Other appellate decisions incorporated the Cargile decision equating the standards into their holdings. See, e.g., Groom v. State, 187 Ga. App. 398 (2) ( 370 S.E.2d 643) (1988) and Peters v. State, 175 Ga. App. 463 (1) ( 333 S.E.2d 436) (1985), overruled on other grounds, Hogan v. State, 178 Ga. App. 534 ( 343 S.E.2d 770) (1986), ("the requirement of proof that the driver be under the influence of alcohol to a degree which renders him less safe or incapable of safely driving"); Jones v. State, 168 Ga. App. 106 ( 308 S.E.2d 209) (1983) (since "less safe" and "incapable of driving safely" are equivalent, jury charge on "less safe driver" set forth proper standard of guilt and there was no need to give charge on "incapable of safely driving."); Kuptz v. State, 179 Ga. App. 150, 154 ( 345 S.E.2d 670) (1986) (Judge Beasley's special concurrence) (subsection (a)(1) requires proof that driver's condition was such that he was under the influence of alcohol to a degree which renders him incapable of safely driving, i.e., when it appears that it is less safe for such a person to operate a motor vehicle than it would be if he were not so affected). The decision in Cargile that there is no discernible difference between "it is less safe for the person to drive" and "renders him incapable of safely driving" is also correct semantically.
(citation omitted); Jones v. State, 168 Ga. App. 106 (2) (308 SE2d 209 ) (1983) (“Any witness who has observed an individual may state, based on his observations whether or not an individual was under the influence of alcohol.”)
See id.; Johnson v. State, 268 Ga. App. 426, 428 (2) ( 602 SE2d 177) (2004). Cf. Jones v. State, 168 Ga. App. 106 (1) ( 308 SE2d 209) (1983). (b) We also reject Schlanger's argument that the charge as given was contradictory and erroneous. Contrary to his asserted position, the legal standard for determining whether a person is guilty of "less safe" DUI is whether "the accused was under the influence of alcohol to the extent that it was less safe for him to drive a car than it would have been if he were not so affected."
Thus, the trial court did not violate the Equal Protection Clause when it gave the "less safe" jury charge nor was it compelled to give the "rendered incapable of driving safely" jury charge when it was requested by [ Drogan]. See Jones v. State, 168 Ga. App. 106 (1) ( 308 SE2d 209) (1983). (Emphasis supplied.)
Thus, the trial court did not violate the Equal Protection Clause when it gave the "less safe" jury charge nor was it compelled to give the "rendered incapable of driving safely" jury charge when it was requested by Johnson. See Jones v. State, 168 Ga. App. 106 (1) ( 308 SE2d 209) (1983). 3.
Groom v. State, 187 Ga. App. 398, 400 (2) ( 370 S.E.2d 643). See also Cargile v. State, 244 Ga. 871 (1) ( 262 S.E.2d 87); Jones v. State, 168 Ga. App. 106 (1) ( 308 S.E.2d 209); and Peters v. State, 175 Ga. App. 463 (1) ( 333 S.E.2d 436) (overruled on other grounds in Hogan v. State, 178 Ga. App. 534, 535 ( 343 S.E.2d 770)). Defendant contends that there was not sufficient evidence that he was a less safe driver. The arresting officer testified that there was an odor of alcohol about the car driven by defendant, that defendant was unstable on his feet and his speech was slurred.
"Although [OCGA § 40-6-391 (a) (1)] does not state such, the requirement of proof that the driver be under the influence of alcohol to a degree which renders him less safe or incapable of safely driving has been judicially imported. See Cargile v. State, 244 Ga. 871 (1) ( 262 S.E.2d 87) (1979); Jones v. State, 168 Ga. App. 106 (1) ( 308 S.E.2d 209) (1983)." Peters v. State, 175 Ga. App. 463 (1) ( 333 S.E.2d 436).
The trial court did not err when it permitted the arresting officer to give his opinion as to whether or not appellant was under the influence of alcohol. State v. Golden, 171 Ga. App. 27, 30 ( 318 S.E.2d 693) (1984); Jones v. State, 168 Ga. App. 106 (2) ( 308 S.E.2d 209) (1983). 3. Appellant next cites as error the trial court's instruction to the jury that refusal to submit to the chemical analysis required by OCGA § 40-5-55 is admissible evidence.
Here the court's charge set forth a proper standard for the jury to measure whether defendant's condition, in the context of the act, constituted guilt of a crime. Cargile v. State, 244 Ga. 871 (1) ( 262 S.E.2d 87) (1979); Jones v. State, 168 Ga. App. 106 ( 308 S.E.2d 209) (1983). Judgment affirmed. Deen, P. J., and Pope, J., concur.
Although subsection (a) (1) does not state such, the requirement of proof that the driver be under the influence of alcohol to a degree which renders him less safe or incapable of safely driving has been judicially imported. See Cargile v. State, 244 Ga. 871 (1) ( 262 S.E.2d 87) (1979); Jones v. State, 168 Ga. App. 106 (1) ( 308 S.E.2d 209) (1983). Subsection (a) (4) was added to the statute effective September 1, 1983.