A DUI in Georgia – Understanding the Law

Image of an officer giving a DUI, Issa Castro Law Firm.

By: Mark Issa

December 24, 2013

A DUI in Georgia – Understanding the Law

“I blew under a .08, how is it possible for me to still be charged with DUI? Understanding the Georgia DUI Less Safe statute”


Most of us can remember the good ol’ days when we were sitting in drivers education class, learning basic driving skills and safety, traffic laws and regulations, and driving penalties for traffic infractions. You likely learned that once you reach the age of 21, you may operate a motor vehicle after consuming alcohol as long as your blood alcohol concentration does not reach or exceed the legal limit of 0.08 grams. Any amount at or above 0.08 while driving automatically leads to a violation of the DUI statute and is guaranteed to cost you a pretty penny in court costs and insurance. However, your drivers education class may have skipped over the fact that in the state of Georgia, you may be charged with a DUI even though your blood alcohol concentration is less than 0.08 grams.


You may be thinking that this makes little sense. If you are questioning why Georgia law-makers have created both a stringent, “do not pass go, do not collect $200” per se law, and a more seemingly ambiguous law that is determined by an officers’ observations, you are not alone. It is important to understand this “DUI Less Safe” statute, as the penalties are every bit as serious as a per se DUI.


O.C.G.A. § 40-6-391(a)(1) states that a person shall not “drive or be 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.”


So what does it mean to be less safe? “Less safe” means that the driver is less safe to drive as a result of consuming alcohol or drugs, which may be proven by the State in several different ways. It is important to note that there is a rebuttable presumption that a driver is less safe if they operate a motor vehicle with a blood-alcohol concentration between .06 and .08 grams. The State may offer direct evidence of unsafe driving, such as an involvement in a motor vehicle accident or weaving between the lines, circumstantial evidence of less safe driving inferred from standardized field sobriety tests, or circumstantial evidence based upon the officer’s observations of the driver’s appearance, i.e., odor of alcohol. The State only has to prove that your consumption of alcohol impairs your ability to drive in some way.


The take-home message here is that you should never drink and drive. If you need to get from one place to another while you have been drinking, take a cab. The expense of a cab is far less than the cost of a DUI, which beyond financial concerns could cost you your life or another’s life. Once a DUI has been alleged, you have 10 days to request a special hearing or your license may be suspended for a year. If you have been charged with a DUI, contact a DUI defense attorney as soon as possible so that they may take the necessary steps to protect your right to keep your license.

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