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How to Beat a 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 of our DUI clients look at their DUI citation once out of jail and see the DUI less safe Georgia code number (or words) written in the middle part of the citation. Not knowing what this means, they search Google for “what does DUI less safe mean” (or similar words). This article answers that DUI question (and many others).

Being arrested for a DUI “less safe” starts the driver’s path for incurring multiple potential Georgia DUI penalties. The criminal sanctions are only imposed if convicted of a DUI charge. But driver’s license suspension under special laws called implied consent statutes can occur administratively long before your criminal case gets to trial. The criminal law charges are what costs fines, jail time, and other conditions like community service and DUI school.

The Peach State does not just have ONE GA code DUI less safe provision. The primary Georgia DUI statute 40-6-391 has six (6) subparts relating to the various MEANS by which a driver may be charged with DUI less safe to drive.

Four of these subparagraphs are related to DUI less safe and two relate to DUI per se. These first four subsections pertain to “less safe” types of DUI and the last two [40 6-391(a)(5) and 40-6-391(a)(6)] identify being above the legal limit of ALCOHOL or having a prohibited amount of marijuana in your system (respectively). [The entire statute is set forth below, for the six subsections].

What Is a Forensic Test in a DUI Prosecution?

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 in state DUI laws.

Georgia Implied Consent Law Requires License Suspension For Those Who Refuse Testing After Arrest

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 driver (or drugged driver). This type of law is used in all states, and most (like Georgia) have been in place since the 1950s.

Implied Consent Breath Alcohol TestFor those arrested DUI drivers who submit to testing under implied consent, most states use a state-approved breathalyzer. 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.

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.

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. 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).

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.

What Is DUI Less Safe?

Three primary characteristics distinguish a DUI less safe charge from “being over the legal limit” by virtue of 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 through these types of evidence that exist in your case:

  1. 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. If you don’t REMAIN SILENT, this “evidence” from your own words can harm your case. This consists of police officer questions and your answers. Added to the police officer’s observations of you, the State’s case will also point to your failed performance on the voluntary roadside portable breath test. 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
  3. Your DUI less safe refusal of the post-arrest breathalyzer or blood or urine testing.

DUI Drugs Less Safe Georgia

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). Shockingly, Georgia laws punish more harshly (for license suspension) on any drug-related conviction. A first-offense Georgia DUI conviction for drugs suspends all driving privileges for 6 months, and the second offense of DUI drugs is for 3 years!

Georgia DUI Less Safe Code Section

OCGA 40-6-391

40-6-391. Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for a second time; endangering a child

  1. 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;
    • (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.

DUI Per Se Georgia Laws Are Only Accused After the DUI Less Safe Charge Is Made

When thinking of a DUI-alcohol less safe case, the essence of this criminal charge is that the driver was driving with an unlawful alcohol concentration. Georgia has three different per se limits, for different classifications of drivers. For all adult drivers, age 21 and over, and NOT behind the wheel of a commercial motor vehicle, that permissible BAC limit is 0.08 grams percent or more. This GA code section is OCGA 40-6-391(a)(5).

Drivers under the age of 21 years are held to a 0.02 grams percent legal limit, under 40-6-391(k).

BAC 0.089

DUI Less Safe in Georgia Penalty

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. That is the mandatory minimum number of hours, under Georgia DUI laws.

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.

Atlanta DUI Attorney For Defense of a Less Safe DUI Case

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

Larry Kohn, who has been a Georgia attorney for over 20 years, ex-cop Cory Yager who is a Martindale-Hubbell top-rated attorney, and the author, Bubba Head are those three law partners. Our stated goal is 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.

Our clients typically have us defend their criminal charges due to decades of experience and legal representation of thousands of citizens arrested for DUI less safe. With four Atlanta metro offices in Cobb County or Fulton County, our Atlanta lawyers can cover all municipal courts, recorder courts, and state court cases for those drivers who have retained us.

FREE lawyer consultation to review your case facts and your options to FIGHT your DUI charge. 404-567-5515. Why not have your DUI case reviewed by three law firm partners and let us find a way to beat your DUI arrest.


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