Practically speaking, in any DUI case the prosecution must prove that the defendant was “driving or was in actual physical control of the vehicle.” To prove a “less safe” DUI under O.C.G.A. § 40-6-391(a)(1), the prosecution must also show that the defendant was “under the influence of alcohol.” Under O.C.G.A. § 40-6-391(a)(1), the mere presence of alcohol in the bloodstream, however, is not dispositive on this charge regardless of the level of alcohol concentration. Evans v. State, 253 Ga. App. 71, 558 S.E.2d 51 (2001). In fact, the breath test results have been found to be “merely cumulative” of other evidence such as manifestations of excessive alcohol usage, odor of alcohol, and field sobriety results. Trotter v. State, 256 Ga. App. 330, 568 S.E.2d 571 (2002). Therefore, the prosecution has an additional burden of proving that the driver was “less safe” to drive as a result of the presence of alcohol. Stepic v. State, 226 Ga. App. 734, 487 S.E.2d 643 (1997)Also see Allen v. State, 257 Ga. App. 246, 570 S.E.2d 683 (2002), where the Court of Appeals found insufficient evidence to convict the defendant of the “less safe” charge based solely on officer testimony that the defendant “had been drinking” and the State introduced evidence of a breath score of 0.079. While the manner of driving may be used as circumstantial evidence to show the driver was “less safe,” Walczak v. State, 259 Ga. App. 140, 575 S.E.2d 906 (2003), many DUI cases involve road block stops or a prior collision that can be blamed on other factors, such as bad weather, mechanical failure or passenger distraction.

Ill-advised admissions or trial testimony can virtually guarantee a conviction for many accused impaired drivers. The Court of Appeals has held that the defendant was not entitled to a jury charge stating that a defense to DUI is that the “person's manner of driving was not unsafe” where the defendant admitted that he violated O.C.G.A. § 40-6-391(a)(1) and was too drunk to remember what happened. Cunningham v. State, 221 Ga. App. 341, 471 S.E.2d 273 (1996).

Whenever the State has no chemical (breath, blood or urine) test results, proof of the final two elements of O.C.G.A. § 40-6-39(a)(1) [while under the influence of alcohol AND to the extent that it is less safe for the person to drive] can be seriously contested. In this scenario, the State will generally try to use a combination of driving conduct, field tests, and physical observations or "manifestations" (i.e., odor of alcohol, unsteady on feet, slurred speech, etc.) to make out its case.

The arresting officer in these cases will generally testify that it is his or her “opinion” that this combination of factors shows the defendant was a “less safe” driver due to the influence of alcohol. Keep in mind that a refusal to take a breath test does not create the inference that the driver is impaired to the point of driving less safe and the State's claim to the jury of such an inference is reversible error. Baird v. State, 260 Ga. App. 661, 580 S.E.2d 650 (2003). However, the jury can be instructed that a refusal to submit to a chemical test may infer that the defendant's test result would “show the presence of” alcohol. Bravo v. State, 249 Ga. App. 433, 548 S.E.2d 129 (2001). Additionally, a chemical test erroneously admitted has been held to be “harmless error” and irrelevant to a less safe case. Camp v. State, 259 Ga. App. 228, 576 S.E.2d 610 (2003) (when other compelling evidence of impairment exists).

In a “pre-July, 2001” DUI roadblock case, the DUI per se UTC was dropped prior to the jury trial beginning since the blood test came back at 0.09 (when the legal limit was 0.10). So the trial proceeded on the “less-safe” DUI count under O.C.G.A. § 40-6-391(a)(1). During jury deliberations, the jurors asked the trial judge which legal limit applied, 0.08 or 0.10. The judge refused to directly answer the question because the case was a “less safe” DUI, not a per secase, and he feared that the jurors would get confused about the distinction. He merely recharged them on “less-safe” and told them not to speculate about the BAC legal limit, since that was another type of DUI than what was charged here. The conviction was affirmed. Holloman v. State, 257 Ga. App. 490, 571 S.E.2d 486 (2002). This case highlights the important role of defense counsel in crafting targeted jury instructions.

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