Is it a Defense To Your Georgia DUI To Pull Over and Sleep Until Sober?

Posted by Richard Lawson | Jul 15, 2014 | 0 Comments

Very often I am hired to represent people who were arrested while already pulled-over on the side of the road.  The client decided it would be safer to “sleep off” any impairment.  I have argued for years that to stop driving is the responsible thing to do.  It shows better judgment and is safer to others.

However, sleeping in a car can subject a driver to a DUI arrest.  While preferable to actual driving, our DUI statute specifically criminalizes being under the influence of alcohol while also being in physical control of a motor vehicle.  As a result, the issue of “physical control” becomes relevant to a potential DUI arrest and prosecution.

Georgia courts have interpreted “physical control” of a motor vehicle to include when the car is on, or when the keys are in the ignition, even when the car is in park and off a public roadway.

However, According to Georgia Law, You Do Not Even Have to be in “Physical Control” of a Vehicle to be Charged with DUI:

Georgia law (yes this read poorly but it's the law as written) makes it unlawful (see below) to have an alcohol concentration of 0.08 grams or more at any time within three hours after such driving or being in actual physical control, from alcohol consumed before such driving or being in actual physical control ended

Accordingly, if there is evidence a vehicle was driven within 3 hours of alcohol impairment, from alcohol consumed before driving, a person could be successfully prosecuted for DUI in Georgia.  So, sleeping off a DUI could result in a DUI charge, even if the driver is not in physical control of the vehicle at the time of the arrest.

A review of Georgia DUI Law Shows:

Under § 40-6-391 (a), a person shall not drive or be in actual physical control of any moving vehicle while:

  1. Under the influence of alcohol to the extent that it is less safe for the person to drive;
  2. Under the influence of any drug to the extent that it is less safe for the person to drive;
  3. Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;
  4. Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;
  5. The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or
  6. Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.

Regarding sleeping in the car and DUIs, the key language in § 40-6-391 (a) is “actual physical control of any moving vehicle.”

The statute does not define “drive” or “actual physical control” in the state's definitional section. Georgia courts have been liberal in expanding the application of “actual physical control.” Georgia case law indicates that a court may consider the following factors:

(1) whether the vehicle's engine is running or the ignition is on;

(2) where and in what position the defendant is found in the vehicle;

(3) whether the defendant is awake or asleep;

(4) where the ignition key is located;

(5) whether or not the headlights are on; and,

(6) whether the vehicle is located in the roadway or is legally parked elsewhere.

These factors are not all-inclusive, and the outcome of the case depends on the specific facts of the incident.  Furthermore, It is the opinion of my office to still pull over and stop your vehicle if you are unsafe to drive, for any reason.   Your safety and the safety of others is far more important than a DUI arrest.  Most importantly, if you seriously injure or kill someone while under the influence of alcohol or drugs, you will be facing a felony DUI prosecution, and you will have ruined the life of someone else as well.

It is far more responsible to pull over, regardless of the risk of receiving a DUI.  We can help you if you make that responsible decision.  Never risk your life or the lives of others.

If you have been charged with DUI, call DUI Attorney Richard Lawson.  Put his experience as a former DUI prosecutor to work for you.  He is available 24 hours a day, 7 days a week.  Act now, because you only have 30 days to save your driving privilege.  Our DUI lawyers, Georgia Traffic Ticket Lawyers, and Atlanta Traffic Ticket Lawyers are here when you need us most. 

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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