Most people assume a DUI charge comes down to one thing: the number on the breathalyzer. In Georgia, it is more complicated than that, and understanding the difference can change how a defense is built and what outcomes are realistically available.
Georgia law recognizes two separate DUI charges, and they work in fundamentally different ways. At Philip Kim Law, P.C., understanding exactly these distinctions is the foundation of how we defend our clients. Here is what both charges actually mean and why the difference matters.
The Two DUI Charges Under Georgia Law
DUI Per Se applies when a driver’s blood alcohol concentration (BAC) is 0.08 or higher. The charge is built entirely around the number. No evidence of impaired driving is required. A driver who passed every field sobriety test but registered a 0.09 on the breathalyzer can still be convicted of DUI Per Se under O.C.G.A. 40-6-391.
The Per Se standard also applies at lower thresholds for specific categories of drivers. Commercial drivers face a limit of 0.04, and drivers under 21 face a limit of 0.02 under Georgia law.
DUI Less Safe does not require a BAC reading at all. It applies when the prosecution argues that alcohol or another substance made the driver less safe to operate a vehicle, regardless of how much or how little was in their system. A driver can be charged with DUI Less Safe with a BAC below 0.08, with no chemical test result, or after refusing the breathalyzer entirely.
This is also the charge used in all drug-related DUI cases in Georgia, including prescription medication and marijuana, because there is no per se threshold for any substance other than alcohol.
Can You Be Charged With Both at the Same Time?
Yes, and it happens regularly. Prosecutors in Georgia frequently file both charges from a single arrest to give themselves two paths to conviction. A jury can convict on either charge independently or on both. Facing two charges does not mean facing double the penalties, but it does mean the defense has to address two separate legal theories at once.
Why the Distinction Matters for Your Defense
The difference between a Per Se and a Less Safe charge is not just technical. It shapes the entire defense strategy.
A Per Se defense focuses primarily on the BAC result itself. Was the breathalyzer properly calibrated? Were the maintenance records complete? Was the test administered correctly? Was there a medical condition that affected the reading? The number is the prosecution’s case, and the defense targets the number.
A Less Safe defense is broader. Without a BAC number to anchor the prosecution’s case, the focus shifts to the officer’s observations, the field sobriety test administration, the dashcam footage, and whether the totality of what the officer saw actually supports an impairment finding. These cases are more subjective and more dependent on how well the defense can dismantle the officer’s account.
Refusing the chemical test removes the possibility of a Per Se charge, but does not make a Less Safe charge disappear. Officer observations, field sobriety results, and video footage can all support a Less Safe prosecution on their own.
BAC Below 0.08 Does Not Mean No Charge
This is one of the most common misconceptions about Georgia DUI law. A reading below the legal limit does not prevent a DUI Less Safe charge if the prosecution believes the evidence supports impairment. Someone who blew a 0.06 but showed observable signs of impaired driving during the stop can still face a DUI charge in Georgia.
The same applies in the other direction. A BAC of 0.08 or higher is sufficient for a Per Se conviction even if the driver appeared completely unimpaired to every officer on the scene.
Facing a DUI Charge in Gwinnett County
Whether the charge is Per Se, Less Safe, or both, the details of your arrest matter more than most people realize. Philip Kim Law, P.C., offers a free consultation so you can get an honest assessment of where your case stands before making any decisions. Reach out online or call (678) 203-8558 to get started.
Frequently Asked Questions
What is the difference between DUI Per Se and DUI Less Safe in Georgia? DUI Per Se is based entirely on a BAC of 0.08 or higher. No evidence of actual impairment is required. DUI Less Safe is based on the prosecution’s argument that a substance made the driver less safe, regardless of BAC level. Both charges fall under O.C.G.A. 40-6-391 and carry the same penalty range.
Can I be charged with DUI in Georgia if my BAC was below 0.08? Yes. A BAC below the legal limit does not prevent a DUI Less Safe charge if an officer observed signs of impairment. Georgia law does not require a minimum BAC for a Less Safe charge.
What happens if I refuse the breathalyzer in Georgia? Refusing the breathalyzer triggers an automatic administrative license suspension through Georgia DDS, and the refusal can be used as evidence in court. It eliminates the possibility of a DUI Per Se charge but does not prevent a DUI Less Safe charge based on officer observations and other evidence.
Are drug DUI charges Per Se or Less Safe in Georgia? All drug-related DUI charges in Georgia, including prescription medication and marijuana, are charged as DUI Less Safe. There is no per se BAC threshold for any substance other than alcohol under Georgia law.
Can you be charged with both DUI Per Se and DUI Less Safe from the same arrest? Yes. Prosecutors frequently file both charges from a single arrest. A jury can convict on either charge or both. The defense has to address each charge on its own terms.
Does a DUI Per Se conviction require proof that I was actually impaired? No. A BAC of 0.08 or higher is legally sufficient for a Per Se conviction in Georgia, regardless of whether the driver showed any observable signs of impairment. The number alone meets the legal standard.
