Georgia has two different DUI charges, and knowing which one applies to you could make a significant difference in how your case plays out. They’re known as DUI per se and DUI less safe, and while both fall under Georgia’s DUI laws, they work very differently.
Which charge applies to you depends on the circumstances of your stop, what testing was done, and what the results showed. The two charges aren’t interchangeable, and they don’t require the same evidence to stick. Knowing which one you’re facing is the foundation of any solid defense.
If you’ve been charged and you’re trying to make sense of it all, speaking with an Ellijay DUI attorney as early as possible gives you the best chance of protecting your rights and your future.
DUI Per Se
The first type is called DUI per se, and it’s the more straightforward of the two. Under O.C.G.A. § 40-6-391(a)(5), you can be charged with DUI per se if a chemical test (i.e., breath, blood, or urine) shows your BAC at or above the legal limit. For most drivers, that’s 0.08%. For commercial drivers, it’s 0.04%. For drivers under 21, it’s 0.02%.
The word “per se” is Latin for “by itself,” and that’s exactly how this charge works. The test result is the evidence. The prosecution doesn’t need to prove you were driving erratically, slurring your words, or showing any other signs of impairment. If the number is there, the charge stands on its own.
That said, the test result isn’t bulletproof. How the test was administered, whether the equipment was properly maintained, and how any blood sample was stored and handled can all be challenged. A DUI lawyer will examine every step of that process.
DUI Less Safe
The second type is DUI less safe, and this one surprises a lot of people. Under O.C.G.A. § 40-6-391(a)(1), you can be charged with DUI less safe even if your BAC was below the legal limit, or even if you refused testing altogether.
This charge is based on the officer’s observations rather than a number. If law enforcement believes that alcohol or drugs made you a less safe driver than you would have been otherwise, that’s enough to support a charge. Slurred speech, bloodshot eyes, poor performance on field sobriety tests, erratic driving, or the smell of alcohol can all factor in.
The “less safe” standard is intentionally broad, which is part of what makes it so challenging to fight without experienced legal help. There’s no single threshold to point to; it comes down to the officer’s judgment and what they documented at the scene.
Can You Be Charged With Both?
Yes, and it happens more often than people realize. Georgia prosecutors can charge a driver with both DUI per se and DUI less safe arising from the same incident. This isn’t double jeopardy; it’s two separate legal theories applied to the same set of facts.
In practice, this gives the prosecution flexibility. If one charge doesn’t hold up—say, the breathalyzer results get thrown out—they may still be able to pursue the other. Having both charges on the table puts more pressure on the defendant and makes having a knowledgeable DUI lawyer even more critical.
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How Georgia DUI Laws and Penalties Apply to Each Charge
Georgia DUI laws and penalties apply to both types of charges, and the consequences are serious regardless of which one you’re facing. A first offense can mean fines ranging from $300 to $1,000, up to 12 months in jail (with a mandatory minimum of 24 hours), 40 hours of community service, a 12-month license suspension, and completion of a DUI Alcohol or Drug Use Risk Reduction Program.
Second and third offenses within a ten-year lookback period carry escalating penalties — longer jail sentences, higher fines, extended license suspensions, and mandatory installation of an ignition interlock device. A third DUI within five years is classified as a felony, which means the consequences extend well beyond fines and probation.
The type of charge, per se or less safe, doesn’t change the penalty range. What it does change is how the case is built and how it can be defended.
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What This Means for Your Defense
Knowing which charge(s) you’re facing shapes everything about how your case is approached. A DUI per se defense often focuses on the reliability of the chemical test: Was the breathalyzer calibrated correctly? Was the blood sample handled properly? Was there a valid reason for the stop in the first place?
A DUI less safe defense, on the other hand, often centers on the officer’s observations and whether they were accurate, consistent, and properly documented. Field sobriety tests are notoriously subjective, and there are established ways to challenge how they were conducted and scored.
In either case, the goal is to identify weaknesses in the prosecution’s evidence and use them to protect you.
Talk to Teague Law Before You Do Anything Else
At Teague Law, we’ve spent nearly two decades standing up for people across North Georgia who felt like the odds were against them—and in the criminal justice system, they often are. We know this community, we know these courts, and we know how to fight for the people who live here.
If you’re facing a DUI charge and trying to figure out what you’re up against, we’re ready to help. Call us today for a free consultation and let’s start building your defense.
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