O.C.G.A. § 40-6-391(a)(1)
(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 to drive.
Elements of the charge:
The prosecutor must prove beyond a reasonable doubt:
- You were driving or had actual physical control of the vehicle;
- You were under the influence of alcohol (Mere presence of alcohol in blood is not enough, regardless of the level) (Circumstantial evidence that may be enough is appearance, odor, field sobriety, unsteady on feet, slurred speech); and
- You were less safe to drive because of alcohol.
When the State has no chemical (breath, blood, or urine) test results, proof of the other two elements (while under the influence of alcohol AND to the extent that it is less safe for the person to drive) may be seriously contested. William C. Head, The Georgia Trial Practice Manual, p. 7
Insufficient evidence of impairment
- I challenge at a pre-trial motion hearing, the police officer’s decision to arrest you for DUI.
- I challenge a required part of the prosecutor’s proof where the State of Georgia fails to bring in a qualified expert on alcohol metabolism to try to establish your alcohol level at the time of driving.
- I attack your case when there was no probable cause to arrest you for DUI.
- I may sidetrack the State’s DUI case if I show that there was no probable cause for stopping this you.