Police Officer Circumstantial Evidence: DUI Less Safe Charge

By: William C. Head, DUI Lawyer Near Me in Metro Atlanta and Board-Certified DUI Attorney

Often, those arrested for OCGA DUI less safe will call to ask our law partners, “what does DUI less safe mean?” Our legal experts tell them that they are being accused of being too drunk (or too stoned on drug) to safely operate a motor vehicle.

Clients then try to explain why that assertion is not true, based upon only having X number of drinks and not under the influence of alcohol, or possibly saying that he or she had a prescription for some medication and could drive after taking it. They often want to have a full copy of the Georgia DUI statute 40 6 391 or ask our Atlanta attorneys about the DUI less safe Georgia penalty.

In a Georgia DUI less safe case, impairment of one’s ability or mental or physical capacity to operate a motor vehicle is usually linked to an impairment of the person’s normal senses, judgment, and motor skills. Proof of actual erratic or unsafe driving to obtain a conviction on a DUI in Georgia is not required to be proven in Georgia or most other states.

A DUI less safe refusal means that the arrested driver would not give consent for a post arrest chemical test of breath, blood or urine. Georgia DUI penalties under the criminal law aspect of a DUI charge are not as tough as the driver’s license suspension aspects of an implied consent violation from a DUI refusal.

In such cases, and especially when no judicial search warrant is obtained for a forcible blood extraction, various types of circumstantial evidence will be relied upon to try to convict that driver. This article provides details of how our seasoned veteran DUI lawyer have seen the State prosecutor try to prove to a jury that you were too drunk to drive or were obtunded by marijuana or other controlled substance.

DUI Less Safe Georgia: What Is Less Safe DUI?

About 25% of those arrested for drunk driving in Georgia refuse to submit to testing under the Georgia implied consent law found in OCGA 40-5-67.1. This testing is routinely requested after the DUI suspect is cuffed and read the implied consent notice.

Basically, when EVERY person charged with driving under the influence under O.C.G.A 40 6 391 is arrested, he or she is being accused of DUI less safe. Whether that will be alleged as being by alcohol, by drugs, or by a combination of alcohol and drugs, or by noxious vapors depended on what evidence the arresting officer gathers.

When numbers from a breath tests or a blood alcohol concentration from a GBI blood collection provide proof of being over the legal limit, the Prosecutor can possibly get a per se DUI conviction plus will try to also obtain a “less safe” conviction, under the GA Code DUI less safe subsection. The standard of proof here is often referred to as being incapable of driving safely.

In those DUI arrests for which the driver consents to taking the post-arrest implied consent test, the driver may also face a DUI per se Georgia case. This type of DUI does NOT require ANY proof of impairment. In an OCGA DUI drugs case or DUI per se due to alcohol, the “numbers” collected by a forensic test of blood, breath alcohol or urine (if over the limit) constitutes the crime being accused.

If ethanol (driving alcohol) is the impairing substance and the driver is convicted on driving with an unlawful alcohol concentration Georgia with a BAC level of 0.08 grams percent or more (collected at any time within three hours), Georgia law calls for 24 hours in jail, even on a DUI in Georgia first offense.

How a Prosecutor Will Try to Prove OCGA 40-6-391

The less safe DUI alcohol case may turn on all or parts of these 17 categories of potential incriminatory “evidence,” as routinely collected by law enforcement personnel before the pullover, during field sobriety testing, possibly during breathalyzer tests at a police station, during booking at the jail, during blood collection at a hospital or other location:

