Less safe

A common misconception among laypersons is that in order to be convicted of driving under the influence you must have a blood alcohol content (BAC) of 0.08 grams or more. While this is one way of proving that a person was driving under the influence of an intoxicant, this is not always needed for a conviction. In fact, the legal standard to show that a person was in fact driving under the influence depends on two very vague words: "less safe." What does this mean? How do the courts measure this?

First, it is important to note that there are various types of charges to be brought against a person who has allegedly been driving under the influence. There is driving under the influence per se and driving under the influence less safe. The DUI per se refers to O.C.G.A. § 40-6-391(a)(5) while DUI less safe refers to O.C.G.A. § 40-6-391(a)(1). More specifically, a BAC of 0.08 grams or more is sufficient to show that a person was driving under the influence per se. A DUI less safe, contrastingly, can be demonstrated through circumstantial evidence and not necessarily the requisite BAC.

Just because one's BAC is lower than 0.08 grams does not mean they cannot be charged with a DUI. Parrish v. State, 456 S.E.2d 283, 284. In Parrish, the arrested driver's expert testified that his BAC should have been 0.055%, well below the legal limit. Id. However, the arresting officer observed the vehicle crossed the center line twice and smelled strong odor of alcohol coming from the vehicle when he approached the driver's window. Id. Additionally, when the officer administered field sobriety tests, the driver was unable to complete the test successfully, having been unable to correctly recite the alphabet, successfully walk and turn, and complete the index to nose test. Id. Although the driver's BAC was not above the legal limit, the breath test did detect alcohol. Id. Subsequently, this was sufficient evidence for a jury to convict the driver with a DUI less safe. Id.

While many assume that being under the BAC limit does not mean you can be charged with a DUI, this is an incorrect assumption. For more information concerning DUI contact a Douglasville attorney who specializes in criminal defense.

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