Can I be arrested for DUI even if I passed a breath test?
Answer:
Shockingly, yes. In the state of Georgia, if you provide a breath sample below the legal limit but still above .05, you can still be arrested and charged with DUI. Almost nobody knows this. People blow under the limit, assume they’re free to go, and are surprised when the officer tells them otherwise. The Georgia legislature has established that a reading above .05 but below .08 can still result in a DUI charge — specifically, “DUI less safe.” If this has happened to you, give us a call. We can help.
Georgia Has Two Ways to Charge DUI
Georgia law doesn’t rely on a single number to define DUI. Under O.C.G.A. § 40-6-391(a)(5), “DUI per se” applies when a chemical test shows a blood alcohol concentration of 0.08 grams or more — the number alone is the violation. But under O.C.G.A. § 40-6-391(a)(1), “DUI less safe” makes it illegal to drive while alcohol has made you less safe behind the wheel, regardless of what any test shows. Prosecutors often pursue both theories at once, which is exactly why a test result below 0.08 doesn’t automatically mean you’re in the clear.
What the Law Actually Says About a Reading Between .05 and .08
Georgia’s own evidence code addresses this range directly. Under O.C.G.A. § 40-6-392(b)(2), a result above 0.05 but below 0.08 doesn’t create any presumption either way — it doesn’t suggest you were impaired, but it doesn’t clear you either. The statute specifically allows that number to be considered alongside other evidence in deciding whether you were under the influence. In other words, the law was written to leave this range open to argument rather than resolve it automatically.
Why a “Passing” Number Doesn’t End the Analysis
Because a reading in that range doesn’t settle anything on its own, officers and prosecutors lean on other evidence to build a “less safe” case: how you were driving before the stop, field sobriety test performance, slurred speech, odor of alcohol, and your own statements. None of that evidence requires a specific number to support a charge — which is exactly how someone can blow under 0.08 and still be arrested.
What Happens Below .05
Georgia law treats a reading of 0.05 or less differently: under O.C.G.A. § 40-6-392(b)(1), the trier of fact may infer that you weren’t under the influence. That’s a permissive inference, not an automatic dismissal — the state can still try to overcome it with other evidence — but it’s a meaningfully stronger position than the open-ended .05-to-.08 range.
Defending a Less Safe Charge With a Low Number
A low breath result isn’t a dead end — it’s often the strongest card in a less-safe defense. If the number itself doesn’t support impairment, the state’s whole case shifts onto the officer’s observations and the field sobriety tests, both of which are far more subjective and far more open to challenge than a chemical test result. That’s usually where a defense in this kind of case actually gets built.
What to Do Next
If this has happened to you, give us a call. We can help.
