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DUI Georgia, car parked when arrested

My boyfriend was driving home after drinking and he caught a flat tire, ran up on a curb and grazed a light pole. He got out to change his tire and after about 20 min, while he was on th side of the road, a police officer drove up. He called me to come pick him up. When I got there the officer was parked behind him while he attempted to change his tire. After a while another police officer pulled up, noticed the damage on the car, noticed he was drunk and proceeded to arrest him for dui. He blew on the sid eof the road but the test didn't register so they tested him again at the police station. He blew a 158. We live in Georgia and this will be his 2nd dui (his last one was two years ago). My question is, are there any avenues we should explore as far as beating his charges since he was no caught driving or even in his car? The car was not even on, nor were the keys in the ignition. We have researched and we discovered that in Georgia for a second dui conviction in 5 yrs there is a mandatory "hard" suspension of license for 12 months. Which means no permit to drive to work. Is there any way to bypass this penalty? He works 45 minutes away from his home and if he can't get to work, then he can't make money, and he can't pay fines. Someone, please help. We are so lost. Thanks!!!

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Attorney answers (4)

Avvo Pro

Reputation Level 15
This is a serious charge. He can go to jail and lose his license and job. You need a lawyer. If he didn't admit to driving the vehicle after drinking he has a great chance of beating the case. Even if he did he still has a possibility as the first officer didn't arrest him. He can argue that at the time he was driving he was sober but became intoxicated while changing the tire because it takes a while for alcohol to enter the blood stream.

YOu need a good lawyer. Many of the best DWI lawyers are in Georgia. Call one tomorrow and get the help you need. Given the prospects get the best you can. This will be his best chance.

Good Luck
1 person marked this answer as good

Avvo Pro

Reputation Level 9
In order to get a conviction for a DUI charge one of the things that the prosecution must be able to prove is that the defendant drove or "was in actual physical of a moving vehicle" while under the influence or over the limit. Proof of driving can be made by direct evidence or circumstantial evidence. Direct evidence could be a confession or the testimony of an eye witness. In this case it appears that the only eye witness would be you. Maybe the police did not get your name. If your boyfriend did not admit driving the the prosecution will have to use circumstantial evidence. This could include ownership of the car, testimony that the car wasn't there an hour earlier, etc. And even if they can prove he drove at some point, how will they prove that the alcohol consumption wasn't after the driving? In a nutshell, I believe that there may be several good issues for your boyfriend. I absolutely advise him to get an attorney. The consequences for a second conviction in five years include 12 months of no driving (no permit at all!), followed by six months with a limited permit & an ignition interlock device, mandatory jail, probation, 30 days (or more) of community service, a fine, DUI school, lots of alcohol counseling, tag forfeiture and his picture in the paper. He needs a DUI attorney.
2 people marked this answer as good

Reputation Level 10
Simply stated, the State may attempt to make a 'circumstantial' case.

Reputation Level 10
Simply stated, the State may attempt to make a 'circumstantial' case.

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