Can I be charged with a DUI if the car was not on?

Question

I was outside my car getting something out of my trunk. The cops pulled up on me and asked for identification and I refused. They arrested me and charged me with DUI.  They did not witness this vehicle in motion.

Jules N. Fiani · Answer

Yes.

Jacob P. Sartz · Answer

I'd recommend you retain a lawyer to assist you with this matter. You have a right to council. If they issued a ticket for a DUI charge, then yes, you have been charged. Make sure you report to court as specified on the ticket and you'll be arraigned.   Speaking generally, someone charged with an offense is presumed innocent until proven guilty beyond a reasonable doubt. The burden of proof is on the prosecutor. Simply because a person gets charged does not mean that they will be convicted. They may only be guilty of a lesser offense or no offense at all. Ultimately, it depends on the proofs. Prosecutors may attempt to prove cases through "circumstantial evidence." The fact finder, a judge or jury, is allowed to make inferences that certain events occurred based on certain factual scenarios. Prosecutors can prove their case beyond a reasonable doubt by relying on circumstantial evidence; however, their cases tend not to be as strong if they need to rely on that evidence.   I'd recommend you retain a lawyer or request that the court appoint you one at the public's expense when you are arraigned.

Kevin O'Grady · Answer

They may try and argue that you were in actual physical control even though you were not driving.  If you want to have the best opportunity to remain conviction free, hire an attorney that will fight for you all the way.  This is only one aspect of the case that can be challenged.

Seth Schraier · Answer

One of the main factors determining your culpability here will be whether your key was in the ignition when the cops pulled up.  "An established line of authority in New York and elsewhere holds that for the purposes of offenses for driving while intoxicated under the Vehicle and Traffic Law, operation of the vehicle is established on proof that the Defendant was merely behind the wheel with the engine running without need for proof that the Defendant was observed driving the car, ie., operating it so as to put it in motion."  Therefore, if the keys were in your ignition, and especially if your car was running, the fact that you were not physically behind the wheel doesn't necessarily mean that you can't be arrested for DUI.  However, the cops would still have to show that they had probable cause to arrest you for the DUI or ask that you take the breathalyzer.

Steven D. Dunnings · Answer

You can be charged but you might be able to get it dismissed. there may be more factors you are unaware of, such as whether the police dispatch received a call about someone driving erratically in a vehicle similar to yours.

Geoffrey MacLaren Yaryan · Answer

Yes you can. If the circumstances suggest you had been driving thre  car,  then you can be arrested for a DUI.

Michael J. Breczinski · Answer

That depends on the evidence. Maybe someone saw you driving and can testify to that. Your attorney would get a copy of the police reports and be able to advise you.

Michael Nichols · Answer

Probably not unless the car was parked illegally or still in the roadway or in a place posing danger to persons or property.

Craig Elhart · Answer

The entire facts of the situation would have to be reviewed to be able to provide an answer.  You should consult with an attorney immediately.

Daniel Kieth Martin · Answer

First of all, pretty much anyone can be charged with almost any charge, the real question is can you be convicted of DUI. The law requires that a person actually drive a vehicle while their driving ability is affected by drugs or alcohol. However the driving can be proven with circumstantial evidence. So if you told officers that you were drinking at a friend’s house and you were on your way home when you decided to get something out of the trunk, that could be used to prove that you were drunk when you were driving assuming it had been a short while before.  The best thing you can do right now is to hire a criminal defense lawyer to help you with this case.

Louis Leibowitz · Answer

Obviously, driving is an element in driving under the influence. However, driving has a very broad meaning in Maryland. You should talk to a lawyer about all of the facts so that you can put on the best defense at trial. Don't expect the prosecutor to just drop the case.

Jared Altman · Answer

Yes. You can be charged but you may be able to beat it.

Jared Austin · Answer

They would somehow have to demonstrate that you must have been operating that vehicle while intoxicated on a public roadway. Based on what you stated, that would be very hard for them to prove. You need to retain an experienced DUI attorney to represent you or at least review the case file before agreeing to anything.

Elizabeth Zwiebel · Answer

If you had the keys in your possession then you had control over the vehicle.  Having control is equated to being able to drive it and then, yes, you could be charged with DUI.

Dennis Roberts · Answer

You should be able to beat the DUI but then they will charge you with being drunk in public.

