Without submitting to a chemical test, or if you tested below the legal limit of 0.08% BAC, you may wonder why you are being charged with drunk driving. After all, it is a violation to drive with a blood alcohol content (BAC) of 0.08% or higher, so how can it be a violation if you tested at 0.07% or lower, or submitted to no chemical test at all?
There are two kinds of drunk driving violations in Georgia. Driving with a BAC of 0.08% or higher is a per se DUI violation. However, it is also a violation if a driver under the influence of alcohol is driving less safe than they would otherwise have driven.
Less Safe vs. Per Se
Under Georgia law, it is unlawful for a person to drive a vehicle while under the influence of alcohol to the extent that it is less safe for them to drive. This is known as “less safe” DUI. There doesn't have to be any finding of the driver's actual blood alcohol level, as in a traditional per se DUI. Unfortunately, that can mean that even having a BAC below the legal limit, or with no test at all, the prosecutor can bring charges of drunk driving, based only on the police officer's observations.
Signs of Less Safe Driving
Even before getting pulled over, the police are gathering evidence that they will later use against a driver charged with a DUI. This begins with observing vehicles on the road, or even drivers before they get into their cars. Once they spot a car with some indications of an intoxicated or distracted driver, they will determine whether they have enough reason to pull the driver over. Evidence of an impaired driver can include, straddling the center lane, swerving or erratic driving, driving well under the speed limit, and abrupt turning or braking. These are the kinds of things that might alert the Atlanta Police to a possible DUI.
Once a driver is pulled over, the police will continue gathering evidence of intoxication. This includes trying to detect alcohol on the driver's breath, slurred talking, inconsistent statements about where the driver was going to or from. They will usually ask a driver if they've been drinking. It is not a good idea to lie to a police officer, which can be used against you. There is no need to admit to anything. You may feel pressured by the officer to answer all their questions, but any admission can be used against you later in court. The same goes for field sobriety tests, or a portable breathalyzer. There is no legal requirement for you to submit to these tests. If an officer is pushing a driver to do field sobriety tests, they may have already made up their mind to arrest the driver, and are just looking for more evidence to use against them.
Refusing a Breath or Blood Test
Through the implied consent laws in Georgia, a driver who is arrested for driving under the influence is required to submit to a chemical test. This could be a blood test or breath test, and will be used to determine the driver's BAC. There are penalties for refusing to submit to a chemical test, including a one-year driver's license suspension. In addition, refusing a chemical test does not mean that the prosecutor will not try and get a DUI conviction. Instead of a per se DUI violation, they will try and charge a “less safe” DUI, in part by using the police officer's report and observations.
Less Safe DUI Defense in Georgia
It may not seem fair that the state can try and convict you of drunk driving even if they don't have any evidence that you were above the legal limit. This is why you need to talk to an experienced, local DUI defense lawyer. I have spent my legal career focusing on defending people charged with “less safe” and per se DUI. This includes getting the same NHTSA field sobriety training as Atlanta Police, so I know what to look for. I have successfully challenged the police officer's observations and reports to get charges dismissed or reduced. Call my office today, so that we can discuss your case. I will make sure you get the fair treatment you deserve, to keep a DUI off your permanent record.