Most of us are aware that the legal limit for a DUI for a driver over 21 years old is .08. What comes as a surprise to most, however, is that you can also be charged with DUI even if you were well below the legal limit. How is this possible? You can be arrested and charged with DUI, even if you blew below the legal limit, under Georgia’s DUI Less Safe law. In practice, it is a very common way to be charged with DUI in Georgia.

            Georgia law
has criminalized DUIs into a few different categories. The two most common ways
to be charged with DUI are DUI Per Se and DUI Less Safe. DUI Per Se occurs when
a person is arrested after being alleged to be in control of a moving vehicle
with a blood alcohol concentration of .08 grams or more. This means that after
he or she was arrested, law enforcement obtained a blood alcohol reading either
by a breath, blood, or urine test taken typically at the jail or a hospital.

What happens if I
don’t blow or take a breathalyzer?

            In this
situation, you can still be charged with DUI Less Safe. DUI Less Safe in
Georgia means you were in control of a moving vehicle, after having consumed
alcohol, to the extent it made you a less safe driver. Evidence in this
situation may not include an actual BAC number, but the State will attempt to
prove DUI with other pieces of evidence. For example, the State may bring
forward evidence of an odor of alcohol, bloodshot eyes, open containers, and/or
poor performance on field sobriety tests.

            In some
instances, if you decline or refuse the breath or blood test at the officer’s
request, the police officer will take out a search warrant to take your blood
over your objection. In this situation, you can be charged with both DUI Less
Safe and DUI Per Se if the BAC comes back as over .08.

What happens if I
blow below the legal limit?

            In Georgia,
you can still be arrested and charged with DUI Less Safe. This is because a BAC
greater than .08 is not a requirement in DUI Less Safe cases. If you blow a
.07, a .06, or even a .05, you can and will still be prosecuted for DUI. This
seems shocking to some, but we see it happen regularly. The State, in this
situation, still has to prove impairment- meaning the prosecutor must still
prove you were a less safe driver
because of the alcohol.

Georgia’s Law on
Alcohol Content

In Georgia, you are Per Se
impaired if your blood or breath test shows a result of .08 grams or more. If
your BAC is more than .05 but less than .08 grams, there is no inference of
impairment. This means it is up to the judge or the jury to consider whether or
not you were actually a Less Safe driver or not. In Georgia, a BAC of even less
than .04 can get you into court fighting for your life and freedom. In a
scenario where the BAC was les than a .04, Georgia law has a presumption that
you were NOT impaired. The State can rebut this inference through other
evidence in a trial. A different BAC applies in cases where the driver is under
21 years old. In that situation, an under 21 DUI ‘legal limit’ is .02 grams.

We routinely see drivers with a
‘below the legal limit’ DUI have their cases prosecuted. Do not assume that the
prosecuting attorney will throw the case out based on having been less than .08
grams. If you were arrested, the State will most likely bring the prosecution’s
case with any other evidence they have, even
if they do not have a BAC or if the BAC was below a .08 grams.

DUI cases are one of them most
litigated cases in Georgia courtrooms. This is because there is so much at
stake with a DUI conviction: jail time, lengthy and involved probation
sentences, suspended licenses, and a criminal history that cannot be expunged.
There are numerous defenses to DUI Less Safe and DUI Per Se cases, no matter
what the BAC is or what county you were arrested in. If you or a loved one has
been arrested for Driving under the Influence, call W. Scott Smith today for a
FREE CONSULTATION at 404-581-0999.