Is it possible to get a reduced charge for a DWI if I was not caught driving?

Question

DWI charge when a witness called to complain about me hitting a sign and followed me home, cops showed up and charged me with DWI and had a blood alcohol content level of .19. They did not actually catch me driving and there is no solid proof that I was intoxicated while driving. I didn't admit to drinking before I drove and I failed the on site sobriety test.

Gregory Casale · Answer

It sounds like you may have a valid defense. Your lawyer should look at Commonwealth v. Leonard, which stands for the premise that even an admission by the accused alone is not sufficient to prove the element of Operation for an OUI charge. This does not mean that the DA will reduce your charges. It is very rare that OUI charges are reduced. Instead, you should have your lawyer try the case. There is no guarantee in any trial, but you do have a solid Leonard defense. It is possible for the DA to prove Operation with other evidence so make sure you have a lawyer who is well versed in OUI defenses. Good luck!

Brian Steele · Answer

In Minnesota it is an affirmative defense that you consumed alcohol after driving.  That is, you would be required to prove that the alcohol you consumed after driving was sufficient to get you to the level of .19.  This is a case that should be vigorously fought as the state's cases sounds very week.  Be sure not to make any further statements to police or to the prosecutor.  I would hire a lawyer to assist you on this case.

Mark Bruce · Answer

Sounds like you need to get a lawyer and contest this.  If you were not observed driving by the cops they should not have arrested you, which could lead to a suppression motion to get rid of whatever evidence they collected.

Mark R. Thiessen · Answer

Sounds like a wheel witness issue. And if you have a big enough issue, the DA may reduce or even dismiss.

Clayton Lockhart · Answer

If they have an eyewitness that is prepared to come to court and testify that they saw you driving the vehicle while intoxicated, and they made the phone call to the cops, then the police officer doesn't have to be the one who saw you driving while intoxicated. OTOH, if they cannot bring that witness to court for whatever reason, then you have a better chance since the cops won't be able to say that you were driving while intoxicated.

Bernard Jones · Answer

Depending on EXACTLY what happened, you might be able to successfully contest this charge. We need a little more information.

Eric Sterkenburg · Answer

When you are arrested or cited for a DUI in California your license is taken from you by the police and you receive a 30 day temporary license. From this time you have ten days to request a hearing from the DMV. The DMV decides if your license will be suspended or not. The police write up a report and send a copy to the DA and to the DMV. The DA decides if charges will be filed and what charges to file. If charges are filed your first court date will be your arraignment where you will be asked if you plead guilty or not guilty. It is at your arraignment or the next court date (pretrial) that you will be offered a deal. To have the DA reduce your charges will take some barging by your attorney. An accident with a DUI is more serious than a standard DUI. With the facts that you gave in your question the DA can put on a case that could convince a jury to find you guilty. You do need an attorney for this case. If you qualify for the Public Defender talk with them at your arraignment before you hire a private attorney. They know the judge and the DA better in that court than a private attorney does.

Michael Jones · Answer

The ability to reduce or dismiss charges rests with the prosecuter and they frequently reduce chaarges under circumstances like you suggest.  I would suggest that you hire an experienced local attorney as soon as possible.

Dennis P. Mikko · Answer

There is always a chance that a plea bargain may be offered.  However, the prosecutor does not have to have police testimony that the crime was committed.  The witness who say you driving could testify to what he/she saw and the time they saw it.  The prosecutor would then have to show that you had consumed the alcohol found in your body before you drove and not after you got home.

Larry Dunn · Answer

In Nevada the law prohibits a District Attorney from reducing a DWI charge   unless there is insufficient evidence to support the stop/arrest or to   prove the case beyond a reasonable doubt. The Defense Attorney will review the   evidence and attempt to convince the District Attorney that there is   insufficient evidence and negotiate or plea bargain the charge to a lesser   offense. Each case is fact dependent. Whether the independent witness can   identify you as the driver or there is enough evidence to prove that you were  the  driver and intoxicated at the time of the driving will depend on the amount   and quality of the evidence.

Jeff Yeh · Answer

Yes. You have what is called a potential "no drive" defense. Contact a DUI specialist soon, because you have only 10 days to save your license. A "no drive" theory, if properly presented to the prosecutor, can often result in a reduction, thereby deleting many of the DUI consequences.

Jared Altman · Answer

You've got a real shot at beating this charge.

Ramona Hallam · Answer

You can still get a full blown DUI in California based upon a witness seeing you drive and testifying so.  Coupled with a .19, it places you at the wheel while intoxicated unless you drank once you arrived home and got your BAC that way.

