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Charged with DUI less-safe in Chatham County, Georgia

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:

  1. Per­son was dri­ving or had actual phys­i­cal con­trol of the vehicle;
  2. Per­son was 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
  3. Per­son was less safe to drive as a result of alcohol.

Notes:

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 arrest­ing officer’s deci­sion to make a cus­to­dial arrest 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 the driver’s alco­hol level at the time of driving.
  • No Prob­a­ble Cause to Arrest
  • I may side­track the State’s DUI case if I show that there was no prob­a­ble cause for stop­ping this girl. See State v. Batty, 259 Ga.App. 431 (2003)