Question:   I know what being drunk is and I wasn't drunk when the cops arrested me for DUI. Call it what you want, maybe buzzed, tipsy or whatever, but I wasn't drunk. I went to a club in Atlanta after work with a couple of friends from college and they were the ones drinking a ton, not me. They were getting pretty stupid, making what I thought were bad decisions, and so I just left and drove home. I knew they'd take a cab or Uber or something.

But when I was driving home I dropped my cell phone after I called my girlfriend and when I went to pick it up I must have swerved and a Cobb County cop saw me. I was driving home to Marietta when I got pulled over. I told the cop I had a few but he thought I was drunk and made me do those field sobriety tests that cops do when they think you're all buzzed up. I did them and I think I passed. I admit I had to go to the bathroom and maybe that's why the police officer thought I was drunk.

He took me in and I took a breath test and that machine said I was .125. I don't care what the machine said, I didn't feel drunk and I could have made it home easily. But now I need to speak with a Cobb County DUI lawyer.

Since I wasn't drunk, can I use that to fight the DUI charge? Seriously, I wasn't drunk and they call it drunk driving.

T.W. in Marietta, GA

Answer:   You certainly may have solid factual and legal arguments to fight the DUI charge. But to say that you weren't “drunk” is not one of them.

In the Georgia DUI statute, § 40-6-391, the word “drunk” never appears. Obviously, drunk is a highly subjective term. The law, instead, uses the phrase “less safe,” which, while also subjective, is much easier to demonstrate to a judge or jury.

In your case, your breathalyzer test of .125 is higher than the per se Georgia limit of .08. So that is a strong piece of evidence that the prosecution will use against you. The prosecution will also scrutinize your performance on the field sobriety tests. They will look for “clues” for intoxication on those tests.

Again, a DUI prosecutor does not have to prove that you were drunk. They only need to prove that you were a less safe drive.

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