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DUI Less Safe

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What is DUI Less Safe in Georgia?

Georgia DUI laws are exceptionally complex and there is a significant amount of misinformation passed along by friends-of-friends. One of the most common misconceptions about driving under the influence is that a person cannot be charged with DUI if the person's blood alcohol concentration is less than 0.08 grams. But Georgia also has a “DUI Less Safe” statute, which means that a driver can be convicted of DUI even if the driver's BAC is less than 0.08 grams. The DUI laws in Georgia criminalize driving under the influence of alcohol, drugs, whether illegal, prescription, or over-the-counter, and toxic vapors to the extent that it is less safe for the person to do so. The State may or may not have a chemical sobriety test result to support this charge.

The most important thing to understand is that Georgia does not have lessor DUI offenses that exist in most other states.  We don't have OWI or Wet Reckless or DWI in Georgia.  DUI Less Safe is every bit as serious as any other DUI offense in Georgia.  "Less Safe" refers only to the manner in which a case is proved against the accused DUI Driver in Georgia.  "Less Safe" is the standard of evidence used to prove the DUI.

Richard Lawson is a Former Georgia Prosecutor with almost 20 years experience defending DUI's in Georgia.  He is the most reviewed DUI Lawyer in Georgia.  His reviews can be found on AVVO.  Put his experience to work for you.

10 Day Warning in Georgia DUI Less Safe Cases:

If you have been charged with DUI Less Safe in Georgia, you only have 10 days to have your Georgia DUI Lawyer request an ALS Hearing.  If your Georgia DUI Attorney does not request this hearing, your drivers license will be suspended up to one year. In the case of a refusal (which is more common in DUI Less Safe Cases), the drivers license suspension is one year without a permit to drive.  It is imperative that your attorney files the hearing request and pays the $150 filing fee within 10 days of your arrest.

DUI law in Georgia requires law enforcement officers to read an Implied Consent Notice to any person arrested for DUI in order to request a chemical test to determine the person's blood alcohol concentration. If the driver refuses to take the State's test, that refusal can be offered into evidence at trial.  A refusal to submit to testing creates an inference that the test would have shown the presence of alcohol, but the prosecuting attorney will still have to prove that the driver was impaired. A qualified Georgia DUI Attorney will know how to deal with an alleged refusal in your case.

The Georgia DUI Less Safe Law Defined:

O.C.G.A. § 40-6-391(a)(1) 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.” Law enforcement officers are trained to detect possible DUI violations and their investigation begins with the officer's observations of your driving behavior.

The most common reason an officer will stop your vehicle will be due to his observance of a traffic violation such as speeding, improper lane change, an equipment violation, or expired registration.  If the driver was pulled over for a non-moving violation, it may be difficult for the State to show that he or she was less safe to drive without something more. Many of the officer's observations up to this point will only show a likelihood of the presence of alcohol but will not show that the driver was actually impaired, and more importantly, impaired to the point of being a less safe driver.

How is DUI Less Safe Proved in Georgia:

Two standard jury charges may help clarify what the State must prove and how (a jury charge is what a trial judge tells a jury before they deliberate the guilt or innocence of someone):

I charge you that the term "under the influence of alcohol to the extent that it was less safe for the person to drive" as used in the language of O.C.G.A. §40-6-391(a)(1) means that the person was under the influence of alcohol to the extent that it was less safe for the person to operate a motor vehicle than if he or she were not so affected.  In other words, the State must prove to you beyond a reasonable doubt that the driver had been so affected by the intoxicant that it adversely affected his or her operation of the motor vehicle at the time of arrest.  This is the level of proof which is required for a conviction.  It is not enough that the evidence merely shows the defendant drank some alcoholic beverage and was affected to any extent whatsoever.

Anderson v. State, 226 Ga. 35, 37, 172 S.E.2d 424, 426 (1970). Harper v. State, 91 Ga. App. 456, 458-460, 86 S.E.2d 7, 9-10 (1955).

To win a DUI conviction under the “less safe driver” statue, the state must prove that the defendant had impaired driving ability as the result of drinking alcohol.  Impaired driving ability depends solely upon an individual's response to alcohol.  Because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver.

Evans v. State, 253 Ga.App. 71, 558 S.E.2d 51 (2001).

