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DUI Less Safe: DUI in Georgia With No Test Results

By: William C. Head, Criminal Defense Attorney Atlanta GA and ABA Board-Certified DUI Attorney

DUI Less Safe: DUI in Georgia With No Test Results

What Is DUI Less Safe? (DUI in Georgia First Offense)

As defined by the GA Code, DUI less safe means that the person is too impaired to drive. That can be from drunk driving from drinking alcohol, or DUI-drugs, by being incapable of driving safely from any type of drug (illegal, prescribed or over the counter). Under the Official Code of Georgia (O.C.G.A.) DUI drugs can be accused various ways in GA DUI less safe cases.

Under most driving under the influence statutes (across America) it is illegal to drive a vehicle while “under the influence” of alcohol or other any other intoxicating substance or drug. The crime (where no test results are collected after your arrest) is called a “DUI less safe charge,” as found in OCGA 40-6-391. For alcohol, the DUI less safe Georgia code subsection section is (a)(1).

A second type of driving under the influence case is added to your criminal charges when you submit to the post-arrest implied consent test or breath, blood or urine. This is called a DUI per se Georgia case, or “driving with an unlawful alcohol concentration Georgia DUI, under subsection (a)(5) of Georgia DUI statute 40 6 391.

Obtaining a blood alcohol concentration via blood draw, or breathalyzer test creates evidence of a second kind of DUI offense, which some call “over the limit.” But, chemical testing (blood, breath, urine) must be collected by law enforcement at a time within three hours of driving ending.

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However, state DUI-DWI laws in each state specify the degree of physical or mental impairment required for a person to be too impaired to drive. For a DUI charge, descriptions of impairment “in any degree,” “to the slightest degree,” “in some degree” and “to an appreciable extent” have each been held to be enough to render a person “under the influence.”

Georgia DUI law uses the phrase “less safe to drive” in describing the crime committed by an impaired motorist charged with a drunk driving offense in Georgia. In GA, this phrase can apply to DUI-alcohol or DUI-drugs.

So, DUI less safe Georgia is the general DUI crime, when no forensic breath test result or blood quantitation is part of the prosecution’s evidence. Police officers sometimes call this cases “DUI less safe refusal” cases.

When discussing “less safe DUI,” the addition of the word “Georgia” is not necessary, since other states have different wording such as those set forth above, or “incapable of driving safely,” which requires a higher level of proof by a Prosecutor.

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Georgia DUI Penalties: What Is the DUI Less Safe Georgia Penalty?

License Suspension: One-year license suspension, but immediate limited permit available for most Georgia licensees, and reinstatement possible after 120 days.

Community Service: 5 days of community service (40 hours), on a first offense DUI, and 30 days of community service is mandated (240 hours) for a DUI 2nd offense

Jail: 24 hours in jail are required for any DUI conviction in which the driver had a BAC level of 0.08 grams percent alcohol in his or her system.

Probation: 12 months mandatory, minus any jail time served.

DUI school: Risk Reduction course (DUI classes) lasting for 20 hours.

The Georgia Department of Driver Services (GA DDS) is also involved in most DUI cases, since GA implied consent laws operate to suspend or revoke a person from driving (depending on his or her driving record), if a DUI refusal has occurred.

How can I judge my chances to beat a DUI less safe case in Georgia, when the standard of proof is so nebulous?

The truth is that most accused citizens are poor judges of their chances to win a DUI case. This is because 99% of our clients have never had any kind of criminal trial, and have never watched a trial of any type, especially not an OCGA DUI less safe case.

Virtually 100% have never watched a DUI trial, nor know the intricacies of GA DUI law, or have been the accused person in a DUI prosecution. Plus, a non-lawyer will have no knowledge about how to exclude field sobriety test evidence, or a breath alcohol test, based upon various legal issues surrounding these sobriety tests.

These factors can make a HUGE difference in any DUI case, and a seasoned, experienced DUI attorney can assess the chances of success to a reasonable degree of certainty, once he or she knows all the State’s evidence.

When a person faces a DUI alcohol less safe case in Georgia, the decision about whether the accused driver has been proven to be a less safe driver is up to the “trier of fact.” This is either a jury, or a judge (if the accused citizen or his or her DUI lawyer) opt to submit the guilt-innocence phase of the DUI case to a judge sitting without a jury.

Because tens of thousands of Georgia DUI arrests begin their criminal court journey in a municipal court in Georgia, which is one of several non-jury, entry-level courts, the major factor is deciding on a “judge trial” over a trial by jury is the judge’s reputation for fairness and being even-handed. Because the municipal court judge assigned to hear the DUI case is appointed in all municipal courts except one, some judges make their rulings based on retaining their appointment by the mayor, the city manager, or by the mayor and city council.

