Can You Be Convicted of DUI in Georgia Even if Your Blood Alcohol Content (BAC) is Below 0.08%?

The standard legal limit for blood alcohol content (BAC) in Georgia and throughout the U.S. is 0.08% for adults ages 21 and older. Most people assume they are in the clear as long as their BAC is below this threshold. However, DUI laws in Georgia are not quite that simple. You can still be convicted of driving under the influence with a BAC below 0.08%.

How Do DUI Laws Work in Georgia?

Drivers in Georgia can be charged with DUI in either of the following ways:

• DUI per se: Under the Georgia Code Section 40-6-391(a)(5), a driver with a BAC of 0.08% or higher is presumed to be driving under the influence, regardless of whether there are visible signs of impairment. This is essentially a “strict liability standard” in which BAC alone is sufficient to support a conviction.
• DUI Less Safe: A person can be charged with DUI under Georgia Code Section 40-6-391(a)(1) if he or she is deemed less safe to drive because of alcohol or drug consumption, even with a BAC below the legal limit, or when no chemical test is conducted. In other words, the state does not require a BAC reading of 0.08% or higher to prosecute a DUI.

How Is “Less Safe to Drive” Determined in Georgia?

Under the DUI Less Safe statute, law enforcement and prosecutors do not have to rely solely on chemical test results. They can focus instead on a driver’s behavior, appearance, and performance in field sobriety tests. The following factors could lead to a DUI Less Safe charge:

• Erratic driving behavior: Speeding, swerving, braking suddenly, or failing to obey traffic signals can be seen as evidence of impairment, even with a BAC below 0.08%.
• Physical signs of impairment: Slurred speech, unsteady movements, red or watery eyes, or the smell of alcohol on the breath could lead police officers to conclude that a driver is impaired.
• Admission of drinking: When a driver admits to having had one or two drinks, that admission can be used against them.
• Poor performance in field sobriety tests: Failing or performing poorly on tests such as the one-leg stand, the walk and turn, or the horizontal gaze nystagmus (HGN) can support a charge of DUI Less Safe.
• Refusal of a chemical test: Refusing to submit to a breath, blood, or urine test can strengthen the state’s case. Under implied consent laws outlined in the Georgia Code Section 40-5-67.1, refusal to submit to chemical testing can lead to automatic driver’s license suspension and may be introduced as evidence of guilt. 

What Are the Challenges of Defending Against DUI Less Safe Charges?

Unlike DUI per se cases, which rely on a clear numerical BAC reading, DUI Less Safe charges are inherently subjective. They depend heavily on the observations and testimony of law enforcement officers, which introduces the following challenges:

• Subjective evidence: Signs of impairment, such as red eyes or slurred speech, can be caused by non-alcohol-related factors, such as allergies or stress. Nevertheless, these signs can be presented as evidence of impairment. 
• Officer discretion: In many cases, the decision to arrest a person for DUI Less Safe hinges on the officer’s interpretation of the driver’s behavior and physical appearance. Improper training or bias can lead to questionable arrests.
• Field sobriety testing: Notoriously unreliable field sobriety tests can be affected by a range of factors unrelated to alcohol consumption, including medical conditions, fatigue, and uneven road surfaces.

What Are the Defenses Against DUI Charges with a BAC Below 0.08%?

Although they are more subjective, DUI-less safe charges are not insurmountable. Our skilled Atlanta DUI defense attorneys can challenge the evidence and circumstances surrounding the arrest. The following are common defenses against DUI Less Safe charges in Georgia:

• Arguing lack of probable cause: If the police officer did not have reasonable suspicion to pull you over in the first place or lacked probable cause to make the arrest, the case could be dismissed.
• Questioning the officer’s observations: Questions directed at the arresting officer can help determine whether signs of impairment were genuinely caused by alcohol or may have another explanation.
• Challenging field sobriety tests: It is well known that these tests are not foolproof. The officer may not have administered the tests properly. Poor lighting, uneven pavement, medical conditions, and nervousness could affect performance. Your attorney may argue that the results are unreliable and should be excluded.
• Cross-examining the officer: Our experienced DUI defense attorneys can expose inaccuracies or inconsistencies in the law enforcement officer’s testimony during cross-examination.
• Introducing alternative explanations: Your DUI defense lawyer may present evidence that any erratic driving behavior was due to mechanical issues or other non-alcohol-related causes. 

How Severe Are the Penalties for DUI Less Safe in Georgia?

Some drivers with a BAC below 0.08% assume that DUI Less Safe is not a serious charge. Nothing could be further from the truth. Whether it is for DUI per se or DUI Less Safe, a conviction can have serious consequences, including potential jail time, fines, driver’s license suspension, a mandatory DUI alcohol or drug use program, higher car insurance premiums, and a permanent criminal record. If you have been charged with DUI in Georgia, your best chance of obtaining a favorable outcome is to have an experienced DUI defense attorney by your side.

At Mones Law, P.C., we are experienced, aggressive, and trial-focused lawyers with a successful track record. We do not shy away from a challenge and will meet our opposition confidently, inside or outside the courtroom. Our firm offers a free 60-minute consultation. Contact us at 678-616-2647 if you face DUI charges with a BAC below 0.08%.