Alot of my Columbus, Georgia friends are suddenly asking, “why was I arrested for DUI Less Safe.” Why are we seeing so many persons arrested for DUI less safe? The answer is, first, it is nothing new to be arrested for DUI Less Safe. For many years Georgia law has given the arresting officer the option of making an arrest for DUI based upon either:
- (1) the driver’s actual blood alcohol concentration (BAC) from a blood/breath/urine test; or,
- (2) the officer’s observation based upon the overall circumstances that the driver is under the influence of alcohol (or drugs) to the extent he or she is less safe to drive. This second prong leads to being arrested for DUI Less Safe in Georgia.
The officer determines whether it is “less safe” for the person to drive, or if this person is incapable of driving safely.
There are some basic reasons why an Officer may do so, but the choice usually will depend upon whether the officer obtained a valid blood-alcohol test (BAC) on the driver when the officer made the arrest. For a variety of reasons, the driver’s BAC may be unknown on the night he/she was arrested for DUI Less Safe. For example, if the driver refuses the implied consent test of his/her blood, breath or urine, then usually the officer will not attempt a forced blood draw or other test. The U. S. Supreme Court recently held that generally speaking law enforcement officers are not allowed to take a forced blood draw if the driver refuses to consent to such a test. But Georgia law still provides the officer legal grounds for making an arrest on the grounds you are “less safe” to drive.
Arrested for DUI less safe is often misunderstood as a lesser offense of DUI in Georgia. It is not. Georgia does not recognize a lessor offense for DUI. Arrested for DUI less safe means the same as if arrested for DUI per se (over the legal limit). The punishment and penalties are nearly identical. What differs is the evidence and proof required from the State to convict you of DUI. Arrested for DUI less safe means the State does not have a test of your BAC admissible in the trial of your case, so the State looks to prove your guilt by showing your driving skills and conduct behind the wheel was less safe than if you had not been so affected by the influence of alcohol. For example, maybe you were pulled over for improper lane change, speeding, improper signal, etc., and the State will argue your driving was unsafe. However, the mere presence of alcohol in your body is not enough, alone, to prove the State’s case. A qualified, experienced DUI lawyer knows how to beat the State’s case under these circumstances.
BUT WHY SO MANY LATELY? Two reasons; first, the local law enforcement have stopped using the Intox 9000 breathylizer at the jail in favor of a blood test. Effective December 31, 2015, the Intoxilyzer 5000 was replaced as the permitted machine for testing breath under Georgia Bureau of Investigation rules effective, and until its replacement fully arrived, a blood test is the preferred method of law enforcement in the Chattahoochee area. More recently, most law enforcement jurisdictions in Georgia and Alabama have the new Intox 9000, and officers are becoming more comfortable using it. Second, since blood test results are generally not available at the time of arrest, officers do not know if the driver’s BAC is over the legal limit, so the driver is charged under the “less safe” prong of the DUI criminal statute.
And finally, the trend for several years in this area indicates the Georgia State Patrol Nighthawks DUI task force tends to prefer asking for and obtaining a blood test to support the arrest. The results of the blood test is not available for months after the night of the arrest, so the officer must charge you with DUI less safe under the controlling law. If the blood test later reveals a BAC over the legal limit, then the prosecutor can charge you under either or both prongs under the statute. However, an experienced DUI attorney knows the difference and whether the prosecutor can rely on both or only one and the strength of the case under either choice.
If you have been arrested for DUI in Columbus, Georgia, Call Ted Morgan Law to discuss your DUI arrest today! We represent those accused of DUI in Talbotton, Woodland, Manchester, Richland, Hamilton, Pine Mountain, and Harris, Talbot, Muscogee, Chattahoochee, Meriwether, and Stewart Counties in Georgia, and Russell and Lee Counties in Alabama.