lack of smell of alcoholic beverages on the defendant's breath and/or his/her person and whether any test indicated the presence of alcohol in the defendant's system. As to whether the defendant was less safe to drive, you may consider the factors you deem relevant, including, but not limited to, the actual manner of driving the motor vehicle; the defendant's control of his/her mental and/or physical abilities; the defendant's demeanor; the physical condition of defendant; and any expert testimony. Merely showing that the defendant had been drinking or that there was the smell of alcohol on the defendant's breath or person without proof of the manner of driving or the ability to drive is insufficient to prove that the defendant was guilty of driving under the influence of alcohol. O.C.G.A. §40-6-391(a)(1), Turner v. State, 95 Ga. App. 157 (1957),
Smith v. State, 202 Ga. App. 701, 702 (1992), Anderson v. State, 226 Ga. 35, 36-37(3) (1970), Cadden v. State, 176 Ga. App. 377, 378(2) (1985), [From the 2007 Pattern Jury Instructions Revised].

As a result, DUI Less Safe cases are ripe for cross-examination fodder.  When you hire the top-rated Georgia DUI Defense Attorneys at our office, we will challenge the evidence used in your case.  No person is ever assumed to be guilty of anything.

The State can charge and convict you of Driving Under the Influence even if you refused a chemical test or had a BAC less than the legal limit. A jury can consider any evidence that tends to show impairment. It is your Georgia DUI Defense Lawyer’s role to show that you are not impaired.

Do not assume your case will not be prosecuted.  You would not have been arrested if the police officer did not intend to pursue a DUI case.  Take it seriously, and call the Georgia DUI Attorney at our office as soon as possible.  Richard Lawson is a former DUI Prosecutor with over 20 years experience defending people throughout Georgia charged with DUI.  His reviews can be found on Avvo.  Your best defense begins here!

Choosing the Best DUI Lawyer

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When you are arrested for DUI in Georgia, finding the right Lawyer is Job #1. At the Law Offices of Richard S. Lawson we will investigate your case and find the best possible legal defense to your DUI in Georgia. You are in good hands with Richard Lawson and his associates. We will work tirelessly to help you while compassionately holding your hand throughout the entire DUI Defense Process.

Georgia DUI Defense Attorneys

At the Law Office of Richard S. Lawson, we have offices conveniently located throughout metro Atlanta and throughout Georgia. If we do not have a convenient office, we will come to you. We practice throughout Metro Atlanta and North Georgia. If your case is in an area we do not serve, we will find you an attorney in your area free of charge. Our office is part of a State-wide network of Georgia DUI Lawyers. Contact us 24/7 for immediate legal help. Our attorneys are standing by. Your DUI Case will not defend itself. Your Best Georgia DUI Defense Begins Here!