Although exceedingly rare, the appellate courts in Georgia have occasionally overturned a conviction on a “less safe” DUI, as codified in O.C.G.A. § 40-6-391(a)(1). A quick summary of some key cases will show the level of “lack of proof” that has been required:
In Allen v. State, 257 Ga. App. 246, 570 S.E.2d 683 (2002), a conviction of Mr. Allen, (the driver) was overturned when the evidence admitted at trial consisted of: (1) the smell of alcohol; (2) a “positive” Alco-sensor result; (3) the trooper saying he “could tell he had been drinking”; (4) Intoxilyzer readings of 0.079 and 0.078. The Court of Appeals seemed to be troubled by the lack of traditional “manifestations of impairment” and the fact that no evidentiary alcohol test revealed a level associated with “an inference of impairment.” Although the trooper gave his opinion that Allen was “less safe” to drive, this opinion was not supported by competent evidence. In addition, because the officer did not see the vehicle while it was driving and the Prosecutor had no other witnesses as to the manner of driving, the mere fact that a wreck had occurred did not suffice.
In Ricks v. State, 255 Ga. App. 188, 564 S.E.2d 793 (2002), the defendant was stopped for speeding in Clayton County by a DUI task force officer. After first denying consumption of any alcohol, Ricks admitted “to drinking one beer.” An Alco-sensor was the only field evaluation, and it was “positive” for alcohol. Arrest followed immediately, with no more field tests being offered. At the station, Ricks took an Intoxilyzer test that revealed 0.052 and 0.055. Despite being under age 21, the State proceeded only on the “less safe” DUI case. At trial, the typical manifestations of an impaired driver were lacking: no unsteadiness on his feet, no slurred speech, no difficulty exiting the vehicle, no belligerence, and no inability to understand instructions. In fact, outside of the speeding, the Alco-sensor, the smell of alcohol, the reluctant admission of drinking, and “being under 21,” only eyes that were a “little bit red and glassy” constituted the officer's “proof” of impairment. Accord, Peck v. State, 245 Ga. App. 599, 538 S.E.2d 505 (2000) (no testimony of defendant's manner of driving or ability to drive); Hollis v. State, 234 Ga. App. 269, 505 S.E.2d 837 (1998) (Evidence of atrocious driving, but no evidence it was caused by alcohol impairment); Davis v. State, 206 Ga. App. 647, 426 S.E.2d 267 (1992) (wreck by teenager who was observed drinking “from a beer can,” he testified it was water, and his boast to teenage friends of “smoking marijuana” earlier were not supported by negative lab test results from blood drawn 3 hours later); Bell v. State, 197 Ga. App. 175, 398 S.E.2d 29 (1990) (smell of alcohol on breath is insufficient without more corroborating evidence of impairment); State v. Speir, 189 Ga. App. 254, 375 S.E.2d 298 (1988) (defendant not present at scene when police arrived, but was first observed at hospital); Groom v. State, 187 Ga. App. 398, 370 S.E.2d 643 (1988) (quantity of beer alone without proof of size and time span of consumption is insufficient). Contact a Douglas County criminal defense lawyer if there are doubts about your impoairment on a DUI.