The prosecution must be able to show that the person was under the influence of alcohol, but a chemical test result is not necessary in order to do so.  An officer's observations during the DUI investigation can be used to support the determination that the driver was impaired by alcohol.  During the investigation, the officer will be look for clues such as the admission of drinking, slurred speech, bloodshot eyes, fumbling, repeating questions or comments, the odor of alcohol on the person's breath, and providing incorrect or inconsistent answers.

Mere presence of alcohol is not dispositive of a DUI Less Safe case, though, regardless of the amount consumed. This can be an important distinction when no “manifestations of impairment” were observed.  An odor of alcohol or a positive Alco-sensor result shows that a person had likely consumed some amount of alcohol, but does not show that the person was actually impaired by it.

What Else Can Constitute Proof Beyond a Reasonable Doubt in a Georgia DUI Less Safe Case.

A conviction for DUI Less Safe can be based entirely on circumstantial evidence of impairment. This is how many DUI arrests at roadblocks have led to convictions, even with no evidence of less safe driving.  Roadblocks and sobriety checkpoints have been a heavily used tool of law enforcement in order to detect and apprehend DUI offenders.

When stopped at a roadblock, no matter the primary purpose of the DUI Checkpoint, the officer will be looking for signs of intoxication.  The officer may ask the driver to step out of the vehicle.  If he does, he will be looking to see if the driver is able to walk normally without swaying and stand without leaning on the vehicle to steady himself.  Field sobriety tests are frequently administered and are designed to assess the driver's mental and physical impairment level.

Law enforcement officers are trained to administer standardized field sobriety tests that are designed to assess your mental and physical impairment – the horizontal gaze nystagmus test, the walk and turn, and the one leg stand.  The last two tests are divided attention tests that focus on the abilities needed for safe driving – balance, coordination, and information processing. During the standardized field sobriety tests, the officer will be evaluating the driver's performance by looking for certain clues. These clues, if observed, may provide the officer with probable cause to arrest.

The driver's performance on standardized field sobriety tests will be used as evidence to prove that the person was a less safe driver due to alcohol. These tests, however, are frequently administered incorrectly and the scoring is very subjective. Many factors can affect the reliability of these tests and the officer should medically qualify the subject prior to testing.

If the driver has any medical issues that would make it difficult to balance or walk comfortably, such as a bad hip or an inner ear condition, the results of the tests will not be reliable. It has also been shown that people that are age 65 or older or more than fifty pounds overweight may not be able to perform the walk and turn or one leg stand test, whether or not they are intoxicated.  Further, environmental conditions may affect the reliability of field sobriety testing as the tests should be completed on a dry, level surface with adequate lighting.

DUI Less Safe Drugs in Georgia

O.C.G.A. § 40-6-391(a)(2) prohibits driving “under the influence of any drug to the extent that it is less safe for the person to drive.” Any amount of a contraband substance in your system constitutes DUI Drugs in Georgia; however, the State must also prove that the drug rendered the driver incapable of driving safely. That is to say that the driver was less safe because of the drug – whether illegal, over-the-counter, or prescribed. Many Georgia DUI Drug Cases involve a combination of a drug and alcohol in the driver's system.

If charged with driving under the influence of a prescription drug, having a prescription for the drug is not a defense to this charge. If the levels of the prescription drug in your system were within “therapeutic” levels, it can be argued that you were not actually “under the influence” of the drug. Prescription Drug DUI in Georgia is an extremely serious charge with potentially even great consequences than alcohol DUI. The reason it is more serious is that upon a conviction for DUI Prescription Drugs, there is no permit to drive (as there would be in an ordinary DUI case).

If the officer suspects a driver of being under the influence of illegal or prescription drugs alone or in combination with alcohol, the officer will likely employ a Drug Recognition Expert to examine the driver and determine impairment.  A DRE evaluation is a 12 step process and includes:

  1. Breath alcohol test to estimate a BAC level, if alcohol has been combined with drug ingestion;
  2. Interviewing the arresting officer;
  3. Preliminary questioning including questions to determine if there any injury or medical condition is present that may mimic drug use;
  4. Eye examination;
  5. Divided-attention evaluations;
  6. Checking pulse rate, blood pressure, and temperature;
  7. Dark room evaluation to measure pupil size, and reactions to light;
  8. Examination of muscle tone which can help determine the type of drug that may have been used;
  9. Examination of injection sites, if any;
  10. Questioning the subject;
  11. Opinion of evaluator;
  12. Toxicological sample, typically a blood and urine test, to provide scientific evidence of drug use.

