DUI “Less Safe” in Georgia: O.C.G.A. § 40-6-391(a)(1) Explained
A great many people believe that if their breath or blood test came back under 0.08 — or if they refused testing altogether — they cannot be convicted of DUI. In Georgia, that is simply wrong. The DUI “Less Safe” charge under O.C.G.A. § 40-6-391(a)(1) lets a prosecutor convict you of DUI with no chemical test number at all. Understanding how this charge works is the first step in defeating it.
What “Less Safe” Means Under Georgia Law
Georgia’s DUI statute, O.C.G.A. § 40-6-391, actually describes several different ways to commit the same crime of driving under the influence. The first of them — subsection (a)(1) — is what attorneys and judges call a “Less Safe” DUI. The statute provides:
“A person shall not drive or be in actual physical control of any moving vehicle while… under the influence of alcohol to the extent that it is less safe for the person to drive.”
— O.C.G.A. § 40-6-391(a)(1)
Read that language carefully, because every word matters. The charge does not say “drive with a blood alcohol concentration of 0.08 or more.” It says nothing about a number at all. Instead, it makes it a crime to drive while alcohol has impaired you to the extent that it is less safe for you to be behind the wheel.
That is a crucial point that surprises most people: in Georgia, it is not illegal to drink and drive. An adult can lawfully have a glass of wine with dinner and drive home. What is illegal is driving after that alcohol has made you a less safe driver. The Less Safe charge targets impairment — not consumption, and not a number on a machine.
Less Safe vs. DUI Per Se — The Critical Difference
The other common way to charge DUI in Georgia is the “per se” offense under O.C.G.A. § 40-6-391(a)(5). “Per se” is Latin for “by itself” — the number, by itself, is the violation. If a valid chemical test shows your blood alcohol concentration (BAC) was 0.08 grams or more within three hours of driving, the State does not have to prove you were a bad driver. The number alone is the crime.
Less Safe and per se are two different methods of proving the very same DUI offense. Prosecutors almost always charge them together, in the alternative — one citation for (a)(1) Less Safe and one for (a)(5) per se — and let the jury decide. You can be convicted on either theory, but because they are the same underlying crime, you can only be sentenced once; the counts merge.
| Feature | DUI Less Safe — § 40-6-391(a)(1) | DUI Per Se — § 40-6-391(a)(5) |
|---|---|---|
| What the State must prove | Alcohol made you a less safe driver | A specific BAC at or above the legal limit |
| Chemical test required? | No — not needed at all | Yes — a valid breath, blood or urine test |
| Legal threshold | Any degree of impairment that makes driving less safe | 0.08 (adult), 0.04 (commercial), 0.02 (under 21) |
| Main evidence | Driving, officer observations, field sobriety tests, admissions | The numeric test result |
| Can a refusal still be prosecuted? | Yes — refusals are usually charged as Less Safe | Not as per se without a number; refiled as Less Safe |
| Where the case is won or lost | The officer’s credibility and the bodycam | The science — calibration, procedure, timing |
The headline takeaway: a low test result, or no test at all, does not end a DUI case in Georgia. It simply pushes the prosecution onto the Less Safe track.
The Four “Less Safe” Charges in Georgia
The “less safe” standard is not limited to alcohol. O.C.G.A. § 40-6-391 contains four separate less-safe provisions, each covering a different substance:
- § 40-6-391(a)(1) — Alcohol Less Safe. Driving while alcohol makes it less safe for you to drive. This is the most common DUI Less Safe charge.
- § 40-6-391(a)(2) — Drugs Less Safe. Driving while under the influence of any drug — illegal, over-the-counter, or lawfully prescribed — to the extent it is less safe for you to drive.
- § 40-6-391(a)(3) — Inhalants Less Safe. Driving while under the intentional influence of any glue, aerosol, or other toxic vapor to the extent it is less safe for you to drive.
- § 40-6-391(a)(4) — Combined Influence Less Safe. Driving while under the combined influence of two or more of the substances above to the extent it is less safe for you to drive.
