If you’ve been pulled over in Georgia, you might assume that as long as your blood alcohol concentration (BAC) is below the legal limit of 0.08%, you’re in the clear. However, Georgia law includes a specific provision known as “DUI Less Safe,” which allows law enforcement to arrest and charge you with driving under the influence even if your BAC is below 0.08%—or if you haven’t taken a breathalyzer test at all.
Understanding the “DUI Less Safe” Law
Under O.C.G.A. § 40-6-391(a)(1), a person can be convicted of DUI if they are driving or in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it is “less safe for the person to drive.” This means the prosecution doesn’t need a specific BAC number to secure a conviction. Instead, they must prove two things:
- You consumed alcohol (or drugs).
- That consumption made you a less safe driver.
How Does the Prosecution Prove “Less Safe”?
Without a chemical test, the state relies heavily on the arresting officer’s observations and testimony. Common evidence used to support a DUI Less Safe charge includes:
- Driving Behavior: Swerving, speeding, driving too slowly, or failing to maintain a lane.
- Physical Appearance: Bloodshot or glassy eyes, slurred speech, or the smell of alcohol.
- Behavior During the Stop: Fumbling for license and registration, belligerence, or admitting to drinking.
- Field Sobriety Tests (FSTs): Performance on tests like the Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One-Leg Stand. However, it’s crucial to note that according to the 2023 NHTSA SFST Instructor Guide, these tests are designed to estimate whether a driver’s BAC is at or above 0.08%. They are not infallible indicators of impairment, especially for BACs below that threshold.
The Importance of Challenging the Evidence
Because DUI Less Safe cases rely so heavily on subjective observations rather than objective chemical data, they are highly defensible. An experienced DUI defense attorney will scrutinize every aspect of the stop and the officer’s conclusions.
For example, poor driving behavior can be caused by fatigue, distraction, or simply being unfamiliar with the area. Physical signs like red eyes can result from allergies or working late. Furthermore, Field Sobriety Tests are often administered incorrectly or evaluated based on flawed criteria. The 2023 NHTSA manual clearly outlines strict standardized procedures for these tests; any deviation by the officer can compromise the validity of the results.
Penalties for DUI Less Safe
A conviction for DUI Less Safe carries the exact same penalties as a “DUI Per Se” (where the BAC is 0.08% or higher). These penalties can include:
- Jail time (up to 12 months for a first offense)
- Fines ranging from $300 to $1,000
- A minimum of 40 hours of community service
- Suspension of your driver’s license
- Mandatory completion of a DUI Alcohol or Drug Use Risk Reduction Program
- A clinical evaluation and potential substance abuse treatment
Why You Need Experienced Legal Representation
A DUI Less Safe charge is serious, but it is not a conviction. The subjective nature of the evidence means there are often numerous avenues for defense. At the Law Office of Gordon Hall, LLC, we understand the nuances of Georgia’s DUI laws and the intricacies of NHTSA’s standardized testing procedures. We will aggressively challenge the state’s evidence to protect your rights, your license, and your future.
If you’ve been charged with a DUI Less Safe, don’t assume the case is unwinnable. Contact us today for a consultation to discuss your defense strategy.
DUI Less Safe means an officer determined you were incapable of driving safely due to alcohol or drugs, even if your BAC was under the legal limit or you refused testing.
Yes. Under Georgia’s DUI Less Safe statute, you can be convicted based entirely on the officer’s observations, your driving behavior, and your performance on field sobriety tests.