Francis Cowhig · Answer

Hitting a sign is pretty good proof that something was wrong and if the witness can identify you as the driver of the car, along with a .19 blood alcohol level, they can certainly charge you with a DUI.  Depending on how long it took the police to come to your house after you got home and how long after their arrival you took a blood alcohol test, it may be hard to explain a .19 blood alcohol level.  I strongly suggest that you contact an experienced criminal law attorney for a face-to-face consultation and give him/her all of the facts surrounding your arrest.  He/she would then be in a better position to analyze you case and advise you of your options.

Cristian Michael Towers · Answer

It sounds like you may have aided the State in proving its case by #1 admitted to having ingested alcohol AND #2 having done so BEFORE driving.  I can't say that there aren't any other defenses, but your own admissions have potentially critically affected two big ones.  There certainly could be an argument that the interrogation performed upon you went outside the permissible scope of a well-being check.  If so, the officer should have read you your rights once you became the target of the investigation.  IF that is the case, the statements made by you would be inadmissable as improperly obtained.  Nevertheless, you need capable counsel to represent you as soon as possible.

Michael Morgan · Answer

There are generally 2 sides to every story. I have read your side which seems even-handed but lacks certain detailssuch as what court your case is filed into intelligently predict any possible plea bargains. Based on what you have presented, a reduction of charges is conceivable.

Dean Valente · Answer

If they have the witness they have their case for OWI. Police don't have to witness the driving if they have the lay witness who will testify to who they saw driving.  You may still negotiate a reduced charge depending on the police agency, prosecuting authority, judge and court policies, if any.

Terry Nelson · Answer

The honest answer is that no attorney can predict the outcome, nor even give an intelligent opinion, without reviewing and knowing all the charges, evidence, police reports, expected testimony, priors history, etc.  However:  The facts and  solid proof you already concede:  your car will shows damage;  the witness can ID you in court as the observed driver;  your BA was tested at .19, which is three times the legal limit, which frequently results in  enhanced  penalties, not reduced charges;   you fled the scene of an accident, so I wouldn't be surprised if the DA filed that additional charge.   You need good counsel to try to stay out of jail.   When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do?  Raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial.  While this isn't a 'capital case', you certainly face fines and potential jail, so handle it right.  If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney who does, who will try to get a dismissal, charge reduction, diversion, program, or other decent outcome through plea bargain, or take it to trial if appropriate.    A little free advice:   When arrested for DUI, whether alcohol or drugs, then upon release from jail or booking the defendant is given documents that include a notice that you have only ten days to file a request with DMV for a hearing on an appeal of the automatic suspension of your license imposed by DMV upon your arrest.  That is separate and runs consecutively with any suspension that may be imposed by the DMV, or the court upon conviction. Contact DMV and do so, timely, then appear at your scheduled DMV appeal hearing and present any supporting evidence and testimony.  If you do not win the appeal, you can still apply later for a restricted license for to/from work and school, etc., after serving at least of the full suspension period.  If you don't know how to do these things effectively, then hire an attorney that does.

Nathaniel Shafer · Answer

That could help you in plea negotiations. It depends on how determined the prosecutor assigned to your case is to getting the maximum penalty. Hire a talented lawyer and your chances of getting a reduced charge will improve.

Steven Fairlie · Answer

It is possible but you should really have a detailed consultation with a good DUI lawyer as there are a lot of aspects to your question.

Michael Nichols · Answer

If you were not driving there is not a charge to support, thus a charge reduction is still an overcharge.

James Edward Smith · Answer

Too strong a case to reduce.  Eyewitness and high bac.

Thomas Ogas · Answer

This is the sort of case that you fight.  As a result of fighting the case, you may be offered to settle for something like a Reckless Driving if the DA believes they can?t easily prove the case.  However, it may be that they cannot prove the case at all, in which case, your lawyer should push for a dismissal.

Gary Moore · Answer

You may have a strong defense.

Gregory Crain · Answer

No but if witness doesn't show they can't establish you were driving.

Gregory Graf · Answer

This is a jury question and it is hard to answer without more information.  Will the witness be able to identify you as the driver?  It does not have to be the police that witnessed you drive.  Will the police say that you admitted to driving (police lie as often as defendants)?  How long after the driver said he saw you before the police arrived?  How long before you were given a test?  Was it blood or breath?  You need an attorney to analyze all of this along with the prosecution's evidence  to determine whether a trial is appropriate or if reaching a plea deal is more appropriate.  Further, your chances of having the charges reduced to driving while ability impaired increase if you have competent counsel.