The eye examinations used are the horizontal gaze nystagmus test (commonly known as the HGN test) and the vertical nystagmus test and they are designed to look for an involuntary jerking of the human eye that becomes readily noticeable when a person is impaired by a depressant, whether alcohol or a prescribed medication or illegal drug.

In administering the HGN test, the driver is asked to follow a stimulus (typically a light at the tip of a pen or the officer's finger) with his eyes and his eyes only.  Each eye is examined for three specific clues and the officer will make several passes with the stimulus during the test. There are six total clues and if at least four clues are observed, there is a stronger likelihood that the person is an impaired driver.

If resting nystagmus is detected, which is the jerking of the eye when looking straight ahead, it typically indicates that the person may suffer from a medical condition or has ingested PCP.

The officer will also observe the ability of the eyes to track together when following a moving object side-to-side.  If one eye moves smoothly while the other moves only slightly, if at all, or in a very jerky fashion, the possibility of an injury exists.

Pupil size is a strong indicator of drug use.  Stimulants, marijuana and hallucinogens typically cause the pupils to dilate.

The Rhomberg Balance Test is a divided-attention test given to subjects suspected of being under the influence of drugs or a combination of drugs and alcohol.  During the test, the driver is asked to tilt his head back with his eyes closed while standing up straight.  The driver is then asked to estimate the passage of 30 seconds.

Certain substances tend to "speed up" the driver's internal body clock, resulting in the driver stopping the test after only 10 or 15 seconds. Other substances (especially alcohol) may "slow down" the body's internal clock, resulting in the subject believing that only 30 seconds have passed when 60 or more seconds had gone by. Either way, the greater the time gap between the suspect's estimated and actual passage of 30 seconds, the more likely an officer will score such mistiming as a clue that the driver is under the influence of alcohol and/or drugs.

During the test, the officer is also looking for eyelid tremors and body tremors.  Involuntary or reflexive movements are indicative of drug impairment.

The finger-to-nose test is also commonly given to DUI drug suspects.  It is designed to measure ataxia, which is a neurological sign consisting of lack of voluntary coordination of muscle movements.  The driver is instructed to make a fist with the index finger extended and rotate his palms forward. Then he is asked to tilt his head back slightly and close his eyes.  Once in position, the driver will be asked to touch the tip of his nose with either his right or left index finger. Touching other areas of your face, swaying, and moving to a normal standing position are considered signs of intoxication.

The officer's arrest decision is based on the totality of the circumstances of all phases of the DUI investigation and must be supported by probable cause to believe that the person was driving under the influence of alcohol or drugs or a combination of the two to the extent that he was less safe to drive. The officer will consider the circumstances of the stop, his observations when interacting with the driver, the driver's performance on the standardized field sobriety evaluations, the result of preliminary breath testing, and, if drug use is suspected, the DRE evaluation.  Because circumstantial evidence of impairment and of alcohol or drug consumption can be sufficient to convict for DUI Less Safe, a chemical test result is not necessary and the absence of a test or a test result below 0.08 grams will not guarantee a win. As you can see, DUI Law in Georgia is complicated.  You need the Best DUI Lawyers in Georgia.  You need a Georgia DUI Lawyer dedicated to your defense. 

There is Help if You are Charged With DUI Less Safe in Georgia:

People often think that DUI Less safe is somehow a lessor offense than any other DUI. Nothing is further from the truth. "Less Safe," only refers to how a case is proved.  We have no lessor DUI offense in Georgia.  Most states do have lessor offenses of DUI.  Georgia does not.  If you are charged with DUI Less Safe in Georgia, you are facing the same consequences of any DUI in Georgia.  We are here to help 24 hours a day, 7 days a week.  We are available nights and weekends because you deserve help when you need it.  Call our Georgia DUI Lawyers now for immediate attention. Our Georgia DUI Attorneys are here to help you when you need it most. We are also here for 24 hour a day Georgia DUI Information on our website.

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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!