The drug provision deserves special attention. Georgia has no broad per se limit for most drugs the way it does for alcohol, and there is no per se limit for medication you were prescribed and took correctly. That means drug-related DUIs are overwhelmingly charged as Less Safe — the State must convince a jury that the substance impaired your driving, even if your doctor told you to take it. If you take prescription medication, see our pages on impaired driving defense and the full range of Georgia DUI charges.
What the State Must Prove in a Less Safe Case
To convict you of an alcohol Less Safe DUI, the prosecutor must prove three elements beyond a reasonable doubt:
- Driving or actual physical control. You were driving, or in “actual physical control” of, a moving vehicle. This element alone can be contested — for example, where someone was found sleeping in a parked car.
- Under the influence of alcohol. You had consumed alcohol and it was affecting you.
- To the extent it was “less safe.” This is the element that wins and loses Less Safe cases. The State must prove the alcohol had an impairing effect that made you a less safe driver. Georgia courts have been clear that simply proving a person had been drinking — or even that they were “under the influence” — is not enough. The prosecution must connect the alcohol to a genuine, demonstrated reduction in safe driving ability.
That third element is the soft underbelly of the Less Safe charge. A nervous, tired driver who had two beers is not automatically a “less safe” driver. The State has to prove the impairment — and it has to do so without the comfort of a number.
What Evidence Is Used in a Less Safe DUI
Because there is no scientific number to point to, a Less Safe prosecution is built almost entirely from the arresting officer’s testimony and the things the officer wrote in the report. Typical evidence includes:
- The driving itself — speeding, weaving, a wide turn, a collision, or the reason for the original stop.
- Officer observations — the “odor of an alcoholic beverage,” bloodshot or watery eyes, slurred speech, fumbling for documents, an unsteady walk.
- Field sobriety tests — the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn, and One-Leg Stand. See our dedicated page on how field sobriety tests are challenged.
- Your own statements — admissions like “I had a couple of beers,” or answers to the officer’s questions.
- A preliminary breath test (PBT) — the small roadside device. In Georgia a PBT result is admissible only to show the presence of alcohol (positive or negative), never as a specific number.
- The officer’s ultimate opinion — the report’s conclusion that “based on my training and experience, I formed the opinion the driver was a less safe driver.”
Every single one of those items is subjective, and every one of them can be tested against the body camera and dash camera footage. To understand exactly where these reports break down, walk through our interactive guide on how to read a DUI arrest report.
Penalties for a Less Safe DUI Conviction
Here is the point that most clients do not expect: a Less Safe DUI is punished exactly the same as a per se DUI. It is not a “lesser” charge. It is the identical offense under the identical statute — only the method of proof is different. A first Less Safe DUI conviction within ten years is a misdemeanor that generally carries:
- Up to 12 months in jail, with a 24-hour mandatory minimum that cannot be probated;
- A fine of $300 to $1,000, before statutory surcharges that often roughly double the amount actually owed;
- A minimum of 40 hours of community service;
- 12 months of probation, less any time served in jail;
- A clinical alcohol and drug evaluation and any treatment it recommends;
- Completion of a DUI Risk Reduction Program (“DUI school”);
- A driver’s license suspension;
- Attendance at a MADD Victim Impact Panel.
The consequences escalate steeply for repeat offenses. A second DUI within ten years brings a longer mandatory jail term and an ignition interlock requirement; a third is a “high and aggravated” misdemeanor; and a fourth DUI within ten years is a felony. None of that changes based on whether the case was proven as Less Safe or per se — a DUI is a DUI.
Less Safe DUI and Your Driver’s License
A Less Safe case can threaten your license through two completely separate tracks, and it is vital not to confuse them:
- The Administrative License Suspension (ALS). This is a civil suspension handled by the Department of Driver Services that happens before any conviction. It is triggered only if you refused the State’s chemical test or registered 0.08 or more. You have a short window — generally 30 days — to request an ALS hearing or to install an Ignition Interlock Device Permit, or your license is suspended automatically. In a pure Less Safe case with no test and no refusal, this pre-conviction ALS may not apply at all.
