Defending DUI Less Safe Cases In Cobb County And In The Atlanta-Metropolitan Area
The Offense
Elements Of the Crime
Even if the State does not have any chemical tests indicating whether a person had any alcohol or drugs present in his system, they can still prosecute that individual under the DUI-Less Safe statute. Georgia Code 40-6-391(a)(1) defines that offense as:
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
What Does "Less Safe" Mean?
In addition, "less safe to drive" as used in the language of Georgia Code 40-6-391(a)(1) means that the person was under the influence of alcohol to the extent that is was less safe for the person to operate a motor vehicle that if he were not so affected. In other words, the driver has been so affected by the intoxicant that it adversely affected his operation of the motor vehicle. This is the level of proof which is required for a conviction. It is not enough that the evidence merely shows the defendant drank some alcoholic beverage and was affected to any extent whatsoever. Harper v. State, 91 Ga. App. 456 (1955).
A person who has consumed some alcohol may be under the influence of alcohol, but the law only criminalizes such if one drives and is so intoxicated or under the influence that one is less safe to drive. State v. Gray, 267 Ga. App. 753, (2004), citing Georgia Code 40-6-391(a)(1).
Evidence That Can Be Considered
They may consider anything in the evidence that they find relevant in deciding whether defendant was a less safe driver. Specifically as to consumption of alcohol, they may consider, among other factors, the smell or lack of smell of alcoholic beverages on the defendant's breath and/or his/her person and whether any test indicated the presence of alcohol in the defendant's system. As to whether the defendant was less safe to drive, they may consider the factors you deem relevant, including, but not limited to, the actual manner of driving the motor vehicle; the defendant's control of his/her mental and/or physical abilities; the defendant's demeanor; the physical condition of defendant; and any expert testimony.
In addition, in order for the State to prove that the accused was under the influence of alcohol and/or drugs to the extent he/she was “less safe to drive”, the State must prove that the accused was “incapable of driving safely.” State v. Kachwalla, 561 S.E.2d 403 (2002). Cargile v. State, 244 Ga. 871 (1979).
What If I Had Been Drinking Or I Smell Like Alcohol?
Merely showing that the defendant had been drinking or that there was the smell of alcohol on the defendant's breath or person without proof of the manner of driving or the ability to drive is insufficient to prove that the defendant was guilty of driving under the influence of alcohol.
Intent
To prove DUI, the State need not prove that the defendant intended to commit the offense of driving under the influence, but the State must prove the defendant's condition of being under the influence of alcohol to the extent of impairment and, while in this condition, the intent to drive. This general intent may or may not be inferred from the conduct of the accused and other circumstances.
A Person's Individual Response To Alcohol
Impaired driving ability depends solely upon an individual's response to alcohol. Because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, may not support an inference that the driver is impaired by alcohol. Baird v. State, 260 Ga. Appl. 661 (2003).
Proof Of Alcohol Consumption, By Itself, Is Not A Violation Of The Law
It is not contrary to law for a driver merely to operate a motor vehicle after consuming alcohol. It is only unlawful to operate a motor vehicle while under the influence of alcohol to the extent that is was less safe for the person to drive. Munda v. State, 172 Ga. App. 857 (1984).
DUI Less Safe And Drugs
It is important to note that the State can prosecute people for DUI-Less Safe under theories other than alcohol intoxication. Pursuant to Georgia Code 40-6-391(a)(2) through (a)(4), in addition to alcohol, a person can be prosecuted for driving or being in actual physical control of a moving vehicle for being:
- Under the influence of any drug to the extent that it is less safe for the person to drive;
- Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive; and
- Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive.
What If I Have A Prescription For the Drugs Found In My System? Can I Still Be Arrested For DUI?
Yes. The focus will be on if the drugs (or alcohol) affected the person to an extent that it made them incapable of driving safely. Georgia Code 40-6-391(b) states:
The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.
Potential Penalties
The potential penalties for a DUI Less Safe offense are as follows:
- A First Conviction Within 10 Years Is A Misdemeanor: it is punishable by a fine of not less than $300.00 and not more than $1,000.00, and a period of imprisonment of not fewer than ten days nor more than 12 months; however, this period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated.
- A 2nd Conviction Within 10 Years Is A Misdemeanor: it is punishable by a fine of not less than $600.00 and not more than $1,000.00, and a period of imprisonment of not fewer than 90 days and not more than 12 months; however, the judge shall probate at least a portion of such term of imprisonment, provided, however, that the offender shall be required to serve not fewer than 72 hours of actual incarceration.
- A 3rd Conviction Within 10 Years Is A High And Aggravated Misdemeanor: it is punishable by a fine of not less than $1,000.00 and not more than $5,000.00, and a mandatory period of imprisonment of not fewer than 120 days and not more than 12 months; however, the judge shall probate at least a portion of such term of imprisonment, provided, however, that the offender shall be required to serve not fewer than 15 days of actual incarceration.
- A 4th Conviction Within 10 Years Is A Felony: it is punishable by a fine of not less than $1,000.00 and not more than $5,000.00, and a period of imprisonment of not less than one year and not more than five years; however, the judge may suspend, stay, or probate all but 90 days of any term of imprisonment imposed under this paragraph.