May 14th, 2015: Aol news reported that 43-year-old Jason Phipps was arrested for DUI after letting his sober 15-year-old daughter drive him and his wife who were intoxicated using her learner’s driver’s license after the Zac Brown Band Concert in Alpharetta at the Verizon Wireless Amphitheater.  The argument posed by police is that you have to have a completely sober adult supervisor “capable of exercising control over the vehicle if necessary” according to Alpharetta Police spokesperson Lt. John Borsey.  The Alpharetta Police Department probably should make sure their errors and omissions coverage is up to date because there will likely be a false imprisonment and malicious prosecution lawsuit coming down the pike.

First, the Georgia DUI state law codified at OCGA § 40-6-391, titled ” Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for the second time; endangering a child,” provides in pertinent part,

“(a) A person shall not drive or be in actual physical control of any moving vehicle while…”

Supervising a 15-year-old driving is definitely not driving. Further, being capable of exercising control is not “actual physical control.”  The Georgia DUI statute does not even utilize the term “capable.”  Second, Georgia law does not require you to be “completely sober” to drive. To be DUI in Georgia, you must be either less safe to drive which alternatively is defined as incapable of driving safely; or over the legal limit while in actual physical control of a moving vehicle.  Alpharetta police need to quit subjectively making up laws on the street and objectively enforcing the laws on the books. In other words, just because it makes a police officer mad doesn’t make it a crime.

-Author: George Creal

Atlanta DUI Lawyer | DUI Attorney Atlanta