- The court conviction suspension. Entirely separate from ALS, a DUI conviction in court triggers its own license suspension — and this applies whether you were convicted as Less Safe or per se.
Because the ALS deadline is so short and so easy to miss, anyone arrested for DUI should treat the calendar as an emergency. Learn more about protecting your driving privileges on our pages covering administrative license suspension and how to save your license after a DUI arrest.
Why Less Safe Cases Are Often Defensible
It can feel frightening that the State can pursue a DUI without a number. But in practice, the absence of a number frequently works in the defendant’s favor. A Less Safe case is, at its core, a credibility contest — and credibility can be attacked. Consider:
- The whole case rests on one officer’s subjective opinion. “Less safe” is not measured by any instrument. If the officer’s opinion can be undermined, the case can collapse.
- Body camera footage routinely contradicts the report. Reports describe “slurred speech” and an “unsteady” driver; the video often shows a calm person speaking clearly. Once the jury catches one exaggeration, every other claim is suspect.
- The officer’s observations have innocent explanations. Bloodshot eyes come from fatigue, allergies, or contact lenses. “Odor of alcohol” says nothing about quantity or timing — alcohol itself is odorless. Nervousness mimics impairment.
- Field sobriety tests are easy to administer incorrectly. The HGN, Walk-and-Turn, and One-Leg Stand each have strict NHTSA protocols. A single deviation — wrong instructions, uneven pavement, bad footwear, an untreated injury — can be grounds to exclude the test entirely.
- An unlawful stop ends everything. If the traffic stop itself was not supported by reasonable suspicion, a motion to suppress can throw out every observation that followed.
How Attorney Richard Blevins Defends a Less Safe DUI
Richard Blevins is a former Cobb County prosecutor — a former Assistant District Attorney and Assistant Solicitor-General — and a former police officer. He has stood on the other side of these cases and knows precisely how a Less Safe DUI is built, which means he knows where it comes apart. In a Less Safe case, his defense typically attacks on several fronts:
- The stop. Was there a lawful, articulable reason to pull you over in the first place? “Weaving within your own lane,” for example, is not a violation in Georgia.
- The bodycam, frame by frame. The footage is compared line by line against what the officer wrote, exposing every exaggeration and omission.
- The field sobriety tests. Each test is checked against the NHTSA standardized protocol — instruction, demonstration, conditions, and scoring — for administration errors that justify exclusion.
- Alternative explanations. Fatigue, anxiety, medical conditions, footwear, road conditions, and language all provide innocent reasons for what the officer called “impairment.”
- The missing link. Most importantly, holding the State to its burden on that third element — demanding proof that alcohol actually made you a less safe driver, not merely that you had been drinking.
The goal in every case is the same: dismissal, a reduction to a non-DUI offense such as reckless driving, or an acquittal at trial. Our case results page shows outcomes from cases just like these.
Frequently Asked Questions
What does DUI “Less Safe” mean in Georgia?
DUI “Less Safe” is the charge under O.C.G.A. § 40-6-391(a)(1) that makes it illegal to drive while under the influence of alcohol to the extent that it is less safe for that person to drive. It does not depend on a specific blood alcohol number. Instead, the State must prove that alcohol actually impaired the driver’s ability to operate the vehicle safely. A person can be convicted of Less Safe DUI with a BAC under 0.08 — or with no chemical test at all.
What is the difference between DUI Less Safe and DUI Per Se in Georgia?
DUI Per Se, under O.C.G.A. § 40-6-391(a)(5), is proven with a number: a chemical test showing a BAC of 0.08 or more (0.04 for commercial drivers, 0.02 for drivers under 21) within three hours of driving. DUI Less Safe, under § 40-6-391(a)(1), is proven with evidence of impairment — driving behavior, the officer’s observations, field sobriety tests and admissions — and requires no chemical test result at all. The two are usually charged together in the alternative, but a defendant can only be sentenced on one of them.
Can I be charged with DUI in Georgia if my BAC was under 0.08?