Gary Russell · Answer

On the limited facts provided, it would appear that you may have an argument against the current charge.  Whether or not the prosecuting attorney wishes to make a plea offer is entirely up to his discretion.  With more information, a trained attorney might discover enough support to negotiate a favorable plea or even a dismissal.  Even if the prosecutor was unwilling to negotiate, if the evidence supports the argument, a trained attorney may successful argue a motion before the court to have evidence supressed or even the charge dismissed.  You should consult an attorney experience in drunk driving defense.

Michael Clinton · Answer

Any witness can testify as to your driving the vehicle.  Whether you  were drunk at the time is another matter and whether this can be proved  depends on facts you have not provided.  A good DUI attorney can help  you with this.

Steven Alpers · Answer

It is possible to prove such a case.  Police are allowed to investigate accidents, even if they did not witness the accident.  The statement of the person who called them and then followed you is enough to justify field sobriety tests.  The only question may be if you could have been drinking enough at home after you arrived to make you a .19.  The body takes about an hour from the last drink to fully absorb the alcohol into your blood stream.

Stephen Freeborn · Answer

It doesn't have to be an officer who sees you driving. An independent witness is good enough. If that person saw you driving and followed you home and is able to identify you and the vehicle, you are in for a potentially difficult case. A 0.19 is more than 2x the legal limit. That alone is going to make dealing the case difficult. Having said this, it is possible to deal any case, if the facts of the case warrant the dealing. Without knowing more about the facts specific to your case, I cannot say. My advice, retain the services of an attorney, who can review the facts of your case and advise you accordingly.

Bernal Ojeda · Answer

A witness followed you home. That means they saw you drive. Proof enough to convict you.

Russell Pietryga · Answer

Yes. Utah's DUI statute states, a person may not operate or be in actual physical control of a vehicle within the state if the person: (a) has sufficient alcohol in the person's body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test; (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; (c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control. In Utah there are several nonexclusive factors for assessing whether a person is in actual physical control of a vehicle. They are:  (1) Whether the person was asleep or awake in the vehicle, when the peace officer discovered them; (2) Where the vehicle is positioned; (3) Whether the vehicle's motor is running; (4) Whether the person was in the driver's seat of the vehicle; (5) Whether the person was the sole occupant of the vehicle; (6) Whether the person possessed the ignition key; (7) The person's apparent ability to start and move the vehicle; (8) How the vehicle got to where it was discovered; and (9) Whether the person drove the vehicle to the place it was discovered.  Utah Courts evaluate these factors under the totality of the circumstances. As you can see. Proving that you were intoxicated while impaired is going to be difficult for the prosecution. Unfortunately, you are going to have to try this case to a jury. Hope this helps

Matthew Kober · Answer

This is a very interesting and defensible case. The driver would have to affirmatively testify that he/she witnessed you specifically driving and describe you sufficiently to be able to positively identify you. Also, it will be difficult to prove what your actual BAC was while you were driving as opposed to when they took the breathalyzer.

John Brennan · Answer

Your blood level was high, and and any witness, not just the police officer, can witness that you were driving.  The issue would be the time delay, but is unlikely to be significantly in your favor.

Austin Hirschhorn · Answer

Depending on your prior driving record and whether you have any prior drinking and driving offenses it may be possible for you to work out a plea agreement that would lessen amount of points you receive and permit you to get a restricted license to drive.  The police have a witness that observed and reported your errant driving that I am sure they would subpoena if you were to have a trial in this case.  While you may think that the police have no solid evidence the observations of the person that called the police would in my opinion outweigh the fact that you didn't admit the driving and the fact that you failed the on site sobriety test and had a higher than .08 blood alcohol content would probably be admitted into evidence in most Michigan courts and would in my opinion outweigh any evidence you could produce that you were not drinking and driving.    You need to hire an experienced attorney that defends Drinking and Driving cases and follow his advice.  It may be necessary for you to take some mitigating action while the case is pending including alcohol screening, counseling and attendance at AA meetings if you have a history of drinking and driving offenses.  The final problem you will have to deal with is the Secretary of State who administers the driving privilege licensing.  If you are convicted of a drinking and driving offense or plead guilty, they will want to suspend your license and they have penalty provisions that must be satisfied to obtain a license in the future.

Find a Lawyer

Ask a Lawyer

Read Legal Articles

Ask a Lawyer

Read Legal Articles

Is it possible to get a reduced charge for a DWI if I was not caught driving?

35 ANSWERS

Find Local DUI/DWI Lawyers

Helpful Resources

Ask a Lawyer