Everyone has heard the terms DUI and DWI. Short for driving under the influence and driving while intoxicated, these terms call to mind an image of someone driving after having a few drinks. However, did you know it is possible to get a DUI or DWI without driving the car at all? This is due to the concept of physical control. In fact, if you read Georgia's DUI law, it states, “ A person shall not drive or be in actual physical control of any moving vehicle” if one of the following is also true:
- The person in physical control of the car is so influenced by alcohol it is less safe for him or her to drive the car.
- The person in physical control of the car is being influenced by the use of any drugs, whether or not they are illegal drugs, prescription drugs, or over the counter drugs, to the extent it is less safe for him or her to drive the car.
- The person in physical control has inhaled an aerosol, glue, or other vapor to the extent it is less safe for that person to drive the car.
- The person is under the influence of a combination of any drug, inhalant, and/or alcoholic beverage to the extent it is less safe for the person to drive a car.
- An examination of the person's blood alcohol concentration (BAC) indicates a test result of 0.08 grams of alcohol or more at any time within three hours of driving or being in physical control of the car.
Being in physical control of a car while under the above-described conditions is often referred to as a “parked car” DUI. The car does not have to actually be in park. A person sitting in a car with the car running but with a foot on the brake could get a “parked car DUI” even if the car is in drive. A person steering a car down a hill while the car is in neutral could get a “parked car DUI” if he or she met one or more of the above-listed conditions.
Understanding Physical Control
Whether or not someone is in physical control of a car is often a judgment call. Obviously, a person sitting in the driver's seat, with the car running and his or her hand on the gear shift, switching from park to drive, is in physical control of the car.
But what about a case wherein someone is outside the car but with the keys in one hand and car door handle in the other hand? Depending on the facts, a DUI criminal defense lawyer will make a determination about whether or not to challenge physical control as a legal issue before the court, or a factual issue before the judge or a jury. Sometimes, an attorney will decide to attack the case using both approaches.
Facts that May Prove Physical Control
In law, “precedence” is a concept that refers to reviewing what other courts have decided in order to evaluate what the court may decide in a new case. There is precedence for what may constitute physical control in a DUI case.
Of course, every case is fact-specific, so it is a good idea to have an experienced DUI attorney review the facts of your case. Direct evidence of physical control is when someone is in the car, in the driver's seat, with the keys in the ignition and the car on. However, if the person has the keys in his or her hand instead of the ignition, this can still be considered physical control. If the person is passed out in the driver's seat, and the car is running or the keys are in the ignition, this is clear evidence of physical control.
Circumstantial Evidence of Physical Control
In the past, courts have found physical control when the following facts have also been present:
- The hood of the car is warm, suggesting the car was recently driven.
- The tires are warm, also a suggestion the car was recently driven.
- Keys are in the ignition.
- The car is parked on the side of the road, but not in a spot usually used for parking.
- The car is parked on the roadway itself.
- There is damage to the vehicle, coupled with an accident in close proximity.
- The gear is in drive, rather than park.
- You are unable to justify your presence in a car that is not in a logical parking space when no one else is around who could have driven the vehicle.
Arguments Against Physical Control
Again, every case is different, however, there are some facts that can argue against physical control. For example, if a person is in the back seat of the car sleeping, and the keys are not in the ignition, that person may be able to argue he or she was not in physical control of the vehicle. If the person is in the car, but the keys to the car are left with the bartender inside the bar, there may be no physical control. If the person in the driver's seat is accompanied by another person in the car, and the latter person has the car keys, there may be an argument of no physical control.
Understanding what the Government Must Prove in Parked Car DUI Cases
It is not enough to prove one was in physical control of the car. The government must also prove the person was intoxicated under the law, based on one of the five factual scenarios described at the beginning of this post. Where the government cannot prove intoxication, there is no DUI conviction. Additionally, all the other DUI defenses are available to a parked car DUI defendant.
If You are Facing Parked Car DUI Charges
Our attorneys focus exclusively on DUI cases. As such, we have extensive experience handling parked car DUIs. Our Hall County DUI attorneys will review every fact and work to develop a defense that is best for your particular case. We fight for our clients every step of the way. Contact us today to discuss your parked car DUI case.