1. Driving conduct, if vehicle is observed in motion before being confronted by police;
2. Accident damage to vehicle and skid patterns that help circumstantially prove errant or high-speed driving;
3. Eyewitnesses from a multi-vehicle collision, who can point to the “at fault” driver being our Client;
4. Pedestrians that may have observed the detained driver’s pattern of operating the vehicle;
5. Cameras from municipal traffic roadway cameras or state intersection cameras (e.g., red light cameras);
6. Persons calling 911 to make a BOLO (be on the lookout) report after seeing dangerous driving or an accident;
7. Statements from others at the DUI arrest location who heard admissions or incriminatory remarks by the arrested driver;
8. Any person was able to “observe,” in Georgia DUI arrests, can give his or her opinion about the driver’s manifestations of impairment, such as slurred speech, red, bloodshot eyes, smell of alcohol, or drugs (marijuana odor);
9. Packages or containers that circumstantially point to the driver’s consumption or use;
10. Police body cam videos, and/or police cruiser videos, with remote microphone pick-up;
11. Receipts found as part of the arrest, showing location of food and beverage purchases;
12. Pre-arrest questioning by the law enforcement of the accused citizen, which is often the most damaging evidence of all (only after being cuffed or told that you are under arrest triggered 5th Amendment
13. Roadside tests (e.g., the so-called field sobriety test battery) requested by police, which many citizens think they will pass, and never do pass. These evaluations are 100% voluntary and optional, so NEVER do them;

1. Post-arrest talking to the officer (caught on video) or making cell phone calls, which the officer knows are not protected by 4th or 5th Amendment, or state privacy laws, in the back of a police car;
2. Cell phone searches, where the smart phone is not password protected, or where the citizen gives the password, in order to allow him or her to retrieve a phone number, to call for a bondsman;
3. Witnesses from the detention facility, discussing the actions and behavior of the accused citizen, when brought in for booking;
4. Breath alcohol test room video, which are set up (primarily) to capture video of any police brutality, but often capture bad behavior, profanity, and threats made by a detained DUI driver.

DUI Less Safe Drugs Cases in GA Are Increasing

Drugged driving cases have steadily grown by 100% in the last 15 years. New, national legalization of marijuana in many states have led to more and more DUI-marijuana cases in Georgia, where conservative laws about smoking weed are still 50 years behind the rest of America.

Sleep driving DUI cases, after taking prescribed medications for insomnia or pain management are up by 400%. Plus, a conviction for DUI-drugs has more devastating DUI penalties in Georgia that a DUI-alcohol case, due to more severe loss of driving privileges and other loss of entitlements (e.g., loss of the GA Hope Scholarship due to a “drugs” conviction).

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

Driver’s License Suspension: A 1-year driver license suspension, but an immediate limited permit available for most GA licensees can be obtained, and full license reinstatement possible after 120 days.

Community Service Hours: 40 hours of community service hours, like 5 workdays, for a 1^st offense DUI. Repeat offenders, however, face thirty (30) days of community service or 240 hours on a DUI 2nd offense within 10 years;

Jail Time: 24 hours in jail are required for any GA DUI conviction where the driver had a BAC level of 0.08 grams percent of alcohol in his or her system after arrest;

Mandatory Probation: Twelve (12) months is required, and cannot be suspended, but credit for any jail time served the night of arrest is given;

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

The Georgia Dept of Driver Services (DDS GA) is also involved in most GA DUI cases, since Georgia implied consent laws can trigger a suspension or a revocation. Such loss of driving privileges can prevent a person from driving, if a DUI refusal has occurred and no ignition interlock option was available and selected within 30 days after arrest.

Hiring Defense Attorneys in Atlanta With More Training Than Your Law Enforcement Officers

A successful defense record for all Atlanta DUI attorneys in the law firm must include possessing the ability to neutralize field sobriety test evidence and finding ways to eliminate breath alcohol test results, especially where the “number” is in excess of the legal alcohol limit. Plus, know the LAW is critical, and this entails our DUI attorneys being familiar with every prior appellate decision on Georgia DUI laws and especially the Georgia implied consent law.

Each DUI defense attorney in our law office, Cory Yager, Larry Kohn and William Head, possesses special training on debunking “drug recognition” officers’ training and roadside tests like the “modified Romberg test” and the less-extensive ARIDE protocols require that our criminal defense lawyers know how to challenge a GBI blood alcohol or drugs test.

Also, every one of our Atlanta criminal defense lawyers near me is an INSTRUCTOR in the three NHTSA standardized field sobriety tests (SFST). This advanced training course which exceeds the training of most police officers making arrests for DUI in Georgia.

Call for your FREE lawyer consultation. Take advantage of this opportunity to hear from DUI experts what your chances of winning might be, after your DUI arrest. Call 24 hours a day, including holidays: 404-567-5515.