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.
