How can I defend myself from a DUI if my friend was driving?

Question

I was arrested in April for a dui. I was somehow sleeping in my car in the drivers seat, and a friend sleeping in the passenger seat, my other friend was driving my car. We were supposed to go home. As I woke to cops knocking on my window, I noticed my friend (the driver) was nowhere in the car. How can they prove I was drinking and driving if my car was off, parked and we were sleeping?

Thomas Tomko · Answer

In Michigan, there are a series of cases which address this situation, and which may answer your questions.  You should consult an attorney in your jurisdiction to discuss what can be done in your case.  It is too lengthy a discussion to explain each of the reported cases in this type of situation.  Suffice it to say that if you are in a position to operate the vehicle, then you can be deemed to be operating for purposes of a DUI conviction.  I hope that this was helpful.

Maureen Baldwin · Answer

This is really a case where you will need an attorney. If you cannot afford an attorney, contact the Public Defender. Your case may very well be winnable, but you dont just get to go in and explain things. You really need professional help here.

Michael Lynch · Answer

Good point.  They may not be able to prove the driving.  It sounds like  the car was turned off and had been for awhile.  Was there any alcohol  in the vehicle?  Were you in fact under the influence? Were you tested?   Usually the police recognize they have a difficult case to prove, but by  arresting you they prevent you from driving after they leave.  Even if  you weren't driving they might have a case against you for being drunk  in public.  Good luck.

Terry Nelson · Answer

Proving he was driving is not likely to happen unless he admits to it and credibly confesses the crime, risking his own arrest based upon the confession.  Even with that, you have only an argument and disputed facts. There is no guarantee the DA, judge or jury will believe that story.    Of course you can fight it.  Raise all possible defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments, for evidence suppression or other motions, or at trial. Effective plea-bargaining, using those defenses, could possibly keep you out of jail, or at least dramatically reduce it.   Go to trial if it can't be resolved with motions or a plea bargain.  There is no magic wand to wave and make it all disappear.  Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you.  If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate.  If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me.  Ill be happy to help use whatever defenses there may be.    Keep in mind a little free advice:   When you are arrested for DUI, whether alcohol or drugs, then upon release from jail or booking you were given documents that included a notice that you have only ten days to file a request with DMV for a hearing on an appeal of an automatic one-year suspension of your license imposed by DMV.  That is separate and runs consecutively with any suspension that may be imposed by the court.  Contact DMV and do so, timely, then appear at your scheduled DMV hearing and present any supporting evidence and testimony.  If you don't know how to do these things, then hire an attorney that does. If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me.

Theodore W. Robinson · Answer

Sorry to have to tell you, but the prosecutor can indeed prove the DWI through  circumstantial evidence and the fact that they found you in the driver's seat  with the keys in the car and nobody else around is usually pretty persuasive  proof to a jury.By the way, how did someone else drive your car while you were  in the driver's seat? That's a hard thing for anyone to comprehend in the first  place. If you can overcome that little problem, then you'll still have to  explain how your vehicle got to the side of the road without you driving it.  That friend could come forward and testify, but then, how did the friend drive  with you in the seat as well. And how did he/she leave the scene and get home,  etc. I trust you're seeing the difficulties with your explanation so far.  I suggest you consult with an experienced attorney who does DWIs and defend the  case after speaking with him or her in depth so you get everything worked out  ahead of time. Good luck.

Michael Palumbo · Answer

You need to retain counsel to represent you against these charges forthwith. This is what we do.

Andrew Subin · Answer

To prove a DUI, they have to prove that you were driving.  However there is another charge called "physical control under the influence."  You can be convicted of this if you are intoxicated and sitting in a car that is capable of being driven.  Were the keys in the ignition?   Were you asleep in the driver's seat when they got there?  Will your friend testify that he was driving?

Eric M. Mark · Answer

This is a common occurrence. It may be possible to prove you weren't driving, but the police and prosecutor are entitled to certain presumptions that you were driving if you were in the driver's seat. If you are in NJ or NY, call me for a consultation so I can get more facts. If you are in another state, find a DWI attorney. While you will pay the lawyer a fee, it could save you thousands of dollars and a conviction to do so. You are unlikely to succeed in defending yourself. It is simply too complicated an area of law.

Christopher McCann · Answer

In California, the district attorney must prove you actually drove the car. Not just that you were sitting in the driver's seat. Without an admission, your position in that seat is only circumstantial evidence. It is not strong evidence. You have a great defense. Your friend could testify on your behalf. He shouldn't have to worry about being charged since they would have no evidence against him. His admission to driving would not be enough. It would help you though.

Seth Bloom · Answer

The fact that you were not driving at the time of the arrest could serve as a possible defense in this matter. One aspect to consider is whether or not the keys were in the ignition at the time of the arrest. You should consult with a local attorney who, with more information about the circumstances of the arrest will be able to advise you how to proceed.  You should certainly consider hiring an attorney to defend you against DUI charges which can potentially be very serious and have long-term impact on your life if convicted.  If you are seeking legal representation in this matter in Louisiana, we invite you to contact our firm at the information on this page for a free case evaluation.