When would a bench trial (judge only trial) of my DUI GA be to my advantage?

In his 43 years of trials, William Head and both of his law partners have opted for hundreds of “bench trials” in their clients’ DUI GA cases, where the Judge alone decides the accused’s guilt or innocence. A few of these successful high-profile criminal law cases (both DUI and non-DUI) have been broadcast on Atlanta news reports. An experienced DUI attorney knows each court, and the tendencies of each judge, so that the move is always “calculated” to offer an equal or better chance of acquittal, than a jury trial.

The fact is that the person facing DUI less safe charges MUST rely upon his or her DUI lawyer to help make this decision, and the rule in Georgia is that the CLIENT always gets the last word, for having a jury trial or selecting a bench trial. When in doubt about the fairness or track record of an assigned trial judge, Mr. Head and his partners ALWAYS opt for a jury trial, since the decision of the jury panel must be unanimous.

For both strategic issues or practical issues a skilled and experienced DUI attorney will selectively opt for a bench trial, for a client facing DUI in Georgia. A few of those good reasons would be:

  1. Judge’s track record for acquittals in DUI defense cases is excellent;
  2. Some technical issue exists that can be decided, and not be appealed by a prosecutor at a pre-trial motion hearing, at the non-jury court level (e.g., client had all the alcohol AFTER the vehicle was parked, so not proof of ever operating on roadway after drinking).Judge’s aversion to certain types of DUI cases (e.g., person is sleeping in car, with engine off) means an almost certain acquittal;
  3. By transferring the case to a jury trial court (State Court or Superior Court) additional criminal offenses – of a more serious nature — may be added to the present criminal charges.
  4. The non-jury court is known for being very fair with punishment (such as no additional jail time, after trial), in the event of conviction for DUI, whereas the jury trial court is just the opposite, handing down lengthy jail terms for a DUI first offense, just because the person requested his or her day in court.
  5. The accused driver may need a quick resolution of the case, at a municipal court, while delaying the administrative license suspension case, to avoid a DUI-refusal penalty of 12 months, with no right to drive.
  6. Client has a career change, travel plans, military deployment, or professional school plans that can be affected by a pending case, and a quick resolution is preferable.

Do I Need a DUI Lawyer? Searching for The Best DUI Attorney in GA

Some people foolishly try to self-assess their chances of winning the DUI in GA. The operable word here is “FOOLISHLY.” Just reading TRUE DUI case histories with: (1) BAC levels triple the alcohol legal limit, or (2) with a DUI refusal and failing all three NHTSA field sobriety tests, or (3) another drunk driving case report of a DUI checkpoint with a Intoxilyzer breath test double the legal alcohol limit, from two of our previous criminal trials will dissuade you from thinking that you have no chance to beat a DUI in court.

After being arrested for DUI in GA, some people are so depressed that they dwell on their mistake the night before, and not on beating the criminal charges. Fear of the unknown can be a powerful enemy. Our DUI lawyer partners WELCOME comparing criminal attorney comparisons. For example, our law firm has three different law book authors, which is unique in Georgia and possibly in all of America.

Some Of The Legal Books Of Our Three Partners

The best DUI lawyers in Atlanta, Georgia will offer you a FREE attorney consultation, explain how their criminal defense attorneys review your DUI case facts and implement a game plan for winning. Call Bubba Head, ex-cop Cory Yager or Larry Kohn, for a FREE consultation.

Our three Georgia Super Lawyers aggressively represent clients accused of committing crimes through filing and arguing suppression motions. Limit your search to a lawyer for DUI who has achieved legitimate legal industry excellence attorney ratings, and who possesses a track record of proven drunk driving defense results on knowing how to beat a DUI. If our law firm has the RIGHT criminal defense attorney for you, ask our law office about our DUI attorney payment plans.

Call our DUI attorneys NOW, 24-7, for an initial criminal case review and to obtain FREE legal advice404-567-5515 or email our criminal justice lawyers at


Highly Searched Links to Related Topics:

GA DDS-Protecting against Driver’s License Suspension under Implied Consent

Constitutionality of DUI Checkpoints in Georgia

BAC Chart for Alcohol Level by Weight and Number of Drinks

Field Sobriety Test Myths and Misconceptions

What Does DUI Mean?

How to Beat a DUI in Court

Wording of the Entire Georgia DUI Less Safe Code Section


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