One of the most asked questions by my DUI clients is “Why did I receive two citations for DUI when I was only arrested once?” On its face, this does not make sense. However, in Georgia, there are generally two ways a driver can be in violation of driving under the influence. For the purposes of this column, I am going to use a broad example of a DUI arrest involving only alcohol. 1. DUI – Less Safe
In almost every DUI case, the driver will be charged with DUI – less safe. This simply means that the officer believes that the driver was operating a motor vehicle while that person was less safe to do so. In this scenario, there does not need to be a blood, breath, or other chemical test to show that the driver is “over the limit” by having a blood alcohol content (BAC) of above 0.08%. Although, a person can be convicted of DUI – less safe if there BAC is below 0.08% coupled with other evidence of intoxication.
This is the DUI charge that prosecutors often rely upon when a person refuses the state’s administered test. (e.g. the breath test at the police station or the drawing of the driver’s blood.) Here, the prosecutor must rely on other pieces of evidence in order to effectively prosecute the case. Common ways that prosecutors try to prove a DUI – less safe case are the use of videos, statements made by the driver, and field sobriety tests (FSTs).
Dash cam videos are extremely effective in DUI prosecutions. (Sometimes they can greatly assist the defense as well). In the video, you will oftentimes see exactly what happened from the traffic stop to the arrest. Although they are voluntary, most drivers agree to go through a battery of FSTs which are captured on video. These FSTs include, but are not limited to, the “walk and turn”, “one legged stand”, and the Horizontal Gaze Nystagmus (HGN – follow the officer’s pen light with your eyes).
Depending on the strength of the case, DUI cases can be proven without a chemical test; the DUI – less safe charge.
2. DUI – Per Se
The other way that prosecutors seek to obtain convictions is charging a person with a second DUI citation based on the driver’s BAC. This typically happens when the driver submits to the state’s administered test and the BAC is over 0.08%. (There are other threshold limits for DUI based on your age and the type of license held. However, the majority of DUI arrests involve the 0.08% limit.)
These cases are generally easier for prosecutors to prove. While there are many legal issues that can arise as a result of a DUI – per se citation, the prosecutor, with some limited exceptions, simply has to prove that the driver was “over the legal limit.”
However, while a driver can go to trial and be found guilty of both DUI offenses, the driver cannot be convicted of both offenses. The guilty verdicts on the DUI counts will merge as a matter of law into a single conviction for DUI.
As with all columns that I write dealing with DUI’s, the best advice is simply not to drink and drive. Just following that simple suggestion makes our community safer and avoids a multitude of serious problems for a driver accused of driving under the influence.