Ask just about anyone what driving under the influence means, and they will have some understanding of the laws in Georgia, which prohibit all of the following conduct.

• Driving while influenced by alcohol to the extent it is less safe for them to drive.
• Driving while under the influence of any drug, including illegal drugs, over the counter drugs, and prescription drugs.
• Driving while influenced by the inhalation of any aerosol, glue, or other vapor, which makes it less safe for them to drive.
• Driving under the influence of a combination of drugs, alcohol, and/or inhalants, such that it makes it less safe for them to drive.
• Driving while their blood alcohol concentration (BAC) is 0.08 grams of alcohol or more from the time of driving until any time within three hours of driving.

All of these types of driving conduct are, in fact, examples of driving while under the influence (DUI). However, many people are surprised to learn that “driving” is not actually a required element of driving while under the influence of alcohol or drugs. Commonly referred to as a “parked car DUI,” certain conduct can result in criminal DUI charges without driving so much as an inch out of the parking lot.

Physical Control and the Georgia DUI Statute

The Georgia DUI statute states, “A person shall not drive or bin in actual physical control of any moving vehicle. . . “ under any of the circumstances described above. But what does it mean to be in physical control of a moving vehicle if that is more than just driving? Fair question. The answer is, “It depends on the circumstances.”

The easy example of physical control is when a person is under the influence of drugs, alcohol, or inhalants, and they are sitting in their car with it running, their foot on the brake, and the car in reverse, about to back out of their parking spot at the bar. Of course, if the car is not in reverse, but the rest of the facts are true, this could also be charged as a parked car DUI. Similarly, if the keys are in the ignition but the car is not yet turned on, this could be charged as a parked car DUI. Additionally, if the person is in the car, in the driver's seat, with the keys in their hand, but not in the ignition, this can be charged as a parked car DUI. However, a person walking to their car, with the keys in their hand, would not be charged with a parked car DUI.

Physical Control Proven by Circumstantial Evidence

Whether or not someone is in physical control is often a judgment call. Every case, of course, has different facts. In some cases, the facts are completely different, and in other cases, the facts are nearly but not completely identical. When determining whether someone was in physical control of their vehicle, a review of other cases can be helpful for comparison purposes. For example, courts in Georgia have found circumstantial evidence of physical control in the following circumstances.

• Warm tires, which suggest the car was driven recently.
• Warm hood of the car, which also suggests the car was driven recently.
• Keys in the ignition.
• Car parked in the middle of a road.
• Car parked on the side of a road, but not parked in what would commonly be regarded as a parking spot.
• Physical damage to the vehicle, near where an accident has obviously occurred.
• A single person in the car parked in what is obviously not a designated parking space, with no other plausible driver on the scene.
• The car gear is in drive, rather than in park.

Arguments Against Physical Control

“Physical control” is an element of a parked car DUI. The government has the obligation to prove each element of a criminal case beyond a reasonable doubt. At a trial, the government may argue a person's presence alone in the car establishes physical control. However, this may be countered by proof that another person actually drove the car and left the scene to get gas, or left after a heated argument, or they had some other valid explanation for why the person was alone in the car but had not driven it. “Physical control” can be countered by pointing out the person was in the back seat of the car, and the keys were in their pocket. If the keys are, in fact, found outside of the car, this, too, counter's the government's argument of “physical control.”

Challenges in DUI Cases

There are many ways to challenge a DUI case in court. Each challenge is based on the facts and circumstances of the case at hand. Some of the more common legal challenges in DUI cases include

• The stop of the car.
• Detention of the driver after a stop.
• The collection of the blood test or urine test.
• Validity of the test result.
• Whether the instruments used to test the sample were working properly.
• Whether the person was actually in a situation where it was less safe for them to drive.
• The driver was not, in fact, in physical control of the car at the time.

Charged with DUI

If you have been charged with a DUI, you need a DUI attorney who can review your case to determine whether there is a sufficient legal basis for the charges, and what challenges may be brought against the charges. Our Atlanta DUI lawyers have over 25 years of experience challenging DUI cases. We offer free consultations in all DUI cases. Additionally, someone is available to discuss your case with you 24 hours a day, 7 days a week. Contact us today at 404.816.4440.