Edward Blum · Answer

You can be charged.  The question is whether the cops need to see you driving for the arrest to be valid.  Except for limited circumstances they need to observe driving.  They did not, you might be able to suppress the arrest and tests.

David Cohen · Answer

Conviction for driving under the influence in California requires proof beyond a reasonable doubt on all of the elements including the driving element.  Driving is defined as "volitional movement" of the vehicle.  Essentially the government must prove that the vehicle moved as a result of some intentional action of the charged person.   However, volitional movement can be proven by circumstantial evidence and does not require personal observation of driving.  (There is a separate issue regarding the legality of arrest under Penal Code  836 for offenses that do not occur in the officer's presence.  This issue may prevail in an attack at the DMV administrative hearing.)  Therefore, if the car is parked outside your house, the hood is cold to the touch, the keys are not in the ignition, there is no admission to driving or witness to driving, then the circumstances would not lead to the conclusion of driving.  If, however, the vehicle is parked on the side of the highway in a remote area, the hood is warm, the keys are in it, there is no one else around, and the officer passed the area a few minutes earlier and there was no car parked in the location, then a jury could reasonably conclude you had been driving.  Each case is unique to its facts,  I urge you to consult with an experienced attorney in the county you are being charged in.

Michael Lynch · Answer

Unfortunately, yes.  Most misdemeanors must be observed by the Officer  in order for him to arrest someone.  However, an exception to that rule  is covered by Vehicle Code section 40300.5.  An Officer can still arrest  when any of the following exists: (a) The person is involved in a  traffic accident. (b) The person is observed in or about a vehicle  that is obstructing a roadway. (c) The person will not be apprehended  unless immediately arrested. (d) The person may cause injury to himself  or herself or damage property unless immediately arrested. (e) The  person may destroy or conceal evidence of the crime unless immediately  arrested. So while the arrest might be lawful, the District Attorney could still  have difficulty in proving all the necessary elements for a conviction.

Thomas Mueller · Answer

It is likely that you will be charged. The D.A. will try to prove you were  driving. They will check if  there was anyone else in or near the vehicle, if it was your car, if there were keys in the vehicle, was the engine warm and did you admit driving the car to that location.

James E. Oliver · Answer

Prosecutors frequently charge weak cases. This is a weak case. If you were caught in the car, but not driving, your case would be more properly termed a "physical control", which means that you were in physical control of a motor vehicle while impaired.  If you were safely off the roadway while in physical control of a car while drunk, you would have a great defense. The legislature wants people to pull over if they realize they've had too much to drink. Here, the cops aren't even sure that you were driving the vehicle. That raises a corpus delicti issue. This is a fancy way of saying that there is no proof that you were driving, which is required under the DUI statute. No proof of driving means possibly getting the case dismissed.  You still have to convince a judge that you weren't driving, and some judges are more open minded than others, so nothing's guaranteed. Of course, the cops frequently tell a different story in their police reports in an attempt to tie up any loose ends that might help you defend your case

Kenneth Wincorn · Answer

You can be charged but they will not be able to prove the case.  A good lawyer will be able to help you.

Philip Hache · Answer

It is possible to get charged with a DUI but actual driving is an element that the prosecutor will have to prove.  They may be relying on a 911 call of a civilian who saw driving and reported your plate.  Although someone can always call and make that up as well.

Daniel Guerrero · Answer

Given that you were outside the car, it sounds like you may have a defense, especially if the keys were not in the ignition.  If there are witnesses to recent driving conduct, or circumstances to suggest an inference that you just drove to that location and stopped or if you made statements to that effect, the case becomes harder to defend.  The cops don't necessarily have to see the vehicle in motion if the circumstances suggest you wouldn't be in that particular place unless you just drove there.

Michael Garber · Answer

If you're in a location that you had to drive to to be there, and no one else was with you, you can be convicted of DWI. You don't have to be actually driving the car when the cop sees you.

Robert English · Answer

You can still be charged. If you are not in a location such as your home, the question will arise as to how did you get there without committing a DUI. The lack of observed driving is an argument that weakens the prosecution case but it is not fatal to the case.

Stephen Freeborn · Answer

How do you know that they did not witness the vehicle in motion?   Is it possible that someone else saw the car in motion and called the police, who then responded? You also don't say where the vehicle was parked. If you are under the influence, the keys are in the ignition, the car is running, you could be charged with physical control.

