What is Physical Control in Georgia? Georgia Designates a Driving and the Keyless Ignition Trap.

What is Physical Control in Georgia? Georgia Designates a Driving and the Keyless Ignition Trap.

You went out and had some drinks with friends, and you thought you made a good decision in Buckhead, Midtown or the BeltLine. You’d left your car parked and walked back to it, got into the back seat and decided to sleep it off until you felt sober enough to drive. An hour later, however, an Atlanta police officer appears at your window and demands that you conduct field sobriety exercises and then is arresting you for a DUI.

To many of Georgia’s drivers, this is an unearned nightmare. How is it you can be charged with driving while intoxicated when you were sleeping, the engine was off, and you were not even in the driver’s seat? The solution to that is what Georgia law considers “actual physical control of a vehicle,” and that was much simpler and safer when cars required keys to start, but it’s become more complex and hazardous in today’s keyless ignition era.

A review of what constitutes Actual Physical Control under Georgia law.An explanation of what constitutes Actual Physical Control under Georgia law.

In Georgia it is illegal to be in the actual physical control of any vehicle that is in motion while intoxicated or under the influence of drugs and alcohol under Georgia Code Section 40-6-391. Keep in mind that the law doesn’t mandate that the vehicle be moving or driving down the street when the police officer shows up.

Whether the driver could and does control the vehicle is the focus of Georgia courts when assessing actual physical control. In the past, this has been just that physical proof. Officers and prosecutors said they considered that the same person was actually in the driver seat with the key in the ignition, thus having “clear physical control.” An attorney could make a solid case that you did not have the instant ability to drive the car if the key was in your pocket or in the glove box or thrown in the trunk while you were sleeping in the back seat.

The Keyless Ignition Rules are Changing.

All of these traditional barriers have been eliminated in modern push-to-start vehicles. In a keyless ignition system, the car recognises a smart key fob in the car’s interior, automatically.

Any vehicle system is fully energized and ready to start if you are sleeping in the back seat of a push-start vehicle with the key fob in your pocket, or lying on the floorboard. The car is aware of the key. Many of today’s cars have a start button which will activate the starter motor, irrespective of whether you are reaching from the front or back of the car if you press it while your foot is on the brake.

In addition, conditions of heat and humidity in Atlanta present another danger. If the accessory power and/or engine are turned on to power the air conditioning while the driver is asleep in the vehicle, then prosecutors will claim that the driver was actively using the vehicle. To them, if the climate control is on or the radio is on, then you were directly controlling the vehicle while impaired.

In metro Atlanta, what officers look for when searching for a candidate.

In a parked vehicle, Atlanta police officers or Fulton County deputies will collect certain evidence to show actual physical control:

Has the engine been operating or has the hood been hot from recent use?
What is the driver’s location inside cab?
The key fob is located where with respect to the ignition system?
Is the headlight, tail light or interior light on?
Is the car parked in a legitimate spot in a parking lot or on the shoulder of a road such as Interstate 75 or Peachtree Street?

You will probably be arrested if an officer decides that you recently drove to that location while impaired or that at any moment you may drive the car because the car is close to your key fob.

Defending against keyless ignition DUI charge

If someone is arrested in this situation, it doesn’t mean they will be convicted. There are several technical and legal options available when charged with a DUI due to actual physical control in a keyless vehicle.

In these situations a defense strategy typically revolves around establishing that there was no intent to drive. The exact positioning of the key fob, vehicle telematics, digital records and physical arrangement of the car are all explored. Was the key fob wrapped or out of reach? Was the driver obviously using the car as a fixed shelter? Had the officer a lawful reason to conduct the welfare check or search the truck?

When impaired, it is the correct choice not to drive. But the technology has been helping cops to make it easier to cross that line from sleeping off a night out to driving a motor vehicle. When facing a DUI charge in Metro Atlanta involving a keyless vehicle or stationary car, it is important to have an experienced defense attorney who is knowledgeable about the latest trends in automobile technology and Georgia DUI physical control case law.