What is DUI Less Safe?
By Mike Owen, Columbus Ledger-Enquirer | |
McClatchy-Tribune Information Services |
Just because your blood alcohol content is below the legal limit of .08 percent, you're not necessarily home free.
There are three instances when this charge can be used:
-- If a driver appears to be inebriated but refuses to be tested.
-- If a driver exhibits behavior that shows he or she is clearly unable to safely operate a vehicle, even if his or her blood alcohol level is below .08.
-- If a driver is pulled over by the
It takes about five weeks for the blood test results to come back from the state crime lab, so the driver is charged with DUI Less Safe because there is not yet any evidence to have a DUI Per Se charge bound over to State Court.
Dodelin has been practicing law for 35 years and handles a lot of DUI cases, of both the Per Se and Less Safe varieties. He stresses that the latter is not a lesser charge under the law. Both carry the same penalties.
"Normally, you're going to see a Less Safe when there's an accident," Dodelin said. "If you hit a roadblock and you've done absolutely nothing wrong, then they're not going to charge you unless you're .08. But I assume if you pull up to a roadblock and you're all over the road and you almost run into them, then you'd get charged with a Less Safe."
Over the last two years, Dodelin says, he has seen the number of DUI Less Safe charges rise dramatically. This is not, he contends, the result of ticket-happy police looking to pad their arrest records. It is the direct result of the establishment of a
In 2009 another
The reason the Nighthawks issue almost exclusively DUI Less Safe charges is because they prefer to take suspects to the hospital and take a blood sample to send to the state crime lab for analysis, Dodelin said.
"Practically all their tests are blood tests. They stop you, they read you the implied consent rights, they transfer you to
If the blood test comes back with a blood alcohol level of less than .08, and there is no other evidence of inebriation, then the driver is not prosecuted, said Muscogee County Solicitor General
"Absolutely not," Goddard said. "They just have to have probable cause to make the arrest. But we would have to prove something beyond that, and that's just absolutely not a DUI. If it's .08 or more, it is, and then we go forward."
But even if the charges are dropped, at that point the driver would have spent at least part of a night in jail, may have had to pay a bail bondsman and retain an attorney, and would have had his or her mugshot published as a DUI arrest.
Of course, a driver can refuse to be tested, but if you refuse to take a blood or breath test, you automatically lose your driver's license for a year, Dodelin said. With a DUI conviction, you also lose your license, but you can apply for a limited license that allows you to drive to and from work, but nowhere else. If you refuse the tests, you do not have that option.
The law enforcement officer chooses which test -- blood, breath or urine -- will be administered. But if you're given a breath test and fail, you have the right to demand a blood test, Dodelin said.
"If you know what the results were, and if you were right in there close (to .08), let's be realistic, you might think, 'Well, by the time they get me up there and get my blood drawn, maybe I'll be down a little bit,'" Dodelin said. "But if you've blown a .15, you're not going to accomplish anything."
"The officer would have to have some reason to use it, something that he could articulate," Hawk said. "That would be the only reason we would use it."
Hawk said certain actions and behavior will indicate inebriation to the officer, and that along with some indication of blood alcohol content, even if it's beneath .08, could lead to a Less Safe charge.
<p>"See, blowing a .06 is another indicator, along with what the officer witnessed," Hawk said. "By driving in that manner, you're actually driving less safe. You shouldn't be out there drinking and driving."
DUI Less Safe charges are often accompanied by traffic violations, such as speeding or improper lane change.
Dodelin has seen the legal BAC level drop and the penalties for DUI become more severe over the years, to the point that he calls the consequences of being convicted of DUI "horrible."
The fine for a first DUI can be
"Most people at some time in their life have probably driven when they shouldn't have," Dodelin said. "But the penalties right now are tough as hell. It's just not worth it."
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