Understanding DUI Less Safe in Georgia

By: William C. Head, Award-Winning Board-Certified Drunk Driving Book Author and DUI Specialist providing legal advice for DUI less safe in Georgia and aggressive DUI defense since 1976.

Many drivers first see “DUI Less Safe” on their citation and wonder, “What does DUI Less Safe mean?” Does it mean they were over the legal limit? Can they fight the charge?

Unlike DUI Per Se, which is based on BAC test results, DUI Less Safe relies on officer observations and does not require a breath or blood test. This guide explains the key differences between these charges, and the penalties you may face after being charged with them.

What Is DUI Less Safe? (Georgia Law & Legal Meaning)

Under O.C.G.A. § 40-6-391(a)(1), Georgia law prohibits operating a vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. This means that even without exceeding the legal blood alcohol concentration (BAC) limit, a driver can be charged if impaired. The Georgia Code section pertaining to DUI Less Safe is below:

(a) A person shall not drive or be in actual physical control of any moving vehicle while:

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive

What Happens After a DUI Less Safe Arrest? Penalties and License Suspension

Being arrested for DUI Less Safe in Georgia starts the process of facing multiple potential penalties. The criminal penalties—such as fines, jail time, and probation—only apply if convicted.

However, under Georgia’s Implied Consent Law, your driver’s license can be suspended immediately after arrest, even before your case goes to trial. This means you could lose your driving privileges simply for refusing a chemical test, regardless of whether you are later convicted of DUI.

DUI Less Safe vs. DUI Per Se: Key Differences

This difference between these “types” of impaired driving cases is that the “less safe” DUI cases do not REQUIRE a quantitative result of alcohol drugs or other impairing substances to have been “collected” by police. Following the DUI suspect being arrested for DUI, an implied consent law “notice” is READ by the law enforcement officer on the roadway, in Georgia.

On the other hand, an alcohol DUI per se Georgia case must have a forensic Intoxilyzer 9000 breath test or a blood GBI test for the State to proceed with such per se alcohol charges. The GBI does not rely upon urine tests for ALCOHOL cases but does for identifying TYPES or categories of drugs in urine samples.

Why DUI Less Safe is Charged First Before Per Se

DUI Less Safe is usually charged first because that charge is based on observed impairment and BAC test results are not immediately available. This allows them to arrest the suspect and later adjust charges if BAC results confirm a Per Se violation.

How Police and Prosecutors Prove a DUI Less Safe Case Without a BAC Test

Circumstantial Evidence Used to Prove DUI Less Safe

DUI Less Safe Cases are prosecuted using circumstantial evidence, which means indirect evidence of impairment from mannerisms, speech patterns, and smell of the impairing substance on your breath or in your car or truck when the windows are rolled down.

How Your Own Admissions and Field Sobriety Tests Can Be Used Against You

Plus, your OWN admissions of drinking (or smoking weed) can be used, plus any attempts to “pass” the bogus NHTSA “field sobriety test” battery of OPTIONAL and VOLUNTARY roadside exercises (e.g., HGN eye test, walk and turn and one leg stand).

How Prosecutors Try to Prove Less Safe Without a BAC Test

Three primary characteristics distinguish a DUI less safe charge from “being over the legal limit” by having submitted to a post-arrest FORENSIC test. In other words, once an officer FIRST places you under arrest and “investigates” whether you were too drunk, stoned or high to operate a motor vehicle (in his or her OPINION) that officer has to be able to prove the “less safe” case in court.

The prosecutor will attempt to get a DUI conviction by proving to a jury that you were impaired by using the following types of evidence:

1. Illegal Search and Seizure and Lack of Probable Cause

• Looking at illegal search and seizure and due process of law issues, and challenging whether the law enforcement officers gathered enough proof of impairment to have “probable cause” to arrest you;

2. Your Own Statements and Self-Incrimination

• If you don’t REMAIN SILENT, your own words can harm your case.
• Answering police questions may strengthen their case against you.

You have the right to remain silent—use it!

3. Roadside Sobriety and Breath Tests (Unreliable Evidence):

• the State will also point to your failed performance on the voluntary roadside portable breath test as proof of impairment. A “positive” reading for the presence of alcohol, coupled with your botched field sobriety tests can cause a conviction.
• DO NOT attempt to blow into this preliminary breath test or participate in field testing.
• The NHTSA sobriety tests have been called a FRAUD upon the American public; and Your DUI less safe refusal of the post-arrest breathalyzer or blood or urine testing.

