QUESTION
Can I be charged with a DUI if the keys were outside of the car and the arresting officer smelled?
Asked on Jul 30th, 2013 on DUI/DWI - Florida
More details to this question:
Admitted to smoking previous day but did not submit to any chemical test. Was not in possession of cannabis. Car was parked. Keys were outside of the car but on the floor near with no evidence of throwing them out while being arrested. Other person in the car admitted to being in possession of all illegal substances. Arresting officer did not find any cannabis that had been recently consumed (from a blunt, joint, bowl, etc.). Arresting officer DID find a cigarillo (unsplit, in package); also found a knife (illegal length), 6 grams of cannabis, and a scale (backseat passenger admitted possession of all 3).
6 ANSWERS
Bankruptcy Attorney serving Florissant, MO
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Law Offices of Thomas Corcoran Phipps
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If the officer can convince the prosecutor that three is reasonable cause to believe that you were driving while intoxicated, you can be charged. It sounds like a weak case.
Answered on Aug 05th, 2013 at 11:11 AM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Edward J. Blum
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The car needs to actually be moving to be convicted of DUI. Some states have operating under the influence statutes which allow prosecution for being in or around the car while drunk. California requires what's called volitional movement of the vehicle to obtain a conviction. I like to remind cops, prosecutors and people that the "D" in DUI stands for driving and they must prove that the person charged was driving to obtain a conviction. There are a couple of exceptions to the driving requirement and those are covered under Vehicle Code Section 40300.5. If you've been in an accident or if the car is blocking the roadway, then the cops don't need to see the car move. In addition to the requirement to prove Driving at trial, the common law and Penal Code Section 836 require that a misdemeanor offense occur in the presence of the cop who makes an arrest for the arrest to be lawful. A DUI cannot occur in the officer's presence, if he doesn't see (sense) driving. This may not be an issue if there are other crimes that can be charged.
Answered on Jul 31st, 2013 at 9:30 PM
Michael J. Breczinski
Where was the car parked? If it was legally parked then maybe all this stop and search is illegal. You should not be charged with operating a vehicle anyway.
Answered on Jul 31st, 2013 at 9:20 PM
Yes you can, via circumstantial evidence. Having said that, drug DUI's are difficult to prove, but you'll need to hire a DUI specialist if you want any chance of beating it.
Answered on Jul 31st, 2013 at 8:35 PM
Criminal Defense Attorney serving Oakland, CA
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Kapsack & Bair, LLP
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Under these facts you have a defensible case, an experienced DUI defense attorney, with a forensic toxicologist should be able to demonstrate that you were not under the influence of drugs when you were driving. Depending on the grounds for the contact, your friend may also have grounds to challenge the search and any charges that arise from the paraphernalia seized.
Answered on Jul 31st, 2013 at 8:12 PM
Social Security Disability Attorney serving Melbourne, FL
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Law Office of Robert E. McCall
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Florida law doesn't care about the keys. Our statute says if a person is in "actual physical control" of the vehicle they can be arrested for DUI. Sleeping in the back seat of a car, keys with someone else a person can be arrested and found guilty. Unfair? Yes, talk to the democrats in the legislature they passed the law and block any changes.
Answered on Jul 31st, 2013 at 1:14 PM