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Is "Less Safe" DUI better than "Per Se" DUI?

In Georgia, it is fairly common in court to see someone charged with both "less safe" and "per se" DUI.  This usually just means that the person took the breath or blood test and were over the legal limit of 0.08.  Although the person can be convicted of both, the person can only be sentenced to one.  In this context, we are speaking about alcohol only cases.  DUI-Drug cases have different rules.  For DUI-drugs cases where there is going to be a conviction, it would always be better to plead to alcohol less safe if that option is available.  But, let us stick with the alcohol cases for now.  And, let me add the proviso that this applies to over 21 drivers.  There are different rules for under 21 drivers.

The question sometimes raised is whether it is better to plead to "less safe" or to "per se."  

"Less safe" means that it is alleged that the person is under the influence and is less safe to drive.  This is analogous to the old drunk driving standards.  "Per se" means the person took a test and that test was 0.080 or greater. 

For license suspension issues, there are no differences at all.  If it is a first offense, the Georgia driver can obtain a temporary permit as long as there are no other suspensions on the person's license.  DDS does not care whether the DUI conviction was for "less safe" or for "per se."  Pleading or being convicted of "per se" will not disqualify the person from receiving a first conviction affidavit or a limited permit on a first offense.  It changes nothing about the license consequences for second, third or subsequent offenses within five years.

Occasionally, one will run across a judge who will refuse to issue a first conviction affidavit because the person had an unusually high blow.  This is a situation which is easily addressed by submitting a certified copy of the UTC disposition instead of the first conviction affidavit.  The first offender can still get a limited permit.

So, is there a difference.   The answer is yes.  When it comes to sentencing, it makes one very small difference.

It does not change the fine range, the community service, the DUI school requirement, or the amount of probation.

It does make a small difference in the jail time requirement.  Let me explain.  The sentence on a first offense is supposed to include ten days in jail, but the judge can suspend, stay or probate that jail time, with one limitation.  If the person had a 0.08 grams or more breath or blood result, all but 24 hours in jail can be so treated.  If there is no reference to such a result, then all of the time can be treated that way.  So, the difference is on a less safe DUI, the judge can probate the whole 12 months.  On a 0.08 grams or more "per se" case, the judge has to require the service of 24 hours in jail.

In many courts, this presents very little difference at all.  First, some courts require more than 24 hours jail time on a first DUI offense, whether or not there is a result greater than 0.08.  Second, all courts give credit for time served and many do not require the person to return to jail if they are a few hours short.  the ones that do require the return to jail to finish a few hours are likely also the ones that require more than 24 hours anyway.  

Some people think that "less safe" sounds better than "per se."  If you do, then that's great.  Most prosecutors are perfectly willing to close the case to either count.  It's still a DUI to them.  If I am entering a plea where both counts are available, I will generally go with the less safe count.  

The real difference between the two types of DUI is in how they are proved.  But that is a longer explanation.  Also, if you fall into a very narrow group of cases where there is a reason to plead nolo contendere, then the alcohol level can effect your eligibility to enter that plea.  That plea is rarely availed any more unless there is a civil liability claim possible.

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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