Can You Be Charged with a DUI in a Parked Car?

It is common knowledge that driving with a blood alcohol content (BAC) of .08% or more is illegal. However, what many people are surprised to learn is that you can also get a DUI charge in a parked car. Georgia’s drinking and driving laws apply not only when you are driving a moving vehicle — you can also be arrested for a DUI when you are in “actual physical control” of a car while under the influence of alcohol.

You Can Receive a DUI Charge in a Parked Car in Georgia

Under Georgia law, you can be arrested for a DUI if your BAC exceeds the legal limit, even if the vehicle wasn’t moving. Specifically, it is illegal in Georgia to operate or be in “actual physical control” of a motor vehicle if you have had too much to drink. While there is no statutory definition of “actual physical control” under Georgia’s parked car DUI law, courts focus on the totality of the circumstances.

In order to arrest you for a DUI in a parked car, the police must have probable cause that you had the ability to operate the vehicle while impaired by alcohol. While impairment can be demonstrated through the results of a breath test, field sobriety tests, and an officer’s observations, physical control can be established through circumstantial evidence. A court may consider a number of factors at a parked car DUI trial, including where you were inside the vehicle and whether the keys were in your possession. Critically, sitting in the driver’s seat with the keys in your hand can be indicative that you were in physical control of the vehicle.

Other factors that can play a role in determining “actual physical control” can include the following:

• The vehicle’s location — A court might evaluate whether the vehicle was in a parking lot or on the road at the time of the arrest.
• Warm hood or tires — If the hood or the tires on the vehicle are warm, this can indicate that it was driven recently.
• Keys in the ignition — Keys in the ignition can suggest that you intended to drive and had physical control of the vehicle, even if the car was never moved.
• Engine running — A warm or running engine at the time the officer arrived can suggest you recently drove the vehicle.
• Statements made to the police — Any incriminating statements made to the police that you recently drove or intended to drive can be used against you in court.

Notably, to show you were in physical control of the vehicle, the prosecution is not required to prove that you drove the car — only that you had the ability to do so. If you were “sleeping it off” in the back seat and the keys were not in the ignition, you may be able to assert a strong defense.

What Does the Prosecution Need to Prove in a Parked Car DUI Case?

It’s crucial to understand that sitting in a parked car, without more, is typically not enough for a jury to find you guilty of a DUI. The prosecution has a high burden of proof to meet in these cases. The Georgia DUI statute requires that the state prove the following beyond a reasonable doubt:

• You operated a moving vehicle or were in actual physical control of a moving motor vehicle
• While under the influence of alcohol to the extent it is less safe to drive; or
• You had an alcohol concentration of .08 grams (if over 21) within 3 hours after operating the vehicle ended.

The state must also prove that the alcohol was consumed before the driving ended. Thus, on a per se case, if you drink in your car but never move the car, you cannot be found guilty of a DUI as you did not operate a moving vehicle after consuming the alcohol. However, the act of driving while impaired — or having control of a moving vehicle — can be proven by circumstantial evidence even if you were not observed by police to be operating the vehicle.

Just because you were intoxicated while in a parked car, a DUI conviction is not automatic. The outcome will depend upon the specific facts and circumstances in your case. A skillful criminal defense attorney can assess your case and present the facts that are most favorable to you in the courtroom.

What are the Penalties for a DUI in a Parked Car?

The penalties for a DUI in a parked car in Georgia are just as severe as those for a DUI while driving. A first DUI offense — whether you were parked or driving — can result in a penalty of up to one year in jail, 40 hours of community service, and a maximum fine of $1,000, whether you were driving or in a parked vehicle. Your license may be suspended for one year and you may incur a fee to have it reinstated. A second DUI conviction within five years can come with a penalty of 48 hours to one year in jail, a maximum $1,000 fine, and 30 days of community service. Your license may be suspended for three years, and you may be required to participate in a substance abuse program.

A third DUI within five years of a second offense carries a minimum jail sentence of 15 days, a monetary fine of $1,000 to $5,000, and 30 days of community service. Additionally, your license may be suspended for five years, and you may be required to complete a substance abuse treatment program. If you have been convicted of three or more DUIs within a five-year period, you may be declared a habitual violator. In these cases, your license plate may be seized — and your photo, name, and address can be published in the newspaper at your own expense.

Contact an Experienced Georgia DUI Attorney

If you received a DUI charge in a parked car, it’s essential to have a knowledgeable attorney by your side who can mount a solid defense in your case. Depending on the facts and circumstances, a DUI attorney may be able to show that you did not have “actual physical control” of the vehicle.

The criminal defense lawyers at The McCoy Law Firm, LLC have decades of experience representing defendants for criminal matters and DUIs throughout northwest Georgia. Based in Cartersville, we serve clients throughout Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County, and Paulding County. If you’ve been arrested for a DUI, please contact us today to schedule a consultation to learn how we can help.