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Georgia DUI Laws

Less Safe” Offenses

One type of DUI offense is called the “less safe” driving offense. This offense prohibits a person from driving or being 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. There are five elements of this offense: (1) that the defendant was in actual physical control or driving a (2) moving vehicle; (3) that the defendant was under the influence of alcohol and (4) as a result the drive was less safe; (5) alcohol was consumed prior to or during driving. This offense is most commonly used when the state does not have a chemical sobriety test result, because no chemical test is required under this offense. This means that refusal of a chemical test will not prohibit the state from charging a suspect with a DUI offense. Also, if charged with a “less safe” offense, a defendant can be convicted of a DUI even if the blood alcohol content was less than the legal limit. Although there often no chemical test to show evidence of alcohol, the prosecution is still required prove that the defendant was under the influence of alcohol and it must be true that the drive was less safe as a result of the presence of alcohol.

 

The “less safe” offense also extends to drugs, glue, aerosol, or other toxic vapors, and any combination of those narcotics. It is important to note that the term “drugs” does include prescription medications. There is no statutory distinction between prescribed and non-prescribed drugs and a prescription may not be used as a defense. For any medication or substance, there must be proof beyond a reasonable doubt that the defendant is less safe because of the quantity or concentration of the drug in the system at the time of driving.

“Per Se” Driving Offenses

Another type of DUI offense is known as the “per se” alcohol driving offense. A charge of a per se alcohol driving offense entails being in actual physical control of any moving vehicle while alcohol concentration is 0.08 grams or more at any time within three hours after driving or being in actual physical control. The four elements of this offense are (1) that the defendant was in actual physical control (2) of a moving vehicle; (3) the alcohol level exceeded the legal limit within three hours of driving; and (4) the alcohol was consumed prior to or during driving. A blood alcohol content of .05% or less will create a presumption that the driver was not impaired. Neither side can take advantage of any inference of impairment or non-impairment in the case of a blood alcohol content between .06% and .07%. There is no enhanced penalty for a certain level of blood alcohol concentration, meaning a level far above .08, such as 1.2, has the same penalties as a blood alcohol content of .08 or above. Under this offense, it is immaterial whether or not there was “less safe” driving. There is no “per se” impairment level for controlled substances.  As noted, that is a “less safe” offense. For example, any trace of marijuana, even if insufficient to prove evidence of impairment, can support a DUI-drug charge. The defense is permitted, however, to cast doubt on the reliability of the testing methodology, the qualifications of the lab personnel, or the identity of the sample.

Legal Limits

For persons under the age of 21 at the time of arrest for DUI, a blood alcohol level of .02% or higher is unlawful. For persons were stopped while operating a commercial vehicle for a DUI arrest, a blood alcohol reading of .04% or higher is unlawful. If a driver is stopped in a commercial vehicle and the State’s test reveals ANY alcohol, a 24-hour out-of-service order will be issued, and the truck will be impounded until said time period is over. For persons who are age 21 and older and accused of DUI, a blood alcohol content of .08% or higher taken within three hours of driving or being in physical control of the vehicle is unlawful.

Defenses

A proper defense to both a “less safe” offense and a “per se” offense is to do anything possible to show both lack of proof of “less safe driving” and cast doubt on the accuracy and reliability of the BAC number.


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