A Paulding County criminal defense lawyer knows that under O.C.G.A. § 40-1-1(33), any wheeled vehicle propelled by gas, steam or electricity that can be operated through its own power will likely fit the definition of a motor vehicle under Georgia's DUI law. To this end, a tractor has been held to be covered [Browning v. State, 207 Ga. App. 547, 428 S.E.2d 441 (1993)]; a go-cart will likely qualify [1969 Op. Att'y Gen. No. 69-194]; golf carts driven on a municipal trail system are within the purview of statute governing driving under the influence [Simmons v. State, 281 Ga. App. 252, 635 S.E.2d 849 (2006)]; and a motor scooter [1954-56 Op. Att'y Gen. p. 471]. Implicitly, this does not refer to a self-propelled vehicle. In 2003, Georgia passed some new DUI statutes applicable to electric “people movers” such as the Segway.
O.C.G.A. § 40-1-1 does not define actual physical control or three words individually, nor is this phrase defined. Regardless of this oversight, Georgia's courts have liberally interpreted this provision, when DUI cases are concerned.An admission of being drunk, attempting to move a car, and an open container inside the car is circumstantial evidence of control. Moore v. State, 281 Ga. App. 141, 635 S.E.2d 408 (2006). See, for example,Moss v. State, 194 Ga. App. 181, 390 S.E.2d 268 (1990).
The defendant must be driving or in actual physical control of a motor vehicle in order to support a charge of DUI; however, the defendant is not required to have actually committed any unsafe acts. Furthermore, the State is not required to prove that any person actually saw the defendant operate the motor vehicle if there is sufficient circumstantial evidence to support a conviction.
In Lewis v. State, 149 Ga. App. 181, 254 S.E.2d 142 (1979), the defendant was first observed in a ditch by a person who turned off the ignition and lights. A police officer later found him with the ignition and lights on, asleep or passed out. This was sufficient to constitute actual physical control. Accord, Phillips v. State, 185 Ga. App. 54, 363 S.E.2d 283 (1987) (asleep at wheel; lights on; engine running); Felchlin v. State, 159 Ga. App. 120, 282 S.E.2d 743 (1981) (the defendant's admission that he was going too fast to make curve was at least some evidence that he was driving vehicle which was found overturned); and Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972) (wreck where visible evidence showed that car left roadway; defendant was only person at the scene). The driver need not have steered the vehicle nor have the engine running. Savage v. State, 252 Ga. App. 251, 556 S.E.2d 176 (2001).
Even evidence that would normally be legally insufficient to support probable cause to arrest will suffice at the Georgia Court of Appeals. State v. Loy, 251 Ga. App. 721, 554 S.E.2d 800 (2001);Jenkins v. State, 223 Ga. App. 446, 478 S.E.2d 143 (1996). But see, D'Anna v. State, 201 Ga. App. 731, 412 S.E.2d 857 (1991) (because evidence of the defendant's driving the truck, was wholly circumstantial and defendant offered a reasonable hypothesis explaining his presence near the location of abandoned truck, improper admission of an in-custody inculpatory statement for the jury's consideration was probably contributing factor to the jury's guilty verdict, thus reversal of conviction was warranted).
Recent case law has opened the door for defense counsel to challenge (at a pre-trial motion hearing) the arresting officer's decision to make a custodial arrest for DUI. Hence, if you have the right set of facts and make an excellent record, you now have a better chance of winning the client's case on “insufficient evidence of impairment” grounds, relating to the arrest decision, than in a post-conviction appeal. See Ojemuyiwa v. State, 285 Ga. App. 617, 647 S.E.2d 598 (2007); Slayton v. State, 281 Ga. App. 650, 637 S.E.2d 67 (2006);Shaheed v. State, 270 Ga. App. 709, 607 S.E.2d 897 (2004); Allen v. State, 257 Ga. App. 246, 570 S.E.2d 683 (2002); State v. Batty, 259 Ga. App. 431, 577 S.E.2d 98 (2003); State v. Gray, 267 Ga. App. 753, 600 S.E.2d 626 (2004); State v. Ellison, 271 Ga. App. 898, 611 S.E.2d 129 (2005); State v. Bass, 273 Ga. App. 540, 615 S.E.2d 589 (2005); State v. Sanders, 274 Ga. App. 393, 617 S.E.2d 633 (2005).
Like most of Georgia case law, for every favorable appellate decision on an issue, there are are two or three atrocious appellate decisions. A series of frightening cases point to either questionable trial presentation by defense counsel or atrocious decisions by the Georgia Court of Appeals, or both:Austin v. State, 200 Ga. App. 91, 406 S.E.2d 500 (1991) (defendant was changing tire); Marsh v. State, 211 Ga. App. 751, 440 S.E.2d 478 (1994) (defendant carrying gas can to his inoperable car);Rojas v. State, 235 Ga. App. 524, 509 S.E.2d 72 (1998).
Contact a Paulding county criminal defense lawyer to see if they can meet their burden of proof on the elements of DUI.
