Everyone understands that you can't operate a car while you're intoxicated without running the risk of getting a ticket for driving under the influence of alcohol (DUI). However, many people are unfamiliar with the law of physical control. It is against the law in Georgia to be in physical control of a motor vehicle while under the influence of alcohol. Specifically, the law says, “A person shall not drive or be in actual physical control of any moving vehicle“ while one of the following is also true:

• The person is under the influence of alcohol to such an extent it is less safe for the person to drive the car.
• The person is under the influence of any drug (prescription, illegal, or over the counter) to such an extent it is less safe for the person to drive the car.
• The person is under the intentional influence of any glue, aerosol, or other vapor to such an extent it is less safe for the person to drive.
• The person is under the combined influence of two or more of the above-referenced substances to the extent it is less safe for the person to drive.
• The person has a blood alcohol concentration (BAC) of 0.08 grams or more at any time within three hours after driving or being in actual physical control of a vehicle.

When one is in physical control of a car, but not driving it, this is sometimes referred to as a parked car DUI.

Understanding Parked DUI

A parked DUI occurs when a person is found in his or her vehicle by an officer and is suspected of being under the influence of alcohol or drugs while also being in physical control of the vehicle even if not driving the vehicle at the time the officer arrives.

"Physical control" is the key element in a DUI case where the suspect was not actually driving. Because a DUI suspect -- regardless the BAC level -- cannot be convicted of a DUI if not in physical control of the vehicle.

The Government's Burden in Parked Car DUI Cases

In order to be convicted of the DUI under the theory of physical control, the state still needs to prove the elements of the offense. This includes that you are either under the influence of alcohol, drugs, or vapors to the extent your ability to drive safely was impacted or that your blood alcohol concentration was 0.08 or more within three hours of being in physical control of the vehicle.

Proving Chemical Intoxication

The State must prove you were intoxicated by alcohol or drugs, including prescription drugs. This can be done by evidence taken from observation, field sobriety tests, and/or chemical tests, the latter of which includes a breath test, blood test, or urine test.

Proving Physical Control of the Vehicle

The State also must establish that you were, in fact, in physical control of the vehicle. This is fact-specific.

Examples of Physical Control

If the hood of the car is warm, and there are keys in the ignition, this is an indication that the car has recently been driven. An individual who owns a car and is found sitting in the driver seat of that car could be charged with DUI if they were also under the influence of alcohol, drugs, or vapors, or had a blood alcohol concentration of .08 or greater.

Similarly, if a person is in a car on the side of the road, passed out in the driver's seat while the car is running, this is a clear indication the person in the driver's seat exercised physical control of the vehicle.

Oftentimes when the evidence is not particularly clear, if a person makes incriminating statements, such as, “I pulled over as soon as I realized it was not safe to drive,” this can be used to charge someone with DUI.

Examples of Arguably No Physical Control

A person who is in the backseat of a car with the parking brake on and the keys not in the ignition may have a legitimate argument they are not, in fact, in physical control of the vehicle.

Similarly, a person in the car but without his or her keys in the car may be in a position to make an argument he or she was not in physical control of the vehicle, and therefore not guilty of a DUI.

Circumstantial Evidence to Prove Physical Control

Apart from the above example scenarios, below factors can be used as circumstantial evidence to help prove you were in physical control of the vehicle.

• Warm engine or warm tires
• Keys in the ignition
• Car in the middle of the roadway or slightly off the road
• Vehicle damaged and next to the scene of an accident
• Gear is in drive
• Inability to explain why you were not the one driving if no other driver/person is present with you.

It is important for people to understand the government only needs probable cause to believe someone has committed a crime to charge them with a crime. However, in order to win a conviction for a criminal charge, the state must prove the case beyond a reasonable doubt. This is a much higher standard. Any DUI charge should be carefully scrutinized by a criminal defense attorney, looking for holes in the State's case.

If You or a Loved One is Facing Criminal Charges...

Because every case is different, it is absolutely essential that you have a qualified DUI attorney on your side advocating for you. Our Roswell and Alpharetta DUI attorneys have experience handling parked car DUI cases. We make sure we leave no stone unturned. From challenging the facts observed and the conclusions drawn prior to asking a person to take a DUI breath or blood test to challenging the validity of the breath test or blood test results, our DUI lawyers know how to approach DUI cases.

Contact us today for a free consultation at (404) 816-4440. We have lawyers available 24 hours a day, seven days a week.