There is No Legal Limit in Georgia: An examination of Georgia's DUI-Less Safe statute.
If you were to ask one hundred Georgia drivers, "What is the legal limit in Georgia," over 98% will immediately recognize that your question is referring to Georgia DUI law, and most will confidently respond: ".08." Unfortunately, the vast majority of Georgia drivers are grossly misinformed when it comes to Georgia DUI law. Most people believe that the .08 figure is a true "limit," similar to a speed limit, and that they can not be charged with DUI unless their blood alcohol concentration ("BAC") exceeds this "legal limit." They could not be more wrong. DUI-Per Se The widely held belief that there is a "legal limit" for BAC in Georgia comes from O.C.G.A. 40-6-391(a)(5) which provides in relevant part: (a) A person shall not drive or be in actual physical control of any moving vehicle while: (5) the person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol This statute is known as the "DUI-Per Se" statute, and it is only one of several ways that a person can be convicted of DUI in Georgia. Basically, the statute establishes a threshold, above which the State need not prove that a person was actually impaired by alcohol. It essentially creates a conclusive presumption that anyone with a BAC above .08 MUST be impaired. Thus, to charge and convict a person with DUI-Per Se, the state need only prove that (1) the person's blood alcohol content was .08 or higher, (2) that the person was in actual physical control of a motor vehicle within three hours before the BAC test, and (3) that the person's BAC was elevated as a result of alcohol consumed prior to driving. It is important to note that the .08 figure is a "threshold" rather than a "limit." The word "limit" implies a maximum. Just as the term "speed limit" communicates that it is acceptable to drive a vehicle at any speed that is less than the "limit," the term "legal limit" when used in reference to BAC implies that it is legally acceptable to drive as long as the "limit" is not exceeded. As you will see below, there is no "legal limit" for BAC in Georgia. DUI-Less Safe While O.C.G.A. 40-6-391(a)(5) creates a threshold above which the State need not prove impairment in order to convict a person of DUI, O.C.G.A. 40-6-391(a)(1) provides the State with a method for convicting a person of DUI where the person's BAC is less than .08. This statute is known as the DUI-Less Safe statute, and it provides in relevant part: (a) A person shall not drive or be in actual physical control of any moving vehicle while: (1) under the influence of alcohol to the extent that it is less safe for the person to drive. That's it, the entire statute. All the state has to prove to obtain a conviction for DUI Less Safe is: (1) that the person consumed alcohol, (2) that the person operated a vehicle after consuming alcohol, and (3) that the person was "less safe" to drive as a result of consuming alcohol. It doesn't matter if the only alcohol consumed was a dose of cough syrup, if the officer subjectively believes that the person was a less safe driver because of that shot of cough syrup, he can arrest the person for DUI. The broad discretion that is given to law enforcement officers in this situation is ripe for abuse. Many police officers, when confronted with a potential DUI-Less Safe situation, will err to the side of making an arrest. Making an arrest is the safer choice for a police officer. Think about it from the officer's perspective. If an officer chooses not to make an arrest, and the driver proceeds to cause an accident, the officer would come under heavy scrutiny for failing to make the arrest. Additionally, many officers, (particularly those working for counties or municipalities), recognize the financial benefit that is realized by their employers by each DUI conviction. At a time when many officers are facing furlough or lay off, it is in their best interest to maximize the revenue to the city or county for which they work. Finally, many officers justify making an arrest when they recognize that an arrest may not be appropriate by passing the buck to the prosecutor. I have personally had conversations with officers who have acknowledged that the facts of the case were weak, but they decided to make the arrest and "let the courts sort it out." Both DUI-Per Se and DUI-Less Safe cases can be successfully defended. Over the next few weeks I will be providing a few general rules to help Georgia drivers exercise their legal rights and maximize the probability of a successful defense to a DUI charge.