Steven Pisani · Answer

Driving while under the influence requires that the prosecution prove that you were in actual physical control of a vehicle and that you were impaired by drug and/or alcohol. Physical control can be defined very broadly and you may be held culpable. I suggest you contact a criminal defense attorney to discuss your case and flush out the specific facts to defend yourself. A DUI offense can end up costing you a lot if you simply plead guilty.

Jason Savela · Answer

If these are the extent of the facts, you should be fine - but if they have a witness that the car was being driven, maybe the engine was warm or something else - BUT cops usually need to put you in the driver's seat with keys.

Jeff Yeh · Answer

They can charge you with DUI based on circumstantial evidence. You need to hire a DUI specialist ASAP, because you have only 10 days to protect your license. "No drive" claims are often made, and prosecutors are used to dealing with them, so you do need an experienced DUI attorney to help you in court as well.

Mark R. Thiessen · Answer

They can certainly charge you but you have a wheel witness issue.  Who saw you driving?  Did you admit to driving?  Is there a defense that you weren't driving?    You need to hire an experienced DWI trial lawyer in your area and fight this with everything you got.

Kenneth Hallum · Answer

The issue you face is "driving" as defined in the DUI statutes. There are various decisions on control, a term "constructive control," Sounds as if you should consult a DUI lawyer, you are being persecuted for merely being around a car, and to prosecute you they must have more than just getting into the trunk.

Eric Sterkenburg · Answer

To be charged with a DUI you do not have to be driving the car at the time of the officers first contact. If a person has passed out behind the wheel of the car with the keys in it is enough to check that person for a DUI. Under the facts that you presented the officer may have seen you drive to where you stopped. If they did not see the car in motion it could be that your keys were still in the car. You did not help yourself by refusing to show the officer your identification. As to why you received a DUI citation because of this incident your attorney will tell you after reading the police report.

Ardalon Fakhimi · Answer

It is not uncommon for a person to be charged with a DUI even though he/she was not observed driving.  There are a variety of factors that the police will use to establish that you had been driving the vehicle.  These may include the location of your stopped car, keys in the ignition, your statements, witness statements, the absence of other possible drivers, etc...  Although prosecutors typically file DUI charges in these circumstances, you may have very strong defenses.  We refer to these types of cases as "no-drive" cases or a "no-drive" defense.  You should contact a qualified DUI lawyer to setup a consultation.

William C. Gosnell · Answer

The issue is being in control of the car. Hopefully the keys were not in the ignition and  the car was not running. Hopefully you were in your driveway where you live. If you were out and no other driver was present that could be a problem. Hire a good criminal defense lawyer immediately.

Jonathan Willett · Answer

If the keys were in the ignition, you can be charged.

Michael L. Aaronson · Answer

Their cases a circumstantial evidence case since they did not see you operating a motor vehicle on a public highway, which is a requirement that the state must prove. They will try to prove that you operated a motor vehicle by circumstantial evidence.

Steven Fairlie · Answer

They can only convict you if you were in control of the vehicle.  Lots of people have been found to be in control of a vehicle while asleep with the keys in the ignition, but I think if you were outside the car that if a real stretch.  I bet they will say they felt the hood and it was warm and argue circumstantial evidence that you actually drove the car.  You could beat this if they can't prove that no one else reasonably could have driven it.

Jonathan Baner · Answer

You were charged with a DUI, and you ask if they can?  They did.  Actually, the prosecutor did (apparently) the charging because police have no authority in that regard.  However, if it is factually true that you were not driving the vehicle at any point, then it is not a crime to access a vehicle's trunk while drunk (no matter how drunk).  The issue is whether they have probable cause to believe you had been driving the vehicle while intoxicated.  (actually that is one of the MANY issues that must be discussed with a criminal law attorney such as myself who can only give legitimate advice upon a thorough investigation).

Jacob Braunstein · Answer

A person can be charged with DUII even if the officer did not observe the person driving. However, the officer must have probable cause to believe the person was driving the vehicle while intoxicated. So, if a person admits to having driven the car and having consumed intoxicants, an officer may believe he/she has probable cause to arrest. Such cases are harder to prove so you will want to contact an attorney that specializes in criminal defense.

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Can I be charged with a DUI if the car was not on?

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