Yes. A BAC below 0.08 does not protect you from a DUI Less Safe charge. Under O.C.G.A. § 40-6-391(b), a chemical test below 0.08 may be considered along with other competent evidence in deciding whether the driver was a less safe driver. If the State has evidence of impairment — bad driving, failed field sobriety tests, slurred speech — it can pursue a Less Safe DUI even with a low or no test result.
Can I be convicted of DUI Less Safe if I refused the breath or blood test?
Yes. A refusal does not end the case — it often becomes a Less Safe prosecution because there is no number to rely on. The State then builds its case entirely on the officer’s observations, your driving, and field sobriety tests. Georgia law on how a refusal can be used as evidence has been significantly limited by the Olevik and Elliott decisions, particularly for breath tests, which is one reason an experienced DUI attorney is essential in a refusal case.
What are the penalties for a Less Safe DUI conviction in Georgia?
A Less Safe DUI carries the exact same penalties as a Per Se DUI, because it is the same offense under the same statute. A first conviction is a misdemeanor punishable by up to 12 months in jail (with a 24-hour mandatory minimum), a fine of $300 to $1,000 plus surcharges, at least 40 hours of community service, 12 months of probation, a clinical alcohol and drug evaluation, completion of a DUI Risk Reduction Program, a license suspension, and usually a MADD Victim Impact Panel. Penalties increase sharply for second and third convictions within ten years, and a fourth within ten years is a felony.
Is a Less Safe DUI easier or harder to fight than a Per Se DUI?
A Less Safe DUI is often more defensible because there is no scientific number — the case rests on the arresting officer’s subjective opinion that alcohol made you a “less safe” driver. That opinion can be challenged with body camera footage, the actual driving record, alternative explanations for the officer’s observations, and proof that field sobriety tests were administered improperly. The State still must prove every element beyond a reasonable doubt, and a Less Safe case gives a skilled defense attorney many credibility-based avenues to create that doubt.
Does a Less Safe DUI apply to drugs and prescription medication?
Yes. The “less safe” standard also covers drugs under O.C.G.A. § 40-6-391(a)(2), toxic vapors and inhalants under (a)(3), and a combination of substances under (a)(4). Because Georgia has no broadly applicable per se limit for most drugs or for lawfully prescribed medication, drug-related DUIs are very frequently charged as Less Safe — the State must prove the substance rendered the driver less safe, even if the medication was taken exactly as prescribed.
Will a Less Safe DUI suspend my driver’s license?
It can, through two separate tracks. A DUI conviction in court triggers a license suspension regardless of whether it was a Less Safe or Per Se charge. Separately, an Administrative License Suspension (ALS) is triggered before any conviction if you refused testing or registered 0.08 or more. In a pure Less Safe case with no test and no refusal, the pre-conviction ALS may not apply — but a conviction itself still carries a suspension. Deadlines here are short: you generally have only 30 days to request an ALS hearing or install an Ignition Interlock Device Permit.
What should I do if I have been charged with DUI Less Safe in Atlanta?
Act quickly. Calendar the 30-day ALS deadline if there was a refusal or a test, request a copy of the arrest report and any body camera footage, and do not discuss the facts with anyone but your attorney. Then contact an experienced Georgia DUI lawyer right away. Because a Less Safe case turns on the officer’s testimony, early review of the bodycam and the field sobriety test administration is often where the case is won. Call Attorney Richard Blevins at (770) 419-1945 for a free, confidential evaluation.
Charged With DUI Less Safe? Talk to Richard Blevins.
A Less Safe DUI is built on opinion, not science — and opinion can be challenged. If you have been arrested for DUI “Less Safe” in Atlanta, Sandy Springs, or anywhere in metro Georgia, the sooner your case is reviewed, the more options you have. Body camera footage, field sobriety test errors, and a weak link between drinking and actual impairment are frequently where these cases are won.
Call (770) 419-1945 for a free, confidential case evaluation — available 24/7 for DUI emergencies. You can also use the free case evaluation form in the sidebar to send your case details directly to the office.
This page is general legal information about Georgia law, not legal advice, and does not create an attorney-client relationship. DUI law changes and every case is different — consult a licensed Georgia DUI attorney about your specific situation.