Jacob P. Sartz · Answer

You should consult with and either retain an attorney privately or request a  court-appointed attorney. Convictions for  OWI's or DUI's may result in jail  time, significant license sanctions, probation, and will potentially stay on a  person's criminal and driving record for a very long time. The right council is  very important. Your particular question would require "specific" legal advice  and a very thorough review of your police report, any discovery turned over by  the prosecutor, potential witness testimony, and a litany of other factors. This  answer does not contain specific legal advice. If you need specific legal advice  for your particular circumstances, consult directly with an attorney.   Speaking generally, anyone charged with a criminal offense is presumed innocent  until proven guilty.The prosecutor needs to prove their case beyond a reasonable  doubt. However, prosecutors can prove their case using "circumstantial  evidence." "Circumstantial" evidence is not necessarily the strongest evidence,  however, it could be enough for a potential conviction. Prosecutors will attempt  to persuade a judge a jury that certain "logical" (i.e., a happened and b  happened, therefore, you can "logically" infer from a + b that c happened, even  though nobody directly saw "c") inferences based on the circumstances should be  made when utilizing "circumstantial" evidence.  If the "circumstantial" evidence  is admissible and presented at trial,  based on that evidence, a judge or jury  could infer that a person is  guilty of the charged offense.  With OWI or DUI charges, it is especially important to retain legal council or  request a court appointed attorney.

Thomas Mueller · Answer

They can't prove it directly but they try to prove it by circumstantial  evidence. They will look at the following: Was the motor still warm Was it your car Were the keys in the ignition What statements did you make to them when arrested Whether there were any identifiable witnesses at the scene This would be a good case to talk to a lawyer about.

Andrew Roberts · Answer

You need to retain an attorney to deal with this. This is an interesting fact pattern. The burden of proof is with  the prosecutor. An attorney can help you navigate through this.

Michael Morgan · Answer

It sounds like you were charged with Physical Control and a key component of that charge is whether you had the keys in the ignition of the car. I would want to know how and why you switched places with your friend and ended up in the driver's seat before offering any further advice to you.

Craig Elhart · Answer

The law speaks of a person being in control of the automobile.  Sometimes this can occur from simply being in the driver's seat.  However, based on the information given, if your friend is willing to testify as to what occurred and the fact he was the driver, you may have a defense.  The assistance of an attorney as you work through this process would be helpful to you.

Bruce H. Lehr · Answer

DUI includes actual physical control. That means having the apparent ability to drive. If you were sleeping in the driver's seat with keys in the ignition then they can arrest for DUI.

Kevin O'Grady · Answer

You should immediately hire an experienced criminal defense attorney, especially one that does DUI cases. That attorney can begin an investigation now while witnesses still remember the events and are still relatively easy to find.  You may have an excellent argument with regard to whether or not you were actually physically in control of the vehicle, among other arguments.

Stephanie Hartung · Answer

In Washington State a person can be charged with "Physical Control" which is identical to a DUI charge and means that the person was in physical control of the vehicle even if not driving at the time of contact. You should absolutely speak to an attorney about your rights and possible defenses. I am not sure where this happened, but please feel free to call my office for a free consultation. If you are outside of my geographical area I would be happy to provide you general advice and a referral to another DUI attorney.

Jules N. Fiani · Answer

You have rights in this matter. The best way to defend yourself is to hire an experienced attorney to represent you and can help you. A very experienced and affordable attorney is the way to go.

Jared Austin · Answer

If you weren't driving why were you sleeping on the driver's side behind the wheel? How did your friend, if he was driving, get out of the driver's side and you somehow managed to get there and fall asleep? These are the same questions the prosecutor and a jury (if it goes that far) would be asking. They could argue there is enough evidence to infer that you were driving the vehicle, but usually they would like a stronger case than that. More information is needed in order to give you a proper answer. Have an experienced DUI attorney carefully review the police report and Data Master results. He may be able to spot problems that could get the charges reduced or dismissed.

Joseph Katz · Answer

You drove to where you parked and slept, didn't you?! Is your friend going to spring up and say, "Wait! No! Hey! I was driving, not my innocent Budrow there!" If not, you have problems. Can you prove that you drank after you drove (i.e., after you parked)? I really hate to see the cheesy District Attorney file this crap, after the cheesy cops made the fraudulent arrest. On the other hand... You have no witness, apparently, and you were "somehow" sleeping in the driver's seat (yeah, right). I mean, how could your friend "drive" if you were sleeping in the driver's seat. I do not know what else to tell you, my friend, but you need an evidence make-over.

Jeff Yeh · Answer

You can't. Representing yourself in a no-drive DUI is a sure way to get a DUI. First, the prosecutor will not even take you seriously, much less listen to what you have to say. Second, the prosecutor is unlikely to dismiss a case where you are representing yourself (just imagine the embarrassment!). If you find this hard to believe just try to go to court yourself and see what happens.

Howard Collins · Answer

They assume you drove to the point where you passed out.  You are in real trouble and you had better hire a lawyer.

Michael J. Breczinski · Answer

You need an attorney and would have to get the friend who was driving to testify  at trial. They may not have proof that you were drinking and driving but they  will probably want to take this to trial, so get an attorney

Russell West · Answer

Most state laws for DUI don't distinguish between actually driving your vehicle and being in physical control. If you were in the driver's seat with keys in the ignition or nearby then an officer can assume that you are in control of the vehicle and can arrest you for DUI if you fail a field sobriety or breathalyzer.  You may have a good chance of winning this case however in front of a jury.  Also probably a good chance of a reduced charged with a plea bargain.

Steven Decker · Answer

Surprisingly, in Illinois, if you were in control of the car, with the keys in the ignition or in your pocket, the police can make a strong case against you.

Philip Hache · Answer

If the ignition was off, that is helpful.  As are witnesses who can attest that you were not the driver.  I would advise hiring an experienced DUI attorney who is familiar with these types of cases.   I can be contacted through 1duilawyer.com if you would like a free consultation to discuss your case in further detail.  There are a lot of intricacies involved in defending a DUI case...even in cases where there is no driving witnessed.

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