Saturday, December 27, 2014

Was the client who was charged with operating a motor vehicle actually in possession of the motor vehicle? | Paulding county DUI lawyer


§ 1:4. Definitions—“Driving” or “operating” a “motor vehicle”
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).

It is important that you contact a Paulding County criminal defense lawyer who actually knows what he's doing. If you failed to contact a lawyer right away to help you with your case then you're only asking for trouble down the road.there maybe problems with the stop, which means the officer did not have reason to pull you over.paulding County criminal defense lawyer can obtain a copy of the video and watch the video to see if the stop was done correctly.you need to hire a lawyer who is familiar with the criminal justice system in Paulding County.


Contact a Paulding county dui attorney to handle your dui case today.

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