DUI Per Se Georgia Code Section (OCGA 40-6-391 (a)(5)-(6))

Under Georgia law, DUI Per Se applies when a driver’s blood alcohol concentration (BAC) meets or exceeds the legal limit, even if they appear sober. The Georgia Code section pertaining to DUI Per Se is below:

• (5) The person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or
• (6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.
• (b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.

The Legal Alcohol Limits Under Georgia DUI Law

• Underage drivers (under 21 years old) are held to a 0.02 grams percent legal limit, under 40-6-391(k).
• Commercial drivers (CDL holders operating a commercial motor vehicle) are held to a 0.04 grams percent legal limit under 40-6-391(i)
• Adult drivers (those over 21) are held to a 0.08 grams percent legal limit, under 40-6-391(a)(5).

Forensic Testing in DUI Arrests

When an official, evidentiary test is collected on an approved alcohol breath test device, such BAC levels are captured by the electronic device’s computer software program and such results are printed out on an “evidence card” or report. Depending on state regulations, these printed results can be very detailed or only cursory in its reporting, depending on state DUI laws.

Georgia Implied Consent Law: What Happens If You Refuse a Test?

Law enforcement officers are ALL trained to utilize a special license suspension statute called “Georgia implied consent law” in every DUI arrest, once they have cuffed the suspected drunk or drugged driver. This type of law is used in all states, and most (like Georgia) have been in place since the 1950s.

For those arrested for DUI who submit to testing under implied consent, most states use a state-approved breathalyzer to measure blood alcohol content (BAC). In Georgia, the only currently approved breath alcohol test device is the CMI Intoxilyzer 9000. Some states (e.g., California and Tennessee) use more than one manufacturer’s breath alcohol test.

Implied Consent Penalties in Georgia

Here is the ultimate irony. Georgia DUI laws do NOT require jail time for a driver who refuses to take the implied consent test after arrest. However, ANY driver (adult, CDL driver, or underage motorist) who SUBMITS and has a breath alcohol content (or blood alcohol level) of 0.08 grams percent or more MUST go to jail for not less than 24 hours—This is the mandatory minimum jail time under Georgia DUI laws.

Mandatory Jail Time & The Irony of Implied Consent

• Refusing a test? No mandatory jail time in Georgia.
• Submitting to a test over the legal limit? Automatic 24-hour jail sentence.
• In contrast, some states, like Maine, increase jail time for refusing a test
• In Wisconsin, North Dakota, Minnesota, and South Dakota, refusing a test is a criminal offense.

So, giving a test result CAN cost you a day in jail for a DUI 1st offense in Georgia. Ironically, the State of Maine seriously increases jail time for any driver who DOES refuse, in the Pine Tree State. Plus, in multiple midwestern states (Wisconsin, North Dakota, Minnesota, and South Dakota), the state legislatures have criminalized the refusal to test, after a lawful DUI-DWI arrest.

DUI Drugs Less Safe: How Drug Impairment Cases Are Prosecuted

Many people are surprised to learn that a cop can arrest you and have you prosecuted without a forensic test to PROVE what is in your system. Prosecutors who have your DUI refusal as part of the evidence like to communicate this message to a jury:

“Why would an innocent person not want to provide a test, and not be suspended?”

The subsection for DUI less safe drugs is under (a)(2), while the per se marijuana or contraband driving under the influence of drugs statute is under (a)(6).

Harsh Penalties for DUI Drug Convictions in Georgia:

• A first-offense DUI conviction for drugs suspends all driving privileges for 6 months
• A second offense for DUI drugs leads to a 3-year license suspension—stricter than alcohol-related DUIs.

Atlanta DUI Attorney: Defense for a DUI Less Safe Case

If you need a Georgia DUI attorney who is familiar with every trial court in the metro Atlanta multi-county area, our DUI defense team is your first stop.

Our law firm is led by three highly experienced attorneys with over 90 years of collective practice):

• Larry Kohn- A Georgia attorney with over 20 years of legal experience
• Cory Yager- a former police officer who is a Martindale-Hubbell top-rated attorney,
• Bubba Head- A nationally recognized DUI defense attorney and legal author.

Our goal is clear: s to try to find a way for a favorable case disposition by fighting to have a DUI case dismissed, reduced, or go to trial rather than have the client plead guilty.

With over 90 years of combined experience, we have represented thousands of DUI Less Safe cases across Georgia. Our four metro Atlanta offices in Cobb County and Fulton County allow us to represent clients in municipal, recorder, and state courts.

Charged With DUI Less Safe or DUI Per Se? Get a FREE DUI Case Review Today

Call 404-567-5515 for a FREE lawyer consultation to review your case facts and options to FIGHT your DUI charge. Let our three top-rated DUI attorneys evaluate your case and find the best way to fight your DUI arrest.