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Parked Vehicle DUI charge ..keys near ignition(passenger seat). 2nd DUI charge outside of five years.

Acworth, GA |

I was recently arrested for a DUI while parked with the vehicle off on a side road.
I was using my phone to get a ride home when a police officer pulled up and walked past my car to a unattended vehicle, as he walked by he asked me if i knew who's car it was and i said no and went back to using my phone.The officer returned to my vehicle and said he smelled the presence of alcohol and asked me if i had been drinking and i said no sir then the officer asked if i would do a sobriety test i responded no sir and tried to explain that i was just using my phone nothing more.Then the officer asked if i would submit to a breath test i declined but i said yes to a blood test so i wouldn't lose my license, he told me to exit the vehicle and he arrested me for DUI. Did he even have probable cause?

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Attorney answers 6


Possibly. These are complicated issues you bring up, and DUIs can be complicated cases. Because it's a second offense, the penalties can be pretty severe. I strongly suggest hiring a local DUI attorney, and you can use avvo to find a couple. Good luck.

Jasen Nielsen


Penalties can be more severe for a 2nd DUI, you have interesting facts. Your best bet is to contact a DUI attorney to go over all facts surrounding your interview and subsequent arrest.

You did not mention the blood test results? Could be critical in your defense.

Good luck.


This response is for general information only, no attorney client privilege has been established by this communication.


This sounds like the type of case that you can win in court, and an experienced DUI attorney with experience in the court where you case is pending could probably get it dropped or reduced. You definitely do not want a 2nd DUI, as you will be looking at the need to install an interlock devise on your car in order to drive at all during the next year. Also, if the officer did not return your license to you after the arrest, there is probably an administrative license suspension process ongoing. in such case, you would only have 10 days to request a hearing in order to prevent a one year suspension of your license, regardless of the outcome of the case in court. See a DUI attorney immediately to find out.

The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation


Circumstantial case, no driving manifestations, you did not state as to whether or not a blood test was given?

You should consult an Attorney that handles Traffic cases in the jurisdiction you received the citation to evaluate your options.


You certainly have a good Probable Cause challenge at a Motion to Suppress hearing. Just off of the top of my head - The Officer observed NO BAD DRIVING on your part, No evidence (listed in your question) of how long your car had been parked, No Failed Field Sobriety Tests, No positive Preliminary Breath Test and Keys NOT in the ignition. I'm sure that there will be additional defenses available to you after a DETAILED interview and review of the Incident Report etc. I have addressed these same issues in my book - Protect & Defend. If you would like additional information on this topic please pick up a copy of the book from or contact my office. You should retain the best DUI Defense Attorney that is available to you ASAP in order to defend yourself in this case. I hope this information has been helpful. Good Luck!!!
George McCranie

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.


Probable cause is a very low standard to meet. The odor of alcohol plus you being behind the wheel and your refusal to perform field sobriety may very well meet that standard. However, it is an issue that can be addressed in your defense through a motion to suppress. Moreover, from the facts as you have stated them, you appear to have a very good defense to the charge. You will need an attorney to help you with your defense. In particular, to successfully present a motion to suppress (which you have more grounds for requesting suppression than you may know), you need the assistance of a lawyer. I am a former Cobb County prosecutor. Call me if I can be of assistance.

Allen R. Knox
125 TownPark Drive, Suite 300
Kennesaw, GA 30144
(678) 334-1399