fri night 7pm...........drink 2 beers, headed to my home outta state......45 mins into my drive.......stopped fueled up,headache powders and a 6 pack of beer.two powders washed down with a beer.30 mins later,i pulled onto a secondary road.(car overheating).........got out,unlocked trunk digging for flashlight.the big spot light.......i heard....."everything ok?"..i said my car overheating,.officer stepped out,said he smelled alchol....asked for my license,next thing i know..hand cuffs heading for jail.......my bac was .094.......is that considered a dui? btw i spent 12 hours in jail........
p.s. the 2 beers where before i left my house..........
Criminal Defense Attorney
Contact a local DUI attorney.
Generally, if the officer can testify that you had actual control of the vehicle and and driven the vehicle and consumed alcohol or drugs or any combination and that such consumption caused you to lack substantial ability to control or drive the vehicle safely.
However, you may have defenses or be able to create reasonable doubt to avoid conviction for a DUI.
All the Best
Medical Malpractice Attorney
Call a DUI attorney ASAP. Someone who actually handles DUI/DWI (be sure to ask them if they will go to trial, if needed) I have heard from people in the past that some attorneys will talk a good game, take their money and encourage a plea, when trial issues are present). I cannot say if you actually have trial issues or not, but a local attorney can determine that.
We are supposing that the cop didn't see you pull over, get out and start digging through your trunk. If he didn't see you, then it would be circumstantial. Cop: "engine was hot, defendant said car overheating, he had keys in his hand, no other driver in sight, blew a .09."
The answer(s) given a merely a suggestion. In no way do these answer(s) create an attorney-client agreement or any other agreement for legal representation. For legal representation, please contact an attorney in your area.
Criminal Defense Attorney
Perhaps. If there is evidence of recent operation or an admission that you operated. The question would be your condition while operating the vehicle.
In GA, .08 is the limit, so a .09 is DUI. It is also possible to be arrested even if the officer didn't see you driving. However, there may be other issues that could hinder the State in making a case. The most important thing is to get representation ASAP, so an attorney has the proper amount of time to fight for you. Please let me know if I can be of assistance. I would be happy to help.
M. Jason Rhoades
In Georgia, in order to be convicted of a DUI the prosecution must show that you were "in actual physical control" of a vehicle. Even though the officer did not see you driving the prosecution will use circumstantial evidence to try to prove that you were driving. This evidence will most likely include that the car was on the side of the road, the engine was warm, and you were the only person there. If you admitted to driving that may also be used to show you were in actual physical control. While the officer did not see you driving is a good start it is not, in and of itself, a silver bullet to make the charge go away.
James L. Yeargan, Jr. is licensed to practice law in the State of Georgia. All information given is based only on Georgia law, and is not directly applicable to any other jurisdictions, states, or districts. This response, or any response, is not legal advice. This response, or any response, does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information. Any state specific concerns should be directed to an attorney who is licensed to practice law in that respective state.
Although the officer didn't see you driving the prosecutor will use circumstantial evidence that you were "in physcical control" of the vehicle. Examples: you were the only person at the scene, the hood of the car was warm from recent driving, any admission that you made concerning how the car was driven to the site etc. Your question does not give any information about field sobriety tests. Officers are trained in GA to administer 4 field sobriety tests in order to help them establish probable cause to arrest you for DUI. I would recommend that you IMMEDIALTLY contact an experienced and qualified DUI defense attorney. .08 is the legal DUI limit in GA. From the info in your question I believe that you have some very significant issues that can be used in your defense if you are represented by a knowledgeable DUI attorney. Good Luck!!
The information provided in this response to a question is not legal advise and is provided only for general information purposes. My response should not be taken as legal advise as no attorney / client representation exists. Additionally, the information given in this answer is specific to the State of Georgia only and should not be applied to any other state.
Depending on what you told the officer, if you had empty beer cans in your car and he didn't see you driving, there is an argument to be made that he has no way of knowing that you didn't drink those beers after stopping there on the side of the road.
Again, that depends on what you told the officer and what he actually saw. I am absolutely not telling you to take the stand and lie. You should probably not testify and let your lawyer cross examine the officer about whether he can say with any degree of certainty that you DIDN'T stop on the side of the road because your car was overheating, then chug two beers before he arrived.