DUI and the "Actual Physical Control" Requirement
Columbus Georgia Lawyer Mark Jones Discusses the “Actual Physical Control” Requirement of DUI Law
I love defending DUI cases because they are very technical and succeeding for the client in these cases always has positive consequences for the client’s life and career — whether they are an E6 Staff Sergeant, a teacher, a nurse, an olympic gold medalist, or other professional.
Let’s face it. A lot of us enjoy an alcoholic beverage on the weekend in Georgia — certainly those in Alabama do.
Unlike other substances that our government controls, there is nothing illegal about simply consuming alcohol. What people do after consuming too much of it is an entirely separate issue where the law comes into play. Nearly every domestic violence case I have seen involves alcohol. Nearly every disorderly conduct case involves alcohol as well. Obviously, most DUI charges and public intoxication charges involve, you guessed it, alcohol.
As I have written before, the best way to beat a DUI charge is to simply not drive after consuming alcohol to begin with.
Seriously, you can always call a cab.
If you are in a large city, you can call an Uber.
You can also call a tow truck driver and ride with the tow truck driver with your car in tow!
With that being said, our legislature has imposed certain requirements for the State of Georgia to prove in the prosecution of any driving under the influence charge:
In order to be guilty of a driving under the influence charge in Georgia, the prosecutor must prove that the defendant
(1) (a) drove or (b) was in actual physical control of any moving vehicle;
(2) (a) with an alcohol concentration of .08 grams or more; or (b) to the extent that it was less safe for her to drive
This is a legal term of art that allows for silly prosecutions. Imagine someone who has fallen asleep drunk in an RV in a Walmart parking lot. He/she may have consumed alcohol in the equivalent of their home, protected by my favorite amendment to our Constitution, Amendment IV, and yet still receive a DUI under the technical DUI definition because he/she was in actual physical control of a motor vehicle.
Common “Actual Physical Control” Scenarios
The most common scenario where the “actual physical control” element of a DUI charge is used to prove a DUI conviction is where the driver has fallen asleep in her vehicle on the side of the road after consuming alcohol.
If the State can prove you were in the vehicle, keys in ignition, and a hot engine, then this circumstanial evidence will likely prove sufficient to convict you of DUI even though you were not technically “driving” at the time that the officer made the charge against you.
Factors Courts Look at in Proving Actual Physical Control
The Georgia appeals courts have identified several factors that prosecutors can use in proving that a defendant was in actual physical control of a moving vehicle including:
- whether the defendant owned the vehicle, see, e.g., Coates v. State, 212 Ga. App. 93 (defendant owned car and was in driver’s seat when officer arrived to parked vehicle)
- whether defendant made incriminating admissions, State v. Hill, 178 Ga. App. 669 (1986) (defendant told officer she swerved to miss a dog)
- whether the engine was running or transmission was “in drive,” Jones v. State, 187 Ga. App. 132-133 (1988) (defendant was slumped over steering wheel asleep with engine running and transmission in drive)
- whether the defendant had possession of the keys to the vehicle or attempted to start the vehicle, Krull v. State, 438 S.E. 2d 37 (1993)
In order to make out a case for DUI where you were not actually driving the vehicle, the State of Georgia must prove actual physical control of the vehicle you allegedly drove. This is a very significant distinction in cases where the Defendant is found to be asleep behind the wheel. In order to have a chance at beating your charges, you need an experienced DUI attorney to represent you in the matter.
Call Mark Jones today for a free consultation concerning your or a loved one’s legal situation when charged with a DUI.
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