Anatomy of a DUI Less Safe Arrest

As we’ve previously discussed, there are two main alcohol based DUI charges in Georgia.  DUI Per Se is purely based on the level of alcohol in your blood.  DUI Less Safe is the one that many people don’t really know about.  DUI Less Safe simply means that the State believes you drove less safely than someone who did not have alcohol in their system.

In my years practicing law, both as a Prosecutor and Defense attorney, I have watched hundreds of DUI arrest videos.  In that time I’ve learned to establish which cases had good cause for arrest and which did not.  Following are some elements that would help the State in convicting someone of DUI less safe.   

1.    The officer needs to have had a reason to pull you over. Without a valid reason to pull you over, the State cannot use any of the evidence that they may have gathered against you. This probable cause may be something like speeding, failure to maintain lane, not stopping at a stop light, or even something as minor as a window tint violation.

2.    Once the officer comes into contact with you, there has to be a physical manifestation of drug or alcohol use.  Examples of this are slurring of words, bloodshot eyes or the smell of alcohol coming from your breath or body.

3.    When the officer asks you to exit the vehicle, he/she is looking for more clues such as continued smell of alcohol coming from your person, swaying, stumbling or lack of movement control.

4.    The officer then has the opportunity to perform Field Sobriety Tests.  These three voluntary tests look for additional evidence that you are under the influence of alcohol or drugs. They test balance, ability to follow directions and other clues. The three tests are:         

a.    HGN- (Horizontal Gaze Nystagmus)- This is the vision test, during which the officer is looking for nystagmus, or stuttering of the eyes while the officer has you track the movement of an object (usually a pen or his finger).  If the eyes stutter or bounce while tracking, that is an indicator that alcohol MIGHT be present in your system. There are some 30+ other reasons for nystagmus to be present, including physiological conditions, neurological conditions, congenital problems, dust, smoke sensitivity, etc.

b.    One Leg Stand- In this test, the officer instructs you to stand with your feet together, arms to your side and to raise one foot of your choice six inches, look directly at it and count off until the officer tells you to stop. This is a check for balance, coordination, and ability to follow directions. Negative results from this test can also be explained by many other factors, including physiological conditions, balance issues, inner-ear issues, nervousness, not just consumption of alcohol.

c.     Walk and Turn- The officer will instruct you to stand with your arms to your side and watch as he demonstrates walking heel to toe for nine steps, pivot on your left foot and walk back nine steps heel to toe.  This like the One Leg Stand is a divided attention test, to see if you can count steps, move your legs and follow directions. Again, like in the previous two tests there are many reasons people can “fail” these tests that have nothing to do with alcohol consumption.

Once the officer has made his or her observations the officer will then decide whether to place you under arrest for DUI Less Safe. Whether you decide to take the voluntary tests is up to you, however please note that you are being observed and that the tests have not been shown to establish that a person is under the influence to a 100% certainty, and any tests you perform can be used as evidence against you in your criminal case. 

If you have been arrested for DUI less safe and want to ensure that your rights are protected, hire a competent, experienced attorney to evaluate your case and help defend your rights.


Criminal defense attorney Brandon Rosenbloom represents clients who have been accused of crimes, including DUI, traffic violations, theft and drug possession.

A former Fulton County prosecutor, Brandon combines his training, experience and passion to serve those accused of crimes in the greater Atlanta area, including Cobb, DeKalb, Fulton and Gwinnett counties.