Paulding county criminal defense lawyer | Terry stop

§ 1:5. Driving under the influence—O.C.G.A. § 40-6-391(a)(1)—Misdemeanor—Statutory wording

O.C.G.A. § 40-6-391(a)(1) [the so-called “less safe” DUI] provides:

• (a)

  (a) A person shall not drive or be in actual physical control of any moving vehicle while:
  
  

  • (1)

    (1) Under the influence of alcohol to the extent that it is less safe for the person to drive[.]
    
    

In seeking to prove a “less safe” DUI, the State may or may not have a chemical sobriety test result to support this count. A conviction for this type of DUI offense can be based entirely upon circumstantial evidence about a “moving vehicle.” See Jenkins v. State, 223 Ga. App. 446, 478 S.E.2d 143 (1996), where defendant was passed out in another person's private driveway, behind the steering wheel of a parked car. Also see Hutto v. State, 259 Ga. App. 238, 576 S.E.2d 616 (2003), police officer noticed defendant sitting on a motorcycle parked at midnight close to the edge of the highway and approached the defendant because the officer believed this to be a “traffic hazard.” Conviction for DUI and operating an unregistered vehicle affirmed. Also see State v. Underwood, 257 Ga. App. 893, 572 S.E.2d 394 (2002) for a good description of what the word “stopped” means. In that case, the officer approached Underwood's already stopped car. Under this “first tier” of police citizen encounter, as set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), no articulable suspicion is needed to justify police inquiry. The court similarly held that evidence obtained after the police officer spoke with the defendant through an open window of defendant's truck was not the result of an unlawful search or seizure where the police officer merely approached defendant's stationary vehicle to find out what was going on. Because he was already parked outside an ex-girlfriend's house, the police encounter did not begin as a "second tier" Terrystop. There was no evidence that the officer was threatening or coercive or that defendant was "seized" by any show of